Recusal application against prosecutor-turned-judge rejected by BC Court of Appeal

Judge faced off with litigant in court multiple times prior to joining bench

Recusal application against prosecutor-turned-judge rejected by BC Court of Appeal

The fact that an appellate judge was once a prosecutor who dealt with the appellant numerous times did not prove that the judge wouldn’t decide matters fairly, the British Columbia Court of Appeal has ruled.

In Goldberg v. Law Society of British Columbia; Tran (Re), 2022 BCCA 287, Allan Dunbar appealed his first-degree murder conviction. The appeal was heard at the same time as two other convictions and one application to reinstate a conviction appeal. John Banks represented all the appellants in trial; Sheldon Goldberg represented all of them on appeal.

In the appeal proceedings, Goldberg argued that Banks was incompetent and had a history of cocaine abuse. The court dismissed all the appeals.

In 2006, the Law Society of British Columbia suspended Goldberg for professional incompetence in the three appeals. Goldberg resigned from the Law Society in 2009.

In 2017, Dunbar filed a petition to have the Law Society produce records with respect to Goldberg and Banks. The application was dismissed. While Dunbar did not appeal the order, Goldberg did. The LSBC sought to have Goldberg’s appeal quashed for lack of merit and standing.

Goldberg later sought recusal of the appellate judge since he served as a federal prosecutor until his appointment to the BC Supreme Court in 2007. Goldberg’s main argument was that the judge could not deal with him in an impartial manner because they had a few cases against one another, with the judge as prosecutor and Goldberg as defence counsel.

The recusal application was dismissed.

Judge’s former role as prosecutor not ground for recusal

The appellate court noted that Goldberg failed to cite any authority dealing with recusal applications.

Further, it found that none of the reasons for recusal advanced by Goldberg would cause an informed, reasonable, and right-minded person to think that the appellate judge would not decide matters fairly, whether consciously or unconsciously.

The appellate court then ruled on Goldberg’s specific arguments. On being required to submit a typewritten factum, the appellate court noted Goldberg’s considerable experience with court rules and no evidence that he was unable to comply with them. As to Goldberg’s reputation, the appellate judge found that despite his reputation to not accept service of documents, the judge never had a problem and there was no ill will between them because of it.

Considering all this, the appellate judge dismissed the recusal application.

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