Judge recuses himself from Goodpipe case

With the Crown having announced its intention to launch dangerous offender proceedings against Elwin Michael Goodpipe, a Regina Court of Queen’s Bench judge recused himself from the case as the result of an issue raised by Goodpipe.

But Justice Jeff Kalmakoff stopped short of granting the mistrial Goodpipe wanted.

Two months ago, a jury convicted the 35-year-old of manslaughter, having determined he played a role in a March 2016 robbery that went wrong when a gun carried by Goodpipe’s accomplice went off. The robbery target, 56-year-old Andre Joseph Aubertin, was killed.

Following the verdict, the Crown told the court it was considering a dangerous offender application against Goodpipe, who has a previous manslaughter on his record for his participation in the 2004 death of Wayne Gerald Friday. On Tuesday, court heard the Crown has decided to launch that application.

But first, Kalmakoff needed to decide on a couple of other issues — namely whether the case would continue as it is and what, if any, role he would play going forward.

Earlier this month, Goodpipe, through his defence lawyer Mervyn Shaw, argued for a mistrial, referencing a 2003 robbery case involving Goodpipe, Shaw and Kalmakoff. At the time of the 2003 sentencing, Kalmakoff was still a Crown prosecutor and, while neither he nor Shaw had any recollection of the case, Shaw argued there is a potential for “unconscious” bias on the now-judge’s part.

Shaw argued declaring a mistrial and ordering a new trial was the only way justice “can be seen to be done” given the circumstances.

But, on Tuesday, Kalmakoff disagreed, noting mistrials are to be declared “only in the clearest of cases, where there has been a fatal wounding of the trial process which cannot otherwise be remedied.”

While Kalmakoff agreed a “reasonable apprehension of bias” on the part of a judge could be grounds for a mistrial, he found no such bias existed here. He noted he doesn’t remember the 2003 case, any of Goodpipe’s circumstances, or that he’d ever prosecuted the man at all.

“Mr. Goodpipe’s 2003 matter was one of thousands of cases that I handled during the 15 years I was employed as a Crown prosecutor,” Kalmakoff said.

The judge added the 2003 matter involved a guilty plea and a joint submission sentence. He concluded reasonable observers would not find there was a reasonable apprehension of bias on his part during the present case.

Despite that — and despite his finding the test for disqualification had not been met — Kalmakoff recused himself out of “caution and the need to respect the principle of impartiality.”

“I am satisfied that, given the nature of the offence of which Mr. Goodpipe has been convicted, and the type of application the Crown is contemplating with respect to sentencing, things could very well progress to the point that an informed person, viewing the matter realistically and practically ... would conclude that a reasonable apprehension of bias exists,” he said.

He pointed out the Crown will no doubt refer to the 2003 case during the hearing, which could become “problematic” should Kalmakoff remain as hearing judge.

A date for the hearing has yet to be set.