Reasonable Apprehension of Bias

From Criminal Law Notebook
This page was last substantively updated or reviewed May 2021. (Rev. # 89425)

General Principles

See also: Judicial Neutrality and Bias, Role of Trial Judge, and Reasonable Person Test

A judge must not only be unbiased but also appear unbiased.[1] A judgement of a court cannot be valid where there is a reasonable apprehension of bias.

Presumption of Integrity

There is a strong presumption of impartiality and that the judge will carry out his oath of impartiality.[2] This presumption arises from the "presumption of judicial integrity."[3]

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."[4]

Burden and Standard of Proof

The burden of establishing bias is upon the claimant.[5] The burden is a "heavy" to dislodge the presumption of impartiality.[6]

Test for Bias

The test for bias is on an objective standard.[7] 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.[8]

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.[9] 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."[10]

When the judge's conduct is at play, it must not be considered in isolation. It must be considered in context, including in light of the whole proceeding.[11]

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.[12]

"Cogent evidence" is required to overcome the presumption.[13]

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.[14]

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.[15]

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.[16]

A judge can be "openly critical of the Crown of defence counsel where such is appropriate" and still not create an apprehension of bias.[17]

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.[18]

Procedure

An application for recusal of a judge must be made before the judge against whom bias is alleged.[19]

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.[20]

  1. R v Sussex Justice, Ex Parte McCarthy [1923] All ER Rep 233 (UK) ("Not only must justice be done, it must also be seen to be done")
  2. R v Pepe, 2013 ONSC 643 (CanLII), per MacDonnell J, at para 11
    Malton v Attia, 2016 ABCA 130 (CanLII), 398 DLR (4th) 350, per curiam
  3. 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.")
  4. R v Arnout, 2015 ONCA 655 (CanLII), 328 CCC (3d) 15, per curiam, at para 19
  5. R v Slaney, 2013 NLCA 70 (CanLII), 344 Nfld & PEIR 144, per Barry JA, at para 7
    Miglin v Miglin, 2003 SCC 24 (CanLII), [2003] 1 SCR 303, 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
  6. R v Esseghaier, 2021 ONCA 162 (CanLII), per curiam, at para 19
    R v Dowholis, 2016 ONCA 801, 341 CCC (3d) 443, per Benotto JA, at para 18
    R v Ibrahim, 2019 ONCA 631 (CanLII), 379 CCC (3d) 414, per curiam, at para 84
  7. Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 (CanLII), [2015] 2 SCR 282, per Abella J, at para 22
  8. R v Valley, 1986 CanLII 110 (ON CA), 26 CCC (3d) 207, per Martin JA, at p. 232
  9. RDS, supra, at para 111
  10. 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
  11. R v Gager, 2020 ONCA 274 (CanLII), OJ No 1886, at para 144 ("...a judge’s individual comments or interventions must not be seen in isolation. Rather, the impugned conduct must be considered in the context of the circumstances and in the light of the whole proceeding.")
  12. R v Mallory, 2007 ONCA 46 (CanLII), 217 CCC (3d) 266, per curiam, at para 318
    Yukon Francophone School Board v Yukon (Attorney General), 2015 SCC 25 (CanLII), [2015] 2 SCR 282, per Abella J, at para 37
  13. RDS, supra, at paras 113, 116, 117
    Committee for Justice and Liberty, supra, at p. 395 ("The grounds for [an] apprehension [of bias] must...be substantial")
  14. R v Hayes and Lowe, 2009 NLTD 114 (CanLII), 888 APR 212, per Dymond J
  15. Broda v Broda, 2001 ABCA 151 (CanLII), 286 AR 120, per curiam, at para 16
  16. R v Wilson, 2013 ONCA 222 (CanLII), per curiam, at paras 5 to 8
  17. R v Colpitts, 2014 NSSC 431 (CanLII), per Coady J, at para 18
    R v LL, 2013 ABQB 531 (CanLII), 570 AR 287, per Thomas J, at paras 29 and 31
  18. R v Lapointe, 2010 NBCA 63 (CanLII), 936 APR 129, per Robertson JA
  19. R v Doung, 1998 CanLII 14950 (ONSC), 129 CCC (3d) 430), per Smith ACJ
  20. 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 to 60, 76 to 78

See Also