Reasonable Apprehension of Bias

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General Principles

See also: Judicial Neutrality and Bias and Reasonable Person Test

A judge must be unbiased and as well appear unbiased.[1] A judgement of a court cannot be valid where there is a reasonable apprehension of bias.

Burden and Standard of Proof
The burden of establishing bias is upon the claimant.[2]

There is a strong presumption of impartiality and that the judge will carry out his oath of impartiality.[3]

Presumption of Integrity
This strong presumption arises from the "presumption of judicial integrity".[4]

The presumption of integrity is rebutted where there is "cogent evidence showing that, in all the circumstances, an informed and reasonable observer would think that the reasons are an after-the-fact justification for the decision rather than an articulation of the reasoning that led to the decision".[5]

Test for Bias
The focus of consideration should not be on whether the accused was prejudiced, but whether he would reasonably consider that he did not have a fair trial or whether reasonable-minded people who watched the trial would have believed the trial was not fair.[6]

The test for reasonable apprehension of bias requires the reviewing judge to consider whether a reasonable person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that ... judges swear to uphold" would apprehend that there was bias.[7] It has also been phrased as requiring that "a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias."[8]

An apprehension of bias triggered by allegedly improper cross-examination requires that the court consider whether the "improperly questions" would lead a fully informed person to reasonably conclude the court's ability to decide the case to be impaired.[9]

"Cogent evidence" is required to overcome the presumption.[10]

Circumstances
Where a judge has made findings of fact on sentencing a co-accused for an offence may give rise to an apprehension of bias that would require the judge to withdraw.[11]

The fact that the applicant lost a motion or hearing before the judge, regardless of the similarity of the case, does not preclude the judge from judging the new issue.[12]

A judge referring to the accused as "Mr. Guilty" before a jury will not on its own be sufficient to create an apprehension of bias.[13]

A judge can be "openly critical of the Crown of defence counsel where such is appropriate" and still not create an apprehension of bias.[14]

A judge sighing at an accused with an extended record whom the judge had previously represented and calling him by his first name is not enough.[15]

Procedure
An application for recusal of a judge must be made before the judge against whom bias is alleged.[16]

Appeals

See also: Appeals

A reasonable apprehension of bias is grounds for appeal under either s. 686(1)(a)(i) or (iii) for unreasonable verdict or miscarriage of justice. There is a presumption to judicial integrity. Thus, there needs to be substantial grounds and cogent evidence to support an apprehension.[17]

  1. R v Sussex Justice, Ex Parte McCarthy [1923] All ER Rep 233 ("Not only must justice be done, it must also be seen to be done")
  2. R v Slaney, 2013 NLCA 70 (CanLII), per Barry JA, at para 7
    Miglin v Miglin, 2003 SCC 24 (CanLII), per Bastarache and Arbour JJ at para 26
    R v RDS, 1997 CanLII 324 (SCC), [1997] 3 SCR 484, per Cory J at para 114
  3. R v Pepe, 2013 ONSC 643 (CanLII), per MacDonnell J at para 11
    Malton v Attia, 2016 ABCA 130 (CanLII), per curiam
  4. Malton v Attia, ibid. at para 82 ("There is a presumption of judicial impartiality, which must be displaced by the appellants. The threshold is a high one, and properly so.")
  5. R v Arnout, 2015 ONCA 655 (CanLII), per curiam at para 19
  6. R v Valley, 1986 CanLII 110 (ON CA), (1986), 26 CCC (3d) 207 (Ont. C.A.), per Martin JA, at p. 232
  7. RDS, supra at para 111
  8. Miglin v Miglin, supra at para 26
    Committee for Justice and Liberty v National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 SCR 369, per De Grandpre J(dissent) at 394-395
  9. R v Mallory, 2007 ONCA 46 (CanLII), per curiam at para 318
    Yukon Francophone School Board v Yukon (Attorney General) 2015 SCC 25 (CanLII), per Abella J at para 37
  10. RDS, supra at para 113, 116, 117
    Committee for Justice and Liberty, supra at p. 395 ("The grounds for [an] apprehension [of bias] must...be substantial")
  11. R v Hayes and Lowe, 2009 NLTD 114 (CanLII), per Dymond J
  12. Broda v Broda, 2001 ABCA 151 (CanLII), per curiam at para 16
  13. R v Wilson, 2013 ONCA 222 (CanLII), per curiam at para 5-8
  14. R v Colpitts, 2014 NSSC 431 (CanLII), per Coady J at para 18
    R v LL, 2013 ABQB 531 (CanLII), per Thomas J at paras 29 and 31
  15. R v Lapointe, 2010 NBCA 63 (CanLII), per Robertson JA
  16. R v Doung, 1998 CanLII 14950 (ON SC), (1998), 129 CCC (3d) 430 (Ont. C.J. (Gen. Div.)), per Smith ACJ
  17. R v Lupyrypa, 2011 ABCA 324 (CanLII), per curiam at para 6
    R v S (RD), 1997 CanLII 324 (SCC), [1997] 3 SCR 484, per Cory J at para 142
    Wewaykum Indian Band v Canada, 2003 SCC 45 (CanLII), [2003] 2 SCR 259, per curiam at paras 57‑60, 76‑78