Reasonable Apprehension of Bias: Difference between revisions
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'''Burden and Standard of Proof'''<br> | '''Burden and Standard of Proof'''<br> | ||
The burden of establishing bias is upon the claimant.<Ref> | The burden of establishing bias is upon the claimant.<Ref> | ||
R v Slaney, [http://canlii.ca/t/g2dc5 2013 NLCA 70] (CanLII), at para 7<br> | R v Slaney, [http://canlii.ca/t/g2dc5 2013 NLCA 70] (CanLII){{perNLCA|Barry JA}}, at para 7<br> | ||
Miglin v Miglin, [http://canlii.ca/t/1g5lh 2003 SCC 24] (CanLII) at para 26<br> | Miglin v Miglin, [http://canlii.ca/t/1g5lh 2003 SCC 24] (CanLII){{perSCC|Bastarache and Arbour JJ}} at para 26<br> | ||
R v RDS, [http://canlii.ca/t/1fr05 1997 CanLII 324] (SCC), [1997] 3 SCR 484 at para 114<br> | R v RDS, [http://canlii.ca/t/1fr05 1997 CanLII 324] (SCC), [1997] 3 SCR 484{{perSCC|Cory J}} at para 114<br> | ||
</ref> | </ref> | ||
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> | ||
R v Pepe, [http://canlii.ca/t/fvww2 2013 ONSC 643] (CanLII) at para 11<br> | R v Pepe, [http://canlii.ca/t/fvww2 2013 ONSC 643] (CanLII){{perONSC|MacDonnell J}} at para 11<br> | ||
Malton v Attia, [http://canlii.ca/t/gpqkt 2016 ABCA 130] (CanLII)<br> | Malton v Attia, [http://canlii.ca/t/gpqkt 2016 ABCA 130] (CanLII){{TheCourt}}<br> | ||
</ref> | </ref> | ||
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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> | 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> | ||
R v Arnout, [http://canlii.ca/t/glcz6 2015 ONCA 655] (CanLII) at para 19<br> | R v Arnout, [http://canlii.ca/t/glcz6 2015 ONCA 655] (CanLII){{TheCourt}} at para 19<br> | ||
</ref> | </ref> | ||
'''Test for Bias'''<br> | '''Test for Bias'''<br> | ||
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> | ||
R v Valley, [http://canlii.ca/t/1npmw 1986 CanLII 110] (ON CA), (1986), 26 CCC (3d) 207 (Ont. C.A.), at p. 232 | R v Valley, [http://canlii.ca/t/1npmw 1986 CanLII 110] (ON CA), (1986), 26 CCC (3d) 207 (Ont. C.A.){{perONCA|Martin JA}}, at p. 232 | ||
</ref> | </ref> | ||
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</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> | </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> | ||
Miglin v Miglin{{supra}} at para 26<br> | Miglin v Miglin{{supra}} at para 26<br> | ||
Committee for Justice and Liberty v National Energy Board, [http://canlii.ca/t/1mk9k 1976 CanLII 2] (SCC), [1978] 1 SCR 369 at 394-395 <br> | Committee for Justice and Liberty v National Energy Board, [http://canlii.ca/t/1mk9k 1976 CanLII 2] (SCC), [1978] 1 SCR 369{{perSCC|De Grandpre J}}(dissent) at 394-395 <br> | ||
</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> | ||
R v Mallory, [http://canlii.ca/t/1qbmx 2007 ONCA 46] (CanLII) at para 318<Br> | R v Mallory, [http://canlii.ca/t/1qbmx 2007 ONCA 46] (CanLII){{TheCourt}} at para 318<Br> | ||
Yukon Francophone School Board v Yukon (Attorney General) [http://canlii.ca/t/ghl85 2015 SCC 25] (CanLII) at para 37<br> | Yukon Francophone School Board v Yukon (Attorney General) [http://canlii.ca/t/ghl85 2015 SCC 25] (CanLII){{perSCC|Abella J}} at para 37<br> | ||
</ref> | </ref> | ||
"Cogent evidence" is required to overcome the presumption.<ref> | "Cogent evidence" is required to overcome the presumption.<ref> | ||
RDS{{supra}} at para 113, 116, 117<br> | RDS{{supra}} at para 113, 116, 117<br> | ||
Committee for Justice and Liberty | Committee for Justice and Liberty{{supra}} at p. 395 ("The grounds for [an] apprehension [of bias] must...be substantial") | ||
</ref> | </ref> | ||
'''Circumstances'''<br> | '''Circumstances'''<br> | ||
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> | ||
R v Hayes and Lowe, [http://canlii.ca/t/24qg4 2009 NLTD 114] (CanLII) | R v Hayes and Lowe, [http://canlii.ca/t/24qg4 2009 NLTD 114] (CanLII){{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> | ||
Broda v Broda, [http://canlii.ca/t/5rgc 2001 ABCA 151] (CanLII) at para 16 | Broda v Broda, [http://canlii.ca/t/5rgc 2001 ABCA 151] (CanLII){{TheCourt}} at para 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> | ||
R v Wilson, [http://canlii.ca/t/fx0br 2013 ONCA 222] (CanLII) at para 5-8<br> | R v Wilson, [http://canlii.ca/t/fx0br 2013 ONCA 222] (CanLII){{TheCourt}} at para 5-8<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> | ||
R v Colpitts, [http://canlii.ca/t/gfl1w 2014 NSSC 431] (CanLII) at para 18<br> | R v Colpitts, [http://canlii.ca/t/gfl1w 2014 NSSC 431] (CanLII){{perNSSC|Coady J}} at para 18<br> | ||
R v LL, [http://canlii.ca/t/g0lvx 2013 ABQB 531] (CanLII) at paras 29 and 31<Br> | R v LL, [http://canlii.ca/t/g0lvx 2013 ABQB 531] (CanLII){{perABQB|Thomas J}} at paras 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> | ||
R v Lapointe, [http://canlii.ca/t/2cltx 2010 NBCA 63] (CanLII)</ref> | R v Lapointe, [http://canlii.ca/t/2cltx 2010 NBCA 63] (CanLII){{perNBCA|Robertson JA}}</ref> | ||
'''Procedure'''<br> | '''Procedure'''<br> | ||
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> | ||
R v Doung, [http://canlii.ca/t/1wcvd 1998 CanLII 14950] (ON SC), (1998), 129 CCC (3d) 430 (Ont. C.J. (Gen. Div.)) | R v Doung, [http://canlii.ca/t/1wcvd 1998 CanLII 14950] (ON SC), (1998), 129 CCC (3d) 430 (Ont. C.J. (Gen. Div.)){{perONSC|Smith ACJ}} <br> | ||
</ref> | </ref> | ||
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{{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> | ||
R v Lupyrypa, [http://canlii.ca/t/fnzh6 2011 ABCA 324] (CanLII) at para 6<br> | R v Lupyrypa, [http://canlii.ca/t/fnzh6 2011 ABCA 324] (CanLII){{TheCourt}} at para 6<br> | ||
R v S (RD), [http://canlii.ca/t/1fr05 1997 CanLII 324] (SCC), [1997] 3 SCR 484 at para 142<br> | R v S (RD), [http://canlii.ca/t/1fr05 1997 CanLII 324] (SCC), [1997] 3 SCR 484{{perSCC|Cory J}} at para 142<br> | ||
Wewaykum Indian Band v Canada, [http://canlii.ca/t/51pj 2003 SCC 45] (CanLII), [2003] 2 SCR 259 at paras 57‑60, 76‑78<br> | Wewaykum Indian Band v Canada, [http://canlii.ca/t/51pj 2003 SCC 45] (CanLII), [2003] 2 SCR 259{{TheCourt}} at paras 57‑60, 76‑78<br> | ||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
Revision as of 22:28, 4 November 2018
- < Procedure and Practice
- < Pre-Trial and Trial Matters
General Principles
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
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]
- ↑ 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), 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
- ↑
R v Pepe, 2013 ONSC 643 (CanLII), per MacDonnell J at para 11
Malton v Attia, 2016 ABCA 130 (CanLII), 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), per curiam at para 19
- ↑ R v Valley, 1986 CanLII 110 (ON CA), (1986), 26 CCC (3d) 207 (Ont. C.A.), 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 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
- ↑
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") - ↑ R v Hayes and Lowe, 2009 NLTD 114 (CanLII), per Dymond J
- ↑ Broda v Broda, 2001 ABCA 151 (CanLII), per curiam at para 16
- ↑
R v Wilson, 2013 ONCA 222 (CanLII), per curiam at para 5-8
- ↑
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
- ↑ R v Lapointe, 2010 NBCA 63 (CanLII), per Robertson JA
- ↑
R v Doung, 1998 CanLII 14950 (ON SC), (1998), 129 CCC (3d) 430 (Ont. C.J. (Gen. Div.)), per Smith ACJ
- ↑
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