Judicial Neutrality and Bias
| This page was last substantively updated or reviewed January 2021. (Rev. # 95439) |
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General Principles
- Obligation of Neutrality
The judge must be neutral. This requires that the judge should "confine himself as much as possible to his own responsibilities and leave to counsel and members of the jury their respective functions."[1]
- Appearance of Impartiality
It is not sufficient that the courts simply be impartial, but rather they must appear to be impartial as well.[2]
The appearance of neutrality is "of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."[3]
- Judge's Degree of Participation
Judge's are not expected to be "silent observers" in a trial.[4]
I judge can "enter the arena" for "the purpose of insisting the counsel move the case forward."[5]
A judge can participate in legal debate, challenge counsel's position and state preliminary views without creating a perception of bias.[6]
Conduct that involves the "[u]njustified reprimands of counsel, insulting and improper remarks about litigants and witnesses, statements evidencing prejudgment and intemperate and impatient behaviour may destroy the appearance of impartiality."[7]
- Purpose of Neutrality
The justice system only works if it has "the respect and confidence of its society". That requires "trials that are fair" and that appear to be fair to the "informed and reasonable observer."[8]
- Disqualification of Judges
The mere fact that a judge previously ruled against a litigant does not automatically disqualify them from future cases.[9] Such a history does not support an apprehension of bias.[10] Judges are presumed capable of disabusing themselves of the accused's history in their future judgement.[11]
The assessment of bias is highly fact specific.[12]
- ↑ R v Torbiak and Campbell, 1974 CanLII 1623 (ON CA), , 18 CCC (2d) 229, per Kelly JA, at pp. 230-231
- ↑
Wewaykum Indian Band v Canada, 2003 SCC 45 (CanLII), [2003] 2 SCR 259, per curiam, at para 66 ("the manifestation of a broader preoccupation about the image of justice [because] there is an overriding public interest that there should be confidence in the integrity of the administration of justice")
- ↑ R v Sussex Justices, Ex parte McCarthy , [1924] 1 K.B. 256 (UK), at p. 259
- ↑
R v Potter; R v Colpitts, 2020 NSCA 9 (CanLII), per curiam, at para 743
- ↑
R v Clarke, 2014 NSSC 431 (CanLII), per Coady J, at para 34
- ↑ R v Baccari, 2011 ABCA 205 (CanLII), 527 WAC 301, per curiam
- ↑
Clarke, supra, at para 20 citing Canadian Judicial Council, "Ethical Principles for Judges", at p. 33
- ↑ R v RDS, 1997 CanLII 324 (SCC), [1997] 3 SCR 484, per Cory J
- ↑
Broda v Broda, 2001 ABCA 151 (CanLII), 286 AR 120, per curiam, at para 16
R v Collins, 2011 FCA 171 (CanLII), 202 ACWS (3d) 820 per Mainville JA , at para 11 ("[t]he simple fact that judges render a judgment which is unfavourable to a party cannot in itself result in a conclusion of bias. Were it otherwise, no judgment could ever be issued. A reasonable apprehension of bias must be shown to exist either in the judgment itself, in the comportment of the judge or by some other means.")
R v JNS, 2019 ABQB 557 (CanLII), per Mandziuk J
R v Heisinger, 2007 NWTTC 11 (CanLII) per Schmaltz J, at para 6 ("The case law is clear: an accused having appeared previously before a judge will not require that the judge cannot preside on subsequent matters involving that accused. This applies whether or not an accused appeared as an accused, a party, or a witness, and whether or not credibility findings were made.") - ↑ Alberta Health Services v Wang, 2018 ABCA 104 (CanLII), per Slatter JA, at para 9 ("... Making decisions is the essence of the judicial function, and a reasonable person, properly informed, would not conclude that a judge would have a bias towards any one party just because that party was unsuccessful on one particular application.")
- ↑ R v Bolt, 1995 ABCA 22 (CanLII), 26 WCB (2d) 18, per Russell JA, at para 2 ("… It is inevitable that there will be occasions when an experienced trial judge will have had some prior judicial contact with an accused. We are confident that trial judges are capable of disabusing their minds of that fact in considering the guilt or innocence of the accused in relation to the specific charge before them…")
- ↑
R v Potter; R v Colpitts, 2020 NSCA 9 (CanLII), at para 742
Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 (CanLII), [2015] 2 SCR 282, per Abella J