Reasonable Apprehension of Bias
A judge must be unbiased and as well appear unbiased. 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.
There is a strong presumption of impartiality and that the judge will carry out his oath of impartiality.
Presumption of Integrity
This strong presumption arises from the "presumption of judicial integrity".
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".
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.
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. 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."
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.
"Cogent evidence" is required to overcome the presumption.
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.
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.
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.
A judge can be "openly critical of the Crown of defence counsel where such is appropriate" and still not create an apprehension of bias.
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.
An application for recusal of a judge must be made before the judge against whom bias is alleged.
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.
- 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")
R v Slaney, 2013 NLCA 70 (CanLII), at para 7
Miglin v Miglin, 2003 SCC 24 (CanLII) at para 26
R v RDS, 1997 CanLII 324 (SCC),  3 SCR 484 at para 114
R v Pepe, 2013 ONSC 643 (CanLII) at para 11
Malton v Attia, 2016 ABCA 130 (CanLII)
- 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.")
R v Arnout, 2015 ONCA 655 (CanLII) at para 19
- R v Valley, 1986 CanLII 110 (ON CA), (1986), 26 CCC (3d) 207 (Ont. C.A.), at p. 232
- RDS, supra at para 111
Miglin v Miglin, supra at para 26
Committee for Justice and Liberty v National Energy Board, 1976 CanLII 2 (SCC),  1 SCR 369 at 394-395
R v Mallory, 2007 ONCA 46 (CanLII) at para 318
Yukon Francophone School Board v Yukon (Attorney General) 2015 SCC 25 (CanLII) at para 37
RDS, supra at para 113, 116, 117
Committee for Justice and Liberty v National Energy Board, 1976 CanLII 2 (SCC),  1 SCR 369, at p. 395 ("The grounds for [an] apprehension [of bias] must...be substantial")
- R v Hayes and Lowe, 2009 NLTD 114 (CanLII)
- Broda v Broda, 2001 ABCA 151 (CanLII) at para 16
R v Wilson, 2013 ONCA 222 (CanLII) at para 5-8
R v Colpitts, 2014 NSSC 431 (CanLII) at para 18
R v LL, 2013 ABQB 531 (CanLII) at paras 29 and 31
- R v Lapointe, 2010 NBCA 63 (CanLII)
R v Doung, 1998 CanLII 14950 (ON SC), (1998), 129 CCC (3d) 430 (Ont. C.J. (Gen. Div.)), per Smith A.C.J.
R v Lupyrypa, 2011 ABCA 324 (CanLII) at para 6
R v S (RD), 1997 CanLII 324 (SCC),  3 SCR 484 at para 142
Wewaykum Indian Band v Canada, 2003 SCC 45 (CanLII),  2 SCR 259 at paras 57‑60, 76‑78