N.S. judge made bias comments, then tried to cover it up

Nova Scotia’s top court has ordered a new trial for a man accused of sexual offences against his stepdaughter due to a series of remarks from the trial judge indicating he’d concluded the accused was guilty before final arguments were made.

Truro provincial court Judge Alain Bégin found the man — identified by the initials K.J.M.J. in a Nova Scotia Court of Appeal decision released Wednesday — guilty of sexual assault, touching a child for a sexual purpose, and invitation to sexual touching.

“The judge’s statements prior to conclusion of trial concerning K.J.M.J.’s credibility and his guilt respecting at least one charge transcend injudicious musing,” Justice Peter Bryson wrote in a decision from the three-judge panel.

“They displace the high bar of the presumption of judicial impartiality. They give rise to a reasonable apprehension of bias. That apprehension is amplified, not dispelled, by the judge’s attempt to conceal the remarks provoking that apprehension.”

‘Premature conclusions’

Bégin’s “premature conclusions and intemperate conduct denied K.J.M.J. the presumption of innocence, the right to make full answer and defence, and could have impaired the open court principle and appellate review,” Bryson said.

“It is most unfortunate that the judge’s behaviour has resulted in much wasted time, expense and distress for all concerned.”

The Appeal Court set aside K.J.M.J.’s convictions and ordered a new trial.

Before final arguments in the trial, Bégin criticized K.J.M.J.’s character and credibility, even expressing his belief that the man was guilty of one charge. Then he tried saying his comments were off the record and privileged.

‘Astonishing behaviour’

According to the Appeal Court, Bégin’s “astonishing behaviour” during the trial “requires a salutary reminder of the duty of all judges privileged to hear and decide cases in court: it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

In his appeal, K.J.M.J. argued “the trial judge made three serious errors creating a reasonable apprehension of bias by: offering premature conclusions on the outcome of certain charges, prior to the conclusion of trial; repeatedly making disparaging and conclusory remarks about K.J.M.J.’s character, triggering the forbidden risk of propensity reasoning; and attempting to ‘cover up’ his errors by directing that a part of the trial transcript be deleted from the record, in violation of the open court principle and the right of meaningful appellate review,” said the decision released Wednesday.

‘Zero doubt in my mind’

K.J.M.J. took “particular exception” to several comments made by Bégin during the trial.

“Is he swimming with angels? Look at me, sir,” Bégin said. “Is he swimming at angels and totally innocent? Absolutely not. Does he have issues and invited some young child to do stuff to him? Absolutely. Zero doubt in my mind. He’s got issues. Yeah, I’m looking at you. You’ve got issues, sir. You’ve got sexual deviance issues. There’s no doubt in my mind. Is it proven here? Probably not. Do you have issues? Yeah, you do. You should get them fixed. Do you understand?”

This was another one: “He’d be guilty of count three, inviting a child to do stuff,” Bégin said. “That’s where I’m at. Sexual assault, I’m not so sure. You know, the fact she says there wasn’t penetration, it was just a quarter or a half, that’s — that’s her mindset and that doesn’t convince me there was no penetration.”

‘Initial impressions’

When the Crown said they still wanted an opportunity to argue the case, Bégin characterized “his comments as ‘initial impressions,’ which should not be in the record,” Bryson said.

While it was recorded, Bégin said at trial that “it’s an off-the-record comment and won’t form part of the transcript because we just — I was invited to give some initial impressions and I gave my initial impressions. … I honestly don’t know where I’m leaning on this for the most part.”

A few moments later Bégin said to make sure the transcript didn’t include those comments.

“We know of the impugned exchange and the judge’s attempt to expunge it from the record because the transcriptionist asked the Crown whether it should be included and was instructed to do so,” Bryson said.

“Remarkably, the judge wrote to the Court of Appeal in reply to a court-requested inquiry of court staff regarding a restriction placed on the audio recording of the trial. The judge claimed a purported ‘privilege’ which he did not ‘waive’ and questioned the Crown’s authority to authorize inclusion of his ‘initial impressions’ in the record.”

‘Generous characterization’

The Crown didn’t defend Bégin’s comments “but argues that no reasonable apprehension of bias arises in the full context of the case,” Bryson said.

The Crown called Bégin’s comments “unfortunate,” but argued they came after all the evidence was in “and reflected merely a ‘preliminary appreciation of the case,’” Bryson said.

“The Crown says no ‘nefarious purpose’ should be imputed to the judge for attempting to delete part of the record. The impropriety of the judge’s conduct does not warrant the Crown’s generous characterization.”

The case involved K.J.M.J.’s 14-year-old stepdaughter, who told her mother he’d been “molesting” her since Grade 3. They went to the police in March of 2020. He was charged that June.

Denied all charges 

“K.J.M.J. testified in his own defence and denied all the charges,” Bryson said.

“At the conclusion of the evidence, before any argument had been heard, Crown counsel asked the judge on behalf of both counsel if ‘there’s certain parts or certain issues we should focus on’ and whether he had ‘any preliminary thoughts,’” Bryson said.

“After an evidentiary preamble, the judge then described K.J.M.J. as a ‘sexual deviant’ who was guilty of inviting the complainant of touching for a sexual purpose, about which he had ‘(zero) doubt.’ Further problematic remarks followed, concluding with the judge’s comments that he was speaking ‘off-the-record’ and directing exclusion of his comments from the record.”

Calling the teen’s evidence “compelling and credible,” Bégin “rejected the evidence of K.J.M.J,” Bryson said.

“He did not believe K.J.M.J.’s denials. He convicted K.J.M.J. of all three charges.”

Bégin sentenced the man to eight years in prison.