Reasonable Apprehension of Bias: Difference between revisions
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[[Fr:Créhension_raisonnable_de_partialité]] | |||
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{{Seealso|Judicial Neutrality and Bias|Role of Trial Judge|Reasonable Person Test}} | {{Seealso|Judicial Neutrality and Bias|Role of Trial Judge|Reasonable Person Test}} | ||
A judge must not only be unbiased but also appear unbiased.<ref> | A judge must not only be unbiased but also appear unbiased.<ref> | ||
{{UKCase|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") | |||
</ref> | </ref> | ||
A judgement of a court cannot be valid where there is a reasonable apprehension of bias. | A judgement of a court cannot be valid where there is a reasonable apprehension of bias. | ||
; Presumption of Integrity | ; Presumption of Integrity | ||
There is a strong presumption of impartiality and that the judge will carry out his oath of impartiality.<ref> | There is a strong presumption of impartiality and that the judge will carry out his oath of impartiality.<ref> | ||
{{ | {{CanLIIRx|Pepe|fvww2|2013 ONSC 643 (CanLII)}}{{perONSC|MacDonnell J}}{{atL|fvww2|11}}<br> | ||
{{ | {{CanLIIRPC|Malton v Attia|gpqkt|2016 ABCA 130 (CanLII)|398 DLR (4th) 350}}{{TheCourtABCA}}<br> | ||
</ref> | </ref> | ||
This presumption arises from the "presumption of judicial integrity" | This presumption arises from the "presumption of judicial integrity."<ref> | ||
{{ibid1|Malton v Attia}}{{atL|gpqkt|82}} ("There is a presumption of judicial impartiality, which must be displaced by the appellants. The threshold is a high one, and properly so.") | {{ibid1|Malton v Attia}}{{atL|gpqkt|82}} ("There is a presumption of judicial impartiality, which must be displaced by the appellants. The threshold is a high one, and properly so.") | ||
</ref> | </ref> | ||
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" | 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."<ref> | ||
{{ | {{CanLIIRP|Arnout|glcz6|2015 ONCA 655 (CanLII)|328 CCC (3d) 15}}{{TheCourtONCA}}{{atL|glcz6|19}}<br> | ||
</ref> | |||
; Burden and Standard of Proof | |||
The burden of establishing bias is upon the claimant.<ref> | |||
{{CanLIIRP|Slaney|g2dc5|2013 NLCA 70 (CanLII)|344 Nfld & PEIR 144}}{{perNLCA|Barry JA}}{{atL|g2dc5|7}}<br> | |||
{{CanLIIRPC|Miglin v Miglin|1g5lh|2003 SCC 24 (CanLII)|[2003] 1 SCR 303}}{{perSCC|Bastarache and Arbour JJ}}{{atL|1g5lh|26}}<br> | |||
{{CanLIIRP|RDS|1fr05|1997 CanLII 324 (SCC)|[1997] 3 SCR 484}}{{perSCC|Cory J}}{{atL|1fr05|114}}<br> | |||
</ref> | |||
The burden is a "heavy" to dislodge the presumption of impartiality.<Ref> | |||
{{CanLIIRx|Esseghaier|jdpfz|2021 ONCA 162 (CanLII)}}{{TheCourtONCA}}{{atL|jdpfz|19}}<Br> | |||
{{CanLIIRP|Dowholis|gvd46|2016 ONCA 801|341 CCC (3d) 443}}{{perONCA|Benotto JA}}{{atL|gvd46|18}}<br> | |||
{{CanLIIRP|Ibrahim|j1n76|2019 ONCA 631 (CanLII)|379 CCC (3d) 414}}{{TheCourtONCA}}{{atL|j1n76|84}}<Br> | |||
</ref> | </ref> | ||
; Test for Bias | ; Test for Bias | ||
The test for bias is on an objective standard.<ref> | |||
{{CanLIIRPC|Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General)|ghl85|2015 SCC 25 (CanLII)|[2015] 2 SCR 282}}{{perSCC-H|Abella J}}{{atL|ghl85|22}} | |||
</ref> | |||
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.<ref> | 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.<ref> | ||
{{CanLIIRP|Valley|1npmw|1986 CanLII 110 (ON CA)| | {{CanLIIRP|Valley|1npmw|1986 CanLII 110 (ON CA)|26 CCC (3d) 207}}{{perONCA-H|Martin JA}}{{atp|232}} | ||
</ref> | </ref> | ||
| Line 38: | Line 48: | ||
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."<ref> | 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."<ref> | ||
{{supra1|Miglin v Miglin}}{{atL|1g5lh|26}}<br> | {{supra1|Miglin v Miglin}}{{atL|1g5lh|26}}<br> | ||
{{CanLIIRPC|Committee for Justice and Liberty v National Energy Board|1mk9k|1976 CanLII 2 (SCC)|[1978] 1 SCR 369}}{{perSCC|De Grandpre J}}(dissent) at 394-395 <br> | |||
</ref> | |||
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.<ref> | |||
{{CanLIIRP|Gager|j6wbb|2020 ONCA 274 (CanLII)|OJ No 1886}}{{AtL|j6wbb|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.") | |||
</ref> | </ref> | ||
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.<ref> | 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.<ref> | ||
{{ | {{CanLIIRP|Mallory|1qbmx|2007 ONCA 46 (CanLII)|217 CCC (3d) 266}}{{TheCourtONCA}}{{atL|1qbmx|318}}<Br> | ||
{{CanLIIRPC|Yukon Francophone School Board v Yukon (Attorney General)|ghl85|2015 SCC 25 (CanLII)|[2015] 2 SCR 282}}{{perSCC-H|Abella J}}{{atL|ghl85|37}}<br> | |||
</ref> | </ref> | ||
| Line 53: | Line 67: | ||
; Circumstances | ; 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.<ref> | 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.<ref> | ||
{{ | {{CanLIIRP|Hayes and Lowe|24qg4|2009 NLTD 114 (CanLII)|888 APR 212}}{{perNLSC|Dymond J}} | ||
</ref> | </ref> | ||
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.<ref> | 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.<ref> | ||
{{ | {{CanLIIRPC|Broda v Broda|5rgc|2001 ABCA 151 (CanLII)|286 AR 120}}{{TheCourtABCA}}{{atL|5rgc|16}} | ||
</ref> | </ref> | ||
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.<ref> | 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.<ref> | ||
{{ | {{CanLIIRx|Wilson|fx0br|2013 ONCA 222 (CanLII)}}{{TheCourtONCA}}{{atsL|fx0br|5| to 8}}<br> | ||
</ref> | </ref> | ||
A judge can be "openly critical of the Crown of defence counsel where such is appropriate" and still not create an apprehension of bias.<ref> | A judge can be "openly critical of the Crown of defence counsel where such is appropriate" and still not create an apprehension of bias.<ref> | ||
{{ | {{CanLIIRx|Colpitts|gfl1w|2014 NSSC 431 (CanLII)}}{{perNSSC|Coady J}}{{atL|gfl1w|18}}<br> | ||
{{ | {{CanLIIRP|LL|g0lvx|2013 ABQB 531 (CanLII)|570 AR 287}}{{perABQB|Thomas J}}{{atsL|g0lvx|29| and 31}}<Br> | ||
</ref> | </ref> | ||
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.<ref> | 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.<ref> | ||
{{ | {{CanLIIRP|Lapointe|2cltx|2010 NBCA 63 (CanLII)|936 APR 129}}{{perNBCA|Robertson JA}}</ref> | ||
; Procedure | ; Procedure | ||
An application for recusal of a judge must be made before the judge against whom bias is alleged.<ref> | An application for recusal of a judge must be made before the judge against whom bias is alleged.<ref> | ||
{{CanLIIRP|Doung|1wcvd|1998 CanLII 14950 (ONSC)|129 CCC (3d) 430)}}{{perONSC|Smith ACJ}} <br> | |||
</ref> | |||
; Effect of Finding | |||
The existence of a bias means that the trial judge has lost jurisdiction over the matter.<ref> | |||
KJMJ at para 58<Br> | |||
</ref> | |||
Once there has been a finding of bias, the only remedies are a new trial or stay of proceedings.<ref> | |||
Nevin | |||
</ref> | </ref> | ||
| Line 80: | Line 102: | ||
{{seealso|Appeals}} | {{seealso|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.<ref> | 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.<ref> | ||
{{ | {{CanLIIRx|Lupyrypa|fnzh6|2011 ABCA 324 (CanLII)}}{{TheCourtABCA}}{{atL|fnzh6|6}}<br> | ||
{{CanLIIRP|S(RD)|1fr05|1997 CanLII 324 (SCC)|[1997] 3 SCR 484}}{{perSCC|Cory J}}{{atL|1fr05|142}}<br> | |||
{{CanLIIRPC|Wewaykum Indian Band v Canada|51pj|2003 SCC 45 (CanLII)|[2003] 2 SCR 259}}{{TheCourt}}{{atsL|51pj|57| to 60}}, {{atsL-np|51pj|76| to 78}}<br> | |||
</ref> | |||
None of the verdicts on any count before a biased trial judge can be maintained once a finding has been made.<REF> | |||
Nevin at para 115<br> | |||
R v Abukar, 2007 ABCA 286 at paras 2 and 100 | |||
</ref> | </ref> | ||
Latest revision as of 07:05, 23 July 2024
| This page was last substantively updated or reviewed May 2021. (Rev. # 95710) |
- < Procedure and Practice
- < Pre-Trial and Trial Matters
General Principles
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]
- Effect of Finding
The existence of a bias means that the trial judge has lost jurisdiction over the matter.[20] Once there has been a finding of bias, the only remedies are a new trial or stay of proceedings.[21]
- 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.[22]
None of the verdicts on any count before a biased trial judge can be maintained once a finding has been made.[23]
- ↑ 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")
- ↑
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
- ↑ 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), 328 CCC (3d) 15, per curiam, at para 19
- ↑
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
- ↑
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
- ↑ 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
- ↑ R v Valley, 1986 CanLII 110 (ON CA), 26 CCC (3d) 207, per Martin JA, 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), [1978] 1 SCR 369, per De Grandpre J(dissent) at 394-395
- ↑ 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.")
- ↑
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
- ↑
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") - ↑ R v Hayes and Lowe, 2009 NLTD 114 (CanLII), 888 APR 212, per Dymond J
- ↑ Broda v Broda, 2001 ABCA 151 (CanLII), 286 AR 120, per curiam, at para 16
- ↑
R v Wilson, 2013 ONCA 222 (CanLII), per curiam, at paras 5 to 8
- ↑
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
- ↑ R v Lapointe, 2010 NBCA 63 (CanLII), 936 APR 129, per Robertson JA
- ↑
R v Doung, 1998 CanLII 14950 (ONSC), 129 CCC (3d) 430), per Smith ACJ
- ↑
KJMJ at para 58
- ↑ Nevin
- ↑
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
- ↑
Nevin at para 115
R v Abukar, 2007 ABCA 286 at paras 2 and 100