Iacobucci J.
Iacobucci J. — This appeal arises out of a dispute between two political factions on the Waterhen Indian Reserve, near Dauphin, Manitoba. After losing political control, the faction known as the “quorum” set up a blockade on the provincial highway leading into the reserve in order to keep out supporters of the other faction, led by the band’s Chief. They were charged with mischief and other crimes, which this appeal raises for review.
The appellants submit that the trial judge’s conduct prior to and during the trial gives rise to a reasonable apprehension of bias. They seek to support this allegation with a motion to file fresh evidence in the form of two affidavits deposed by appellant Arthur David Gabriel. The first affidavit explains their failure to introduce the evidence in the courts below, and the second sets out the evidence of bias. Essentially, it reveals that the trial judge’s law firm, in his prior practice as a lawyer, had represented certain groups within the reserve. In addition, the trial judge personally adjudicated an unjust dismissal hearing in favour of the wife of one of the appellants, represented one of the first people to be charged for participating in the barricade incident at a contested bail hearing (not an appellant before this Court), and was consulted by the appellants regarding the charges against them. The appellants also submit that the trial judge’s conduct during the trial, in peremptorily dismissing the unrepresented appellant Wilfred Catcheway’s motion to recuse himself, also raise a reasonable apprehension of bias.
The appellants also argue that the Manitoba Court of Appeal erred in not granting the adjournment requested by them, while they were unrepresented, to seek legal advice concerning the possibility of bringing a motion to admit fresh evidence. This request was denied without reasons. The appellants suggest that it is not clear why this motion was denied, assuming it may be owing to the fact that, in the opinion of the Court of Appeal, the evidence to support the conviction of each of the appellants was overwhelming.
The Crown essentially concedes that there was a reasonable apprehension of bias. Although it submits that the Court of Appeal did not err in denying the motion to adjourn to seek legal advice, it notes that the material submitted by the appellants “clearly demonstrates that the trial judge had professional dealings with some of the appellants while he was still a practising lawyer”. It also notes that, “[o]f great concern is the fact that the trial judge, while still a practising lawyer, acted for a co-accused (who was not tried before him) on a bail application, and apparently had access to the full police report respecting the accused who would eventually appear before him at trial”. The Crown also agrees with the appellants that the fresh evidence should be admitted.
Accordingly, we are all of the view that in the special circumstances of this case, the fresh evidence should be admitted. On that new evidence, we find that the trial judge’s prior involvement raised a reasonable apprehension of bias in accordance with the well-established jurisprudence on the issue. Therefore, we would allow the appeal, set aside the judgment of the Manitoba Court of Appeal and the convictions of the appellants, and return the matter to the trial court for a new trial before a different trial judge.