In his March 3, 2015 decision in R. v. Ebagua, Justice Huscroft of the Ontario Court of Appeal held that there is no right to seek a “stay of sentence” from the Court of Appeal pending a conviction appeal due to an allegation that the sentencing judge would be biased. His decision was short but instructive:

[1] The applicant was found guilty of trafficking marijuana following a trial before Justice L.M. Baldwin of the Ontario Court of Justice. …

[2] The applicant requests that the Court stay the sentencing on the basis that he has a reasonable apprehension that Baldwin J. is biased. He submits that a long pattern of biased behavior by the judge led to his conviction, which he says is manifestly unreasonable, and that he will not be given a fair sentence by Baldwin J. He has filed an appeal of his conviction and requests that he be sentenced only if his appeal is dismissed. Alternatively, he requests that he be sentenced by a different judge.

[3] The applicant provided the court with no authority to support either his stay request or the court’s jurisdiction. He submitted that he is entitled to seek relief from this court for a breach of s. 7 of the Charter pursuant to s 24 and that it was convenient to do so by motion at this stage, given that he has filed his conviction appeal. The Crown submitted that the court is a statutory court whose powers under s. 686 of the Code provide jurisdiction to grant remedial relief on the hearing of an appeal against conviction or sentence. He submits there is no precedent for the applicant’s request for a stay prior to sentencing.

[4] In my view there is no basis for this court to intervene prior to sentencing by the trial judge in this case. The proper course is for the applicant to raise his bias allegation with the trial judge prior to sentencing. He is then free to appeal both sentence and conviction to this court should he wish to do so.

[5] The motion is dismissed.