THE 2008 MEETING OF THE PROVINCIAL
COURT JUDGES OF NEWFOUNDLAND
AND LABRADOR, OCTOBER, 2008
IMPARTIALITY, REASONABLE
APPREHENSION OF BIAS AND
DISQUALIFYING EVENTS, ACTS
AND COMMENTS IN TRIAL
PROCEEDINGS:
WHAT DOES IT MEAN, WHEN DOES
IT ARISE AND WHAT TO DO ABOUT
IT WHEN IT DOES
JUDGE WAYNE GORMAN
(UPDATED: JULY. 2011)
INDEX
PAGE:
Introduction…………………………………………………….
1
What Constitutes a Disqualifying Conflict of Interest……….
4
What Does it Mean to be Impartial……………………………
18
What is the Appropriate Test………………………………….
21
Who Should Consider a Recusal Application and What
Procedure Should be Followed…………………………………
26
When Should the Issue Be Raised……………………………..
32
Some Examples of Common Situations in Which Recusal
Applications Have Been Made………………………………….
33
Excessive Intervention……………………………………
36
Prior Involvement in a Case……………………………..
45
Heated Exchanges with the Accused…………………….
57
Comments to Counsel…………………………………….
59
Prior Unfavorable Dealings with Counsel………………
62
Personal Knowledge or Contact with a Party…………..
63
Prior Representation or Prosecution of a Party………..
67
Family Connection to Counsel…………………………..
68
Contact with Counsel’s Superiors……………………….
69
Changes of Plea……………………………………………
70
ii.
Unfavorable Comments Concerning a
Racial or Ethnic Group…………………………………..
71
Referring to Our Own Personal Experiences
And Concerns…………………………………………….
72
Appeals...............................................................................
74
What are our Options when a Recusal Motion is Made………
764
Conclusion…………………………………………………………
77
INTRODUCTION
$ The Canadian Judicial Council in its Ethical Principles For Judges, at
Chapter 6, indicates that impartiality is the “fundamental qualification of a
judge and the core attribute of the judiciary.”1 In R. v. Stuckey, [2009]
O.J. No. 600, the Ontario Curt of Appeal said that “a trial judge must
exercise restraint and maintain impartiality so as to act within the scope of
his or her neutral role.” In R. v. Dobson, [2009] O.J. No. 4116 (C.A.), the
Court of Appeal noted that “while trial judges bear responsibility for
ensuring that the trial proceeds in an orderly and efficient fashion and are
entitled to be firm in carrying out this function, it is essential that, in doing
so, they maintain judicial decorum.” Public confidence in our legal
system “is rooted in the fundamental belief that those who adjudicate in
law must always do so without bias or prejudice and must be perceived to
do so” (see Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, at
paragraph 57). The Supreme Court of the United Sates has noted that the
“citizen's respect for judgments depends in turn upon the issuing court's
1
See www.cjc-ccm.gc.ca. It should be noted when considering these principles, that the
Canadian Judicial Council indicates that they are intended to be “advisory in nature” and
are designed “to assist judges with the difficult ethical and professional issues which
confront them and to assist members of the public to better understand the judicial role.
They are not and shall not be used as a code or a list of prohibited behaviours. They do
not set out standards defining judicial misconduct.” For a consideration of their advisory
nature, see Rando Drugs Ltd. v. Scott (2007), 284 D.L.R. (4th) 756 (Ont. C.A.), at
paragraph 24.
2
absolute probity” (see Republican Party of Minn. v. White, 536 U. S. 765,
793 (2002)). The Supreme Court of Canada has indicated that a “system
of justice, if it is to have the respect and confidence of its society, must
ensure that trials are fair and that they appear to be fair to the informed and
reasonable observer.” The Court noted that a “reasonable person…expects
judges to undertake an open-minded, carefully considered, and
dispassionately deliberate investigation of the complicated reality of each
case before them.” However, in R. v. J.L.M.A., 2009 ABCA 344, at
paragraph 24, it was pointed out that the parties to a matter are “are
entitled to a fair judge, but not an ignorant, unqualified, gullible, or
untrained one.” When it is suggested that we have fallen short of this
requirement, we may have to recuse ourselves from a proceeding which is
before us. However, the “threshold for a finding of real or perceived bias
is high” and there is a “presumption that judges will carry out their oath of
office”, though the presumption can be “displaced with ‘cogent evidence’
that demonstrates that something the judge has done gives rise to a
reasonable apprehension of bias” (see R. v. S.(R.D.), [1997] 3 S.C.R. 484,
at paragraphs 40, 91, 113 and 117) or what has been described as a “real
likelihood or probability of bias” having been demonstrated (see
3
Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, at
paragraph 2).2
$ The concept of judicial bias “refers to a judge's predisposition to decide
an issue material to the proceedings such that his or her mind is closed or
at least strongly resistant to persuasion to the contrary view based on the
evidence adduced and submissions made in the specific case.” An
“allegation of a reasonable apprehension of bias must overcome the strong
presumption of judicial impartiality. That presumption reflects the long
and strong history of judicial independence and integrity in this country”
(see Peart v. Peel Regional Police Services Board (2006), 43 C.R. (6th)
175 (Ont. C.A.), at paragraphs 36 and 39). In Tumey v. Ohio, 273 U. S.
510 (1927), at page 532, it was held that disqualification was required
under the principle that "[e]very procedure which would offer a possible
temptation to the average man as a judge to forget the burden of proof
required to convict the defendant, or which might lead him not to hold
2
In Caperton v. A. T. Massey Coal Co., No. 08-22 (2009), in a dissenting opinion,
Roberts C.J., stated that “there is a ‘presumption of honesty and integrity in those serving
as adjudicators.’ Withrow v. Larkin, 421 U. S. 35, 47 (1975). All judges take an oath to
uphold the Constitution and apply the law impartially, and we trust that they will live up
to this promise. See Republican Party of Minn. v. White, 536 U. S. 765, 796 (2002)
(Kennedy, J., concurring) (‘We should not, even by inadvertence, 'impute to judges a lack
of firmness, wisdom, or honor' (quoting Bridges v. California, 314 U. S. 252, 273
(1941))).”
4
the balance nice, clear and true between the State and the accused,
denies the latter due process of law."
$ The purpose of this paper is to consider when we as trial judges are in,
what has been described by Mr. Justice Rosenberg, as a “disqualifying
conflict of interest” (see Rando Drugs Ltd. v. Scott (2007), 284 D.L.R. (4th)
756 (Ont. C.A.), at paragraph 30), how the issue should be approached by us
and what our options are when it is raised. Answering these questions will
require a consideration of specific instances in which a disqualifying conflict
might arise, how to avoid such instances and the general principles involved
when we are asked to disqualify or recuse ourselves. The initial question to
ponder is: what constitutes a disqualifying conflict of interest?
WHAT CONSTITUTES A DISQUALIFYING CONFLICT OF
INTEREST?
$ The Canadian Judicial Council asks this question in its Ethical Principles
For Judges, and at Chapter 6, provides the following answer:
As Perell puts it, “A common or unifying theme for the various
classes of conflicts of interest is the theme of divided loyalties and
duties.” The potential for conflict of interest arises when the personal
interest of the judge (or of those close to him or her) conflicts with the
judge’s duty to adjudicate impartially. Judicial impartiality is
concerned both with impartiality in fact and impartiality in the
perception of a reasonable, fair minded and informed person. In
judicial matters, the test for conflict of interest must include both
actual conflicts between the judge’s self interest and the duty of
impartial adjudication and circumstances in which a reasonable fair
minded and informed person would reasonably apprehend a conflict.
5
A number of texts and commentaries offer guidance to judges on this
subject. The Hon. J.O.Wilson in A Book for Judges, for example, says
a judge’s disqualification would be justified by a pecuniary interest in
the outcome; a close family, personal or professional relationship with
a litigant, counsel or witness; or the judge having expressed views
evidencing bias regarding a litigant.
$ We must, however, be careful not to confuse what may constitute a
conflict of interest for legal counsel with what constitutes one for judges.
This point was made by the Ontario Court of Appeal in Rando Drugs Ltd. v.
Scott (2007), 284 D.L.R. (4th) 756, in which the Court of Appeal stated (at
paragraph 29):
…the different contexts and in particular, the strong presumption of
judicial impartiality that applies in the context of disqualification of a
judge. There is no such presumption in cases of allegations of conflict
of interest against a lawyer because of a firm's previous involvement
in the case. To the contrary, as explained by Sopinka J. in MacDonald
Estate v. Martin (1990), 77 D.L.R. (4th) 249 (S.C.C.), for sound
policy reasons there is a presumption of a disqualifying interest that
can rarely be overcome. In particular, a conclusory statement from the
lawyer that he or she had no confidential information about the case
will never be sufficient. The case is the opposite where the allegation
of bias is made against a trial judge. His or her statement that he or
she knew nothing about the case and had no involvement in it will
ordinarily be accepted at face value unless there is good reason to
doubt it.3
3
For a discussion of this distinction, see Paul Perrell, The Disqualification of Judges and
Judgments on the Grounds of Bias or the Reasonable Apprehension of Bias (2004), 29
The Advocates’ Quarterly 102, at pages 106 to 107.
6
$ The Canadian Judicial Council’s Ethical Principles For Judges, indicates
the following (see Chapter 6) as regards “conflicts of interest” for judges:
1. Judges should disqualify themselves in any case in which they
believe they will be unable to judge impartially.
2. Judges should disqualify themselves in any case in which they
believe that a reasonable, fair minded and informed person would
have a reasoned suspicion of conflict between a judge’s personal
interest (or that of a judge’s immediate family or close friends or
associates) and a judge’s duty.
3. Disqualification is not appropriate if: (a) the matter giving rise
to the perception of a possibility of conflict is trifling or would
not support a plausible argument in favour of disqualification,
or (b) no other tribunal can be constituted to deal with the case
or, because of urgent circumstances, failure to act could lead to
a miscarriage of justice.4
$ A potential disqualifying conflict of interest can arise in numerous
ways. It can occur as a result of a single comment (see R. v. Camardi,
[2009] O.J. No. 163 (C.A.), in which it was held that “a single comment
by the trial judge was sufficient to raise a reasonable apprehension of
bias.” In that case, the trial judge “early in examination in chief, conveyed
the...clear view that the key witness was committing perjury. The trial
judge did not subsequently explain or remedy his comment, despite being
given the opportunity to do so.”) In Marchand v. Public General
4
The American Bar Association's Annotated Model Code of Judicial Conduct, Canon 2
(2004), test for appearance of impropriety is "whether the conduct would create in
reasonable minds a perception that the judge's ability to carry out judicial responsibilities
with integrity, impartiality and competence is impaired."
7
Hospital Society of Chatman (2000), 138 O.A.C. 201, the Ontario Court
of Appeal set out the following as examples:
Prejudgment of the merits, prejudgment of credibility, excessive and
one-sided interventions with counsel or in the examination of
witnesses and the reasons themselves may show bias. The court
must decide whether the relevant considerations taken together give
rise to a reasonable apprehension of bias.
$ In Save Guana Cay Reef Association Ltd v The Queen & Ors
(Bahamas) [2009] UKPC 44, the reasonable apprehension of bias which
was alleged arose out of the following circumstances:
...it is said that he was an acting judge appointed on a temporary basis
(that is on a six-month renewable contract) and that the Government
of the Bahamas was at the time in default in failing to review judges'
salaries. Miss Jordan added, in reinforcement of those main grounds,
that the acting judge had been a senator in the governing party, and
that the judicial review proceedings were of particular political
sensitivity.
$ The Privy Council did not see this as raising a reasonable apprehension of
bias (at paragraphs 51 and 52):
Both before and since Porter v Magill there have been cases
considering whether the fact that a judge has no long-term security of
tenure would lead a fair-minded and informed observer to conclude
that there was a real possibility of bias, because of the temporary
judge's inclination to be over-deferential to those who had power to
terminate or renew his appointment. The most important authorities
are Starrs v Ruxton 2000 JC 208, Millar v Dickson [2002] 1 WLR
1615 and Kearney v HM Advocate 2006 SC(PC) 1. Kearney shows
that there is no single test that is decisive. All the circumstances have
to be taken into account. The decisive point invalidating the use of
8
temporary sheriffs was the fact that under section 11(4) of the Sheriff
Courts (Scotland) Act 1971 the appointment of a temporary sheriff
could be "recalled" (that is, terminated) by the executive at any time
and for any reason; this was reinforced by practical arrangements (for
instance, an age limit) which had no statutory authority. Kearney
upheld the validity of the appointment of temporary judges of the
High Court of Justiciary, where those difficulties did not arise (see the
opinion of Lord Hope at paras 51-53).
Section 95 of the Constitution of the Bahamas makes express
provision for the appointment of an acting Justice of the Supreme
Court. His or her appointment may be either for a fixed period or until
revoked by the Governor-General acting on the advice of the Judicial
and Legal Service Commission (established under section 116 of the
Constitution). In this case the acting judge was appointed for a fixed
period of six months. During that period he had the same security as a
permanent judge in that he could be removed only for inability to
discharge his functions, or for misbehaviour (section 96(4) and (5) of
the Constitution). He was, their Lordships were told, approaching
retirement age. Neither the fact that he had been a senator, nor the fact
that judges' salaries were at the time perceived as less than generous,
is relevant. Nor is the fact that the case may have been perceived as
controversial. Their Lordships, like the courts below, reject the
assertion of apparent bias.
$ In Conflict of Interest: Principles for the Legal Profession (Carswell,
2008), the author (M. Deborah MacNair), makes this point by noting that
disqualifying conflicts of interest may arise in many different ways (at page
11-2):
Conflict of interest may arise in many different ways. Personal
relationships must be kept separate from official duties so that there is
no hint of influence in the outcome of a decision. Therefore a judge
9
should not participate in a case where they or a family member have a
material or substantial stake in the outcome.5
$ Thus, an exhaustive list is beyond any means of preparation. However, in
many instances the answer will be obvious.6 For instance, clearly we cannot
sit as a trial judge in any case involving a relative or in which we have a
personal or significant financial interest.7 Thus, it has been held in the
United Kingdom that “once it is shown that the judge is himself a party to
the cause, or has a relevant interest in its subject matter, he is disqualified
without any investigation into whether there was a likelihood or suspicion of
bias. The mere fact of his interest is sufficient to disqualify him” (see R. v.
Bow Street Metropolitan Stipendiary Magistrate, ex p. Pinochet Ugarte,
5
Also see Beverly Smith, Professional Conduct for Lawyers and Judges (3d., ed.,
Maritime Law Book, 2007).
6
In R. v. Coreas, [1997] 1 S.C.R. 1147, the accused was charged with sexual assault.
After the close of the Crown’s case the trial judge, in his Chambers, advised counsel he
would not be convicting the accused. The Crown requested a mistrial which the trial
judge refused to grant. The accused was acquitted. The Ontario Court of Appeal set aside
the acquittal and ordered a new trial. The accused appealed to the Supreme Court of
Canada. In a brief oral judgment the Court stated:
... We are in agreement with the reasons of the Court of Appeal in ordering a new
trial.
7
See for instance, Dimes v. Grand Junction Canal Company (1852), 3 H.L.C. 759, in
which the trial judge’s decision favouring a company was set aside by the House of Lords
on the ground that the trial judge (the Lord Chancellor) was a substantial shareholder in
the company. We must, however, be careful not to take this principle to ridiculous ends.
For instance, ownership of a credit card by a judge which was issued by a financial
institution which is a party to a matter before that judge would not be cause for
disqualification.
10
[2000] 1 A.C. 119 (H.L.)). These comments have been referred to as
creating a rule of “automatic disqualification.”8 This principle has given
financial gain its strength as a disqualifying factor even when such gain is of
such a miniscule potential that a reasonable person would not apprehend any
lack of impartiality as a result (see Bryden’s discussion of this issue, at page
574).9
$ As will be seen, it is open to debate as to whether this test applies in
Canada and the English Court of Appeal may have signaled a withdrawal
from such an approach (see Locabail (U.K.) Ltd. v. Bayfield Properties Ltd.,
[2001] 1 All E.R. 65). Having said this, the Canadian Judicial Council in its
Ethical Principles For Judges, points out that impartiality is not only
“concerned with perception, but more fundamentally with the actual absence
of bias and prejudgment.”
$ Many of the circumstances in which this issue will arise do not avail of an
easy answer. These tend to be entirely factually driven and thus, no absolute
answer can be provided for many specific fact situations. In R. v. S.(R.D.),
[1997] 3 S.C.R. 484, Cory J. indicated, for instance, that “whether a
8
See Philip Bryden, Legal Principles Governing Disqualification of Judges (2003), 82
Canadian Bar Review 555, at page 559.
9
In Caperton v. A. T. Massey Coal Co., No. 08-22 (2009), the United States Supreme
Court concluded that a judge that had received a campaign contribution from a party to
an appeal should have recused himself from the panel that heard the appeal.
11
reasonable apprehension of bias arises will depend entirely on the facts of
the case” and in Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259,
at paragraph 77, the Supreme Court of Canada said that there are no
“textbook” cases:
…this is an inquiry that remains highly fact-specific. In Man O'War
Station Ltd. v. Auckland City Council (Judgment No. 1), [2002] 3
N.Z.L.R. 577, [2002] UKPC 28, at par. 11, Lord Steyn stated that
"This is a corner of the law in which the context, and the particular
circumstances, are of supreme importance." As a result, it cannot be
addressed through peremptory rules, and contrary to what was
submitted during oral argument, there are no "textbook" instances.
Whether the facts, as established, point to financial or personal
interest of the decision-maker; present or past link with a party,
counsel or judge; earlier participation or knowledge of the litigation;
or expression of views and activities, they must be addressed carefully
in light of the entire context. There are no shortcuts.
$ An example illustrating this point is found in R. v. K.M.P., [2003] N.J.
No. 263 (C.A.). In K.M.P., counsel for the accused asked Chief Justice
Wells to recuse himself because he was a close personal friend of a witness
that had testified at the trial. Chief Justice Wells described counsel’s
argument as follows:
… counsel for the appellant raised, as a preliminary issue, the
potential for there being a reasonable apprehension of bias on my part
based on his assertion that Dr. Nizar Ladha is a "close personal friend"
of mine. It is correct that I have, on occasion, socialized with him
while with others at his home, at my home and at other residences and
places. However, while I happily include Dr. Ladha as a person I
would describe as a friend, I do not have the frequency or extent of
connection with him that would warrant describing him as a close
personal friend. Although the grounds of appeal expressed in the
12
notice of appeal do not so indicate, counsel has indicated that
ultimately the grounds of appeal would involve a psychiatric opinion
that was different than the psychiatric opinion given by Dr. Ladha as a
witness at the trial and would involve some criticism of Dr. Ladha by
reason of delays in seeing the appellant after he was engaged to
provide professional advice.
$ The panel of judges that heard the motion rejected counsel’s argument,
but Chief Justice Wells decided to recuse himself because it could be
“conveniently arranged”:
The panel is agreed that reasonable apprehension of bias has not been
established by the appellant (see R. v. S. (R.D.), [1997] 3 S.C.R. 484
and R. v. Avetysan (1999), 174 Nfld. & P.E.I.R. 34 (NLCA).
However, now that counsel for the appellant has raised the issue, even
though he has not established reasonable apprehension of bias, I am of
the view that unquestioned disposition of the respondent's application
is more likely to be achieved if I do not sit as a member of the panel
that hears it. That can conveniently be arranged.
$ In R. v. Gushman, [1994] O.J. No. 813 (Ont. Ct. Gen. Div.), Mr. Justice
Watt said that it “is trite that every allegation that judicial conduct gives rise
to a reasonable apprehension of bias falls to be decided upon its own facts.
It follows that a parade of authorities, parsing precedent in vain search of
factual equivalents or reasonable facsimiles, is not to the purpose.”
Similarly, in R. v. S.(R.D.), [1997] 3 S.C.R. 484, Cory J., at paragraph 136,
indicated that “other cases in which courts have dealt with similar
allegations are of very limited precedential value.”
13
$ If taken to an extreme, these comments suggest that this paper serves no
purpose and more importantly, that what other judges facing similar recusal
applications have said and decided is irrelevant. However, I believe we can
find significant assistance, when faced with a recusal motion, in what other
judges have decided in similar situations. In addition, though applications to
recuse oneself because of a disqualifying conflict are factually driven, there
are a number of general principles that are well settled and which can
provide us with guidance when faced with such an argument. These
precedents and principles are, in my view, invaluable. Most importantly
among them is that a “fundamental principle of natural justice is that a party
should receive a hearing before a tribunal which not only is independent, but
which also appears independent” (see Abitibi Consolidated Co. of Canada
v. Communications, Energy and Paperworkers Union of Canada, Local
60N (2008), 273 Nfld. & P.E.I.R. 17 (N.L.C.A.), at paragraph 13). The
importance of this principle was explained by one author who noted that the
existence of a disqualifying conflict of interest can cause a loss of faith in
the “integrity of the judiciary”:
It is of the essence of the judicial function that anyone exercising
judicial powers should be impartial. If there is a likelihood of conflict
between some political, business or personal interest of his own and
his responsibility as a judge to be impartial, a possibility that such
conflict may cause him to be biased in certain types of dispute or to
lean towards one party or the other in some particular case he is to
14
determine, the Rule of Law is at risk. To the extent that people are
aware of such conflict, popular faith in the integrity of the judiciary is
at risk too.10
$ Thus, “if the judge's words or conduct give rise to a reasonable
apprehension of bias, it colours the entire trial and cannot be cured by the
correctness of the subsequent decision” (see Marchand v. Public General
Hospital Society of Chatman (2000), 138 O.A.C. 201, at paragraph 140). In
Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners
of Public Utilities), [1992] 1 S.C.R. 623, the Supreme Court of Canada
indicted that the “damage created by apprehension of bias cannot be
remedied. The hearing, and any subsequent order resulting from it, is
void.”11
$ In determining whether or not we are in a disqualifying conflict of interest
an objective test must be applied. It is important to remember that though
we may personally feel that we are completely impartial in a specific
circumstance, consideration of whether or not a reasonable apprehension of
impartiality exists is also crucial to the proper functioning of the judicial trial
10
See Gordon Borrie, Judicial Conflicts of Interest in Britain, The American Journal of
Comparative Law, Vol. 18, No. 4 (Autumn, 1970), page 697.
11
In K. M. v. J.M., 2009 NLCA 8 (CanLII), the Court of Appeal granted leave to appeal
on the issue of “whether a judge may recuse himself/herself for certain aspects of
litigation but not for others, as was decided here.”
15
process.12 Thus, in Pinochet, Lord Hope said that it “is no answer for the
judge to say that he is in fact impartial and that he will abide by his judicial
oath. The purpose of the disqualification is to preserve the administration of
justice from any suspicion of impartiality.” Similarly in Caperton v. A. T.
Massey Coal Co., No. 08-22 (2009), the United States Supreme Court noted
that the “difficulties of inquiring into actual bias, and the fact that the inquiry
is often a private one, simply underscore the need for objective rules.
Otherwise there may be no adequate protection against a judge who simply
misreads or misapprehends the real motives at work in deciding the case.”
However, we must also “proceed rationally, examining actual facts. One
must neither rely on mere labels, mental rubber stamps, nor mechanical
rules. One must weigh rationales, justice, and practicality, and not lose sight
of them” and it is not “more important to have the appearance of justice than
to have the reality” (see Boardwalk Reit LLP v. Edmonton (City), [2008]
A.J. No. 515 (C.A.), at paragraphs 48 and 65). In addition, as pointed out by
Judge Porter in Newfoundland and Labrador (Director of Child, Youth and
Family Services) v. Thorne, [2007] N.J. No. 414 (P.C.), “as a practical
matter, if a Judge presiding in a rural judicial district might be disqualified
12
Lord Justice Scrutton felt compelled to write in The Work of the Commercial Courts,
(1921) 1 C.L.I. 6, (as quoted by Borrie), that "it is very difficult sometimes to be sure that
you have put yourself in a thoroughly impartial position between two disputants one of
your own class and one not of your class.”
16
from hearing more than one or two matters relating to any one individual,
then she or he would soon find her or himself unable to hear anything.”
$ Though it is important to distinguish between the concepts of impartially
and independence (impartiality relates to us as individual judges while
independence is primarily a constitutional requirement, see Ruffo v. Conseil
de la Magistrature, [1995] 4 S.C.R. 267), these two principles have often
been intertwined. As a result, not only must we be impartial and
independent, we must appear to be impartial and independent, but
appearance should not be allowed to necessarily triumph over reality. It has
been held that though all “adjudicative tribunals owe a duty of fairness to the
parties who appear before them” the “scope of the duty and the rigour with
which the duty is applied vary with the nature of the tribunal. Courts,
however, should be held to the highest standards of impartiality” (see White
v. True North Springs Ltd. (2001), 209 Nfld. & P.E.I.R. 1 (N.L.S.C.), at
paragraph 13).
$ The issue of impartiality or whether a disqualifying conflict of interest
exists is often, unfortunately, framed in terms of “bias” or “reasonable
apprehension of bias.” The word “bias” obviously has a very negative
connotation and it is capable of diverting one’s attention from the real issue.
As a result, I believe that recusal applications should be framed in terms of
17
whether or not a disqualifying event, act or comment has been established or
found to have occurred. Thus, the title chosen for this paper. Interestingly,
in R. v. Quinn (2006), 209 C.C.C. (3d) 278, the British Columbia Court of
Appeal, in considering this issue, indicated that there is no test “for recusal
and judges often recuse themselves from cases which they are not legally
disqualified from hearing. This tendency to err on the side of caution does
not reflect the standard which must be met for disqualification, which is that
of a reasonable apprehension of bias.” The Court of Appeal concluded that
the issue “is always properly framed as one of disqualification.” Thus, in the
particular circumstances of Quinn, in which the trial judge refused to recuse
himself, the Court of Appeal held that “the question before us is not whether
Mr. Justice Brine ought to have recused himself, but rather whether he was
disqualified from hearing the case before him because of a reasonable
apprehension of bias.”
$ The Canadian Judicial Council’s Ethical Principles For Judges
recommends that we “should strive to ensure that [our] conduct, both in and
out of court, maintains and enhances confidence in [our] impartiality and
that of the judiciary.” However, what is impartiality?
18
WHAT IS IMPARTIALITY?
$ In R. v. Velente, [1985] 2 S.C.R. 673, at paragraph 15, the Supreme Court
of Canada described impartiality as being “a state of mind or attitude…in
relation to the issues and the parties in a particular case. The word
‘impartial’…connotes absence of bias, actual or perceived.” In ArsenaultCameron v. Prince Edward Island, [1999] 3 S.C.R. 851, at paragraphs 4
and 5, Binnie J., stressed the importance of the words “in a particular case”
and held that as a result, “a real predisposition to a particular result” must be
shown and the applicant must “show wrongful or inappropriate declarations
showing a state of mind that sways judgment in order to succeed.”13
$ In R. v. S.(R.D.), [1997] 3 S.C.R. 484, impartiality was described “as a
state of mind in which the adjudicator is disinterested in the outcome, and is
open to persuasion by the evidence and submissions” while bias was defined
as “a state of mind that is in some way predisposed to a particular result, or
that is closed with regard to particular issues.” In Arsenault-Cameron v.
For an illustration of a trial judge’s disqualification being seen as necessary because of
the close nature of the two cases involved and comments concerning credibility made by
the trial judge in one of them, see R. v. Downer (1977), 35 C.C.C. (2d) 198 (Ont. S.C.).
Also see R. v. Camardi, [2009] O.J. No. 163 (C.A.), in which a reasonable apprehension
of bias was found to have occurred based upon the trial judge’s comment concerning a
witness and on the basis that the trial judge having “summarily dismissed counsel’s
attempt to argue that there should be a mistrial without giving counsel any opportunity to
make submissions. The trial judge’s response to counsel’s entirely proper motion for a
mistrial could only further convey the reasonable apprehension that the trial judge had
prejudiced the matter.” Also see R. v. R.J., 2009 ONCA 138.
13
19
Prince Edward Island, [1999] 3 S.C.R. 851, at paragraph 3, the Court
indicated that “true impartiality” does not “require that the judge have no
sympathies or opinions; it requires that the judge nevertheless be free to
entertain and act upon different points of view with an open mind.” In
Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, the Court, at
paragraph 58, described the “essence” of impartiality as involving an “open
mind”:
The essence of impartiality lies in the requirement of the judge to
approach the case to be adjudicated with an open mind. Conversely,
bias or prejudice has been defined as:
a leaning, inclination, bent or predisposition towards one side
or another or a particular result. In its application to legal
proceedings, it represents a predisposition to decide an issue
or cause in a certain way which does not leave the judicial
mind perfectly open to conviction. Bias is a condition or state
of mind which sways judgment and renders a judicial officer
unable to exercise his or her functions impartially in a
particular case.
$ Similarly, in Ex parte Perry (1929), 51 C.C.C. 105 (P.E.I.S.C.), "bias"
was defined as follows:
Bias as applied to a person or tribunal exercising judicial functions
is a state of mind disqualifying the person affected from
adjudicating impartially in respect of the subject-matter under
consideration. It is not a concrete fact but is an inference to be
drawn from relevant facts. The facts from which bias may be
implied take a wide range and include not only financial interest,
however slight, by any member of the tribunal in the result of the
adjudication; or relationship of any such member within a
20
prohibited degree to a party to the litigation; but, any other interest
in or relation to the litigation, which should be assumed to affect
any member of the tribunal with prejudice or partiality in relation
thereto.
$ In Marchand v. Public General Hospital Society of Chatman (2000),
138 O.A.C. 201, the Ontario Court of Appeal indicated that impartiality
“reflects a state of mind in which the judge is disinterested in the outcome
and is open to persuasion by the evidence and submissions. In contrast, bias
reflects a state of mind that is closed or predisposed to a particular result on
material issues.”
$ In Committee for Justice and Liberty v. National Energy Board, [1978]
1 S.C.R. 369, the Supreme Court of Canada in an attempt to define
impartiality in what it described as a “practical manner”, indicated that when
this issue is raised, a trial judge should ask him or herself: “what would an
informed person, viewing the matter realistically and practically - and
having thought the matter through - conclude. Would he think that it is more
likely than not that [the decision-maker], whether consciously or
unconsciously, would not decide fairly.”
$ In Boardwalk Reit LLP v. Edmonton (City), [2008] A.J. No. 515, the
Alberta Court of Appeal, at paragraph 29, indicated that the grounds upon
21
which an allegation of impartiality is raised must be “serious and
substantial”:
To have any legal effect, an apprehension of bias must be reasonable,
and the grounds must be serious, and substantial. Real likelihood or
probability is necessary, not a mere suspicion: R. v. R.D.S. [1997] 3
S.C.R. 484, 532 (para. 112). The threshold is high: id. at 532 (para.
113). The test of appearance to a reasonable neutral observer does not
include the very sensitive or scrupulous conscience: see Wewaykum
I.B. v. R., supra (para. 76); cf. Makowsky v. Doe, supra (para. 22).
This challenge is "favor", not interest, says the British Columbia
Court of Appeal in G.W.L. Prop. v. W.R. Grace, supra.
$ Having considered the nature of impartiality and what, in a general
manner, constitutes a disqualifying event, the next question to be considered
is what test should be applied when it is suggested that a disqualifying event,
act or comment has occurred.
WHAT IS THE APPROPRIATE TEST?
$ In Mugesera v. Canada (Minister of Citizenship and Immigration),
[2005] 2 S.C.R. 91, at paragraph 13, the Supreme Court of Canada noted
that there “is a presumption of impartiality. The burden of proof is on the
party alleging a real or apprehended breach of the duty of impartiality,
who must establish actual bias or a reasonable apprehension of bias.” The
onus is one of a balance of probabilities (see Peart v. Peel Regional Police
Services Board (2006), 43 C.R. (6th) 175 (Ont. C.A.), at paragraph 40).
22
$ In Abitibi Consolidated Co. of Canada v. Communications, Energy and
Paperworkers Union of Canada, Local 60N (2008), 273 Nfld. & P.E.I.R.
17, the Newfoundland & Labrador Court of Appeal concluded that whether
a trial judge lacks the necessary impartiality or there is a reasonable
apprehension that she or he does, requires the adoption of an objective test.
The Court of Appeal quoting from the Committee for Justice and Liberty v.
National Energy Board, indicated that the “apprehension of bias must be a
reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information”
(at paragraph 14). In addition any comments made by a judge during a trial
“must be considered cumulatively and...the entire trial record must be
examined and the comments placed in their proper context” (see
R. v. R.J., 2009 ONCA 138, at paragraph 3). In Peart v. Peel Regional
Police Services Board (2006), 43 C.R. (6th) 175 (Ont. C.A.), at paragraph
45, the Court of Appeal rejected adopting “the ‘reasonable African Canadian
male’ approach to a reasonable apprehension of bias claim.” The Court of
Appeal concluded, at paragraph 53, that judicial impartiality “is not a matter
of personal perception. The personal characteristics of a litigant, such as
race, may well affect the litigant's personal view of judicial partiality, but
they cannot create a reasonable apprehension of bias where one would
23
otherwise not exist. The outcome of a bias inquiry cannot turn on the
perspective of the party advancing that claim. There either is or there is not
a reasonable apprehension of bias.” In Committee for Justice and Liberty v.
National Energy Board, the Supreme Court of Canada added that the
“grounds for this apprehension must, however, be substantial and I ...
refus[e] to accept the suggestion that the test be related to the very sensitive
or scrupulous conscience.”
$ The decision in Committee for Justice and Liberty v. National Energy
Board, was considered by the Supreme Court of Canada in R. v. S.(R.D.),
[1997] 3 S.C.R. 484, in which various members of the Court described their
view as regards the concept of reasonable apprehension of impartiality.
Included are the following:
This test has been adopted and applied for the past two decades. It
contains a two-fold objective element: the person considering the
alleged bias must be reasonable, and the apprehension of bias itself
must also be reasonable in the circumstances of the case. See
Bertram, supra, at pp. 54-55; Gushman, supra, at para. 31. Further
the reasonable person must be an informed person, with knowledge
of all the relevant circumstances, including "the traditions of
integrity and impartiality that form a part of the background and
apprised also of the fact that impartiality is one of the duties the
judges swear to uphold": R. v. Elrick, [1983] O.J. No. 515 (H.C.), at
para. 14. See also Stark, supra, at para. 74; R. v. Lin, [1995] B.C.J.
No. 982 (S.C.), at para. 34. To that I would add that the reasonable
person should also be taken to be aware of the social reality that
forms the background to a particular case, such as societal
24
awareness and acknowledgement of the prevalence of racism or
gender bias in a particular community.
We conclude that the reasonable person contemplated by de
Grandpré J., and endorsed by Canadian courts is a person who
approaches the question of whether there exists a reasonable
apprehension of bias with a complex and contextualized
understanding of the issues in the case. The reasonable person
understands the impossibility of judicial neutrality, but demands
judicial impartiality…
Before concluding that there exists a reasonable apprehension of
bias in the conduct of a judge, the reasonable person would require
some clear evidence that the judge in question had improperly used
his or her perspective in the decision-making process; this flows
from the presumption of impartiality of the judiciary. There must be
some indication that the judge was not approaching the case with an
open mind fair to all parties. Awareness of the context within which
a case occurred would not constitute such evidence; on the contrary,
such awareness is consistent with the highest tradition of judicial
impartiality…
Regardless of the precise words used to describe the test, the object of
the different formulations is to emphasize that the threshold for a
finding of real or perceived bias is high. It is a finding that must be
carefully considered since it calls into question an element of judicial
integrity. Indeed an allegation of reasonable apprehension of bias calls
into question not simply the personal integrity of the judge, but the
integrity of the entire administration of justice. See Stark, [1994] O.J.
No. 406 at paras. 19-20. Where reasonable grounds to make such an
allegation arise, counsel must be free to fearlessly raise such
allegations. Yet, this is a serious step that should not be undertaken
lightly.
$ In Marchand v. Public General Hospital Society of Chatman (2000),
138 O.A.C. 201 (C.A.), it was held that the “party alleging bias has the
25
onus of proving it on the balance of probabilities” and that the threshold
for a finding of impartiality or the appearance of it is high:
The threshold for a finding of actual or apprehended bias is high.
Courts presume that judges will carry out their oath of office. Thus,
to make out an allegation of judicial bias, requires cogent evidence.
Suspicion is not enough. The threshold is high because a finding of
bias calls into question not just the personal integrity of the judge
but the integrity of the entire administration of justice.
$ In summary, the “test for whether there is a reasonable apprehension of
bias is an objective one; the subjective views of a party do not form part of
the test” (see Makowsky v. John Doe, [2007] B.C.J. No 1809 (S.C.), at
paragraph 22) and “what is to be borne in mind is the state of mind of the
decision maker, as assessed by the reasonable person fully apprised of the
surrounding circumstances…The cases dealing with bias all speak of the
objective perspective of the reasonable observer, and do not suggest the
addition of subjective considerations to the test…the person considering the
alleged bias must be reasonable, and the apprehension of bias itself must
also be reasonable in the circumstances of the case” (see Lesiczka v. Sahota,
[2007] W.W.R. 456 (B.C.S.C.), at paragraphs 17 and 18). Thus, reasonable
apprehension of bias “does not exist just in the subjective views of a litigant”
26
(see G.W.L. Properties Ltd. v. W.R. Grace & Co. of Canada Ltd. (1992), 74
B.C.L.R. (2d) 283 (C.A.), at paragraph 18).14
$ So, who decides whether or not a disqualifying event has occurred and
what procedure for a recusal application should be followed?
WHO SHOULD CONSIDER THE ISSUE AND WHAT PROCEDURE
SHOULD BE FOLLOWED?
$ The issue of judicial disqualification will arise in one of four ways (see
14
In Helow v Secretary of State for the Home Department, [2008] UKHL 62, Lord
Hope defined the nature and characteristics of a “fair minded and informed observer” as
follows:
The fair-minded and informed observer is a relative newcomer among the select
group of personalities who inhabit our legal village and are available to be called
upon when a problem arises that needs to be solved objectively. Like the reasonable
man whose attributes have been explored so often in the context of the law of
negligence, the fair-minded observer is a creature of fiction. Gender-neutral (as this is
a case where the complainer and the person complained about are both women, I shall
avoid using the word "he"), she has attributes which many of us might struggle to
attain to.
The observer who is fair-minded is the sort of person who always reserves judgment
on every point until she has seen and fully understood both sides of the argument. She
is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson
(2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of
the person who has brought the complaint. The "real possibility" test ensures that
there is this measure of detachment. The assumptions that the complainer makes are
not to be attributed to the observer unless they can be justified objectively. But she is
not complacent either. She knows that fairness requires that a judge must be, and
must be seen to be, unbiased. She knows that judges, like anybody else, have their
weaknesses. She will not shrink from the conclusion, if it can be justified objectively,
that things that they have said or done or associations that they have formed may
make it difficult for them to judge the case before them impartially.
27
Bryden, at page 589):
1. a judge may decide to withdraw from a case without consulting the
parties;
2. a judge may seek submissions from counsel on whether her or his
recusal is required;
3. a party to the proceeding may ask the judge to disqualify her or
himself; and
4. a party may, on appeal, seek to have a judgment set aside based
upon a disqualifying event, act or comment having occurred during
the trial or sentence hearing.15
$ Who should hear and determine an application for recusal? The
Newfoundland and Labrador Court of Appeal concluded in Abitibi
Consolidated Co. of Canada v. Communications, Energy and
Paperworkers Union of Canada, Local 60N (2008), 273 Nfld. & P.E.I.R.
17, that “the question of bias, when raised, should be dealt with by the
person against whom the allegation is made” (at paragraph 35). Similarly, in
Transport and Allied Workers Union, Local 855 v. Newfoundland and
Labrador (Labour Relations Board) (2008), 274 Nfld. & P.E.I.R. 42
(N.L.S.C.), it was held, at paragraph 12, that when an issue of impartiality
15
For a consideration of disqualifying comments having been found to have been made
by a trial judge at a sentence hearing, see R. v. Kaminsky, [2008] A.J. No. 639 (C.A.).
28
arises, “a party ought to, and may be obligated to, advance its challenge
before the tribunal in respect of which the bias is claimed.” A similar
conclusion was reached by Mr. Justice Cory in S.(R.D.). In Boardwalk Reit
LLP v. Edmonton (City), [2008] A.J. No. 515, the Alberta Court of Appeal,
at paragraph 7, described the appropriate procedures on a disqualification
motion as being “uniform.” The Court of Appeal indicated the “practice is
for the impugned judge (or judges) to rule on the motion that he or she (or
they) withdraw from hearing or deciding the case.” In Arsenault-Cameron
v. Prince Edward Island, [1999] 3 S.C.R. 851, an application requesting
that Mr. Justice Bastarche recuse himself was decided by Mr. Justice
Bastarache.
$ As a result, it is likely that when a party suggests that a disqualifying
event has occurred, it will be heard by the trial judge whose impartiality is
being questioned. In R. v. Mitchell, [2002] B.C.J. No. 1378 (S.C.), it was
noted that this can be “problematic”:
The dynamics of bias are problematic. The application must be
made to the very judge against whom bias is alleged. An outsider to
the system might think that any judge so approached would of
course say, "Who, me? Never!" But, in fact, judges are very
sensitive to issues of conflict or bias and the easy path is to decline
to preside whenever an allegation is made.
There is a countering issue. It is important that litigants, both in the
criminal and civil domain, not be able to remove a judge by a mere
29
allegation of bias. The evil is "judge shopping", in which a litigant
seeks a favourable result by trying to choose (or to avoid) one judge.
$ It is important to keep in mind that when it is suggested that a
disqualifying event has occurred, this proposition does not constitute an
attack on our personal integrity, but rather involves counsel fulfilling their
obligations to their clients and to the administration of justice. Having said
this, there is nothing wrong with insisting that counsel be very specific as to
what facts or actions they are suggesting establishes that a disqualifying
event has occurred (see for instance Mr. Justice Rowe’s comments in R. v.
Mercer, [2003] N.J. No. 33 (S.C.), as regards the difficulty of dealing with
such an argument when the facts relied upon are not clearly set out by
counsel). At the very least, any such application for a recusal should be in
writing and in accordance with the Rules of the Provincial Court of
Newfoundland and Labrador in Criminal Proceedings, SI/2004-134, so that
there is a clear record of what is being suggested. In Marshall v. Marshall,
[2008] N.J. No. 178 (S.C.), Mr. Justice LeBlanc noted that it is imperative
that any allegation of bias or reasonable apprehension of bias must be
“carefully considered based upon the specific facts and circumstances of the
case” (at paragraph 9):
Impartiality goes to the heart of the integrity of our court system.
Therefore, it is imperative that any allegation of bias or reasonable
30
apprehension of bias be carefully considered based upon the specific
facts and circumstances of the case. Having said this, it is also clear
that the test for proof of bias or apprehended bias has been described
as requiring a high threshold with there being a need to produce
cogent evidence. This is required due primarily to the presumption of
impartiality related to judicial decision-makers. A real probability of
bias must be demonstrated.
$ In R. v. Fell, 2009 ONCA 551, the accused overheard the trial judge
make a comment in a hall way concerning a witness, before the crossexamination of that witness by the accused’s counsel had been completed.
The accused alleged that he overheard the trial judge say that “he is so far
the most credible and insightful witness.” This assertion was put forward by
the accused’s counsel in asking that the trial judge recuse himself. The trial
judge declined to do so. He agreed that he had made a comment concerning
the witness, but denied that he mad the comment alleged. The Ontario Court
of Appeal affirmed the trial judge’s decision. As regards the manner in
which the issue of a reasonable apprehension of bias was raised, the Court of
Appeal was critical:
The appellant did not give evidence about what he was alleged to have
overheard. The allegations were put before the court through the
submissions of counsel. There was no evidence called. In particular,
no effort was made to call the deputy to whom the comments were
allegedly made nor the escorting officer who was with the appellant at
the time the comments are alleged to have been made. When an
allegation of bias or reasonable apprehension of bias is made against a
trial judge, counsel have an obligation to prepare and provide the
court with a record of the evidence they rely on in support of this
serious allegation. Such a record then is available for the trial judge’s
31
consideration and ruling, as well as for any appellate review of that
judge’s decision down the road. There was no such record in this
case.
$ In addition, there will be instances in which we must raise the issue
ourselves and provide counsel with an opportunity to make submissions.
The Canadian Judicial Council’s Ethical Principles For Judges points out
that the “position in England and Australia appears to be that the judge
should disclose any interest or factor which might suggest that the judge
should be disqualified. This approach, however, is premised on the view
that the disclosure is made with a view to seeking the consent of the parties
for the judge to hear the case.” We should, however, be cautious in agreeing
to continue to hear a case simply by consent because of the power imbalance
involved and because if a disqualifying event has occurred, counsel’s
consent will not necessarily cure it, though waiver might play a role in the
determination of that question. The Canadian Judicial Council makes the
following recommendation (at Chapter 6):
The judge should make disclosure on the record and invite
submissions from the parties in two situations. The first arises if the
judge has any doubt about whether there are arguable grounds for
disqualification. The second is if an unexpected issue arises shortly
before or during a proceeding. The judge’s request for submissions
should emphasize that it is not counsel’s consent that is being sought
but assistance on the question of whether arguable grounds exist for
disqualification and whether, in the circumstances, the doctrine of
necessity applies.
32
$ Having considered the appropriate procedure to be followed, the next
issue to address is when should a recusal application be presented?
WHEN SHOULD THE ISSUE BE RAISED?
$ Ideally, any allegation of an apprehension of impartiality or a
disqualifying event having occurred should be raised well before a trial is
scheduled to commence. However, it can arise during a trial or as a result of
comments made during a sentence hearing.16 In addition, it can be raised
after a decision has been rendered. In appellate proceedings, this does not
cause any difficulty because of an appeal court’s ability to reconsider its
own decisions (for an example, see Pinochet and Wewaykum Indian Band
v. Canada). When the argument is raised before a trial judge, then it must
be recalled that we have the authority to reopen a trial even after a
16
See R. v. Kaminsky, 2008 CaeswellAlta 787; [2008] A.J. No. 639 (C.A.), in which the
Court of Appeal concluded that trial judge’s comments during the sentence hearing
illustrated a reasonable apprehension of bias which required the convictions entered by
her to be set aside because they were “tainted” and “void.” On the issue of whether a
trial judge’s comments during a sentence hearing could “be treated separately from the
proceedings prior to conviction for the purpose of assessing apprehension of bias”, the
Court of Appeal indicted that no “authority has been cited which deals directly with the
issue.” However, the Court of Appeal concluded that in the circumstances of this
particular case it could (at paragraph 19):
…the circumstances of this case lend themselves to making a strict bifurcation
between the conviction and sentencing process. Here the comments were made
within a few minutes of the conviction and may reasonably be taken into account
when examining whether there is a reasonable apprehension of bias in the
proceedings that have just occurred.
33
conviction has been entered (see R. v. Kowall (1996), 108 C.C.C. (3d) 481
(Ont. C.A.)).
$ In addition, as pointed out earlier, judges have a responsibility to bring
matters to the attention of counsel which might form a basis for
disqualification (see R. v. Quinn (2006), 209 C.C.C. (3d) 278 (B.C.C.A.)).
$ Finally, a review of the jurisprudence considering the concept of
reasonable apprehension of bias or disqualifying events, reveals that though
the potential situations in which such an argument can be raised are
innumerable, there does exist a list of categories or situations in which such
an argument is most commonly raised. I intend now to consider a number of
these specific instances or categories.
A REVIEW OF THE MOST COMMON INSTANCES IN WHICH A
PURPORTED DISQUALIFYING CONFLICT IS LIKELY TO BE
RAISED
$ As was pointed out earlier, potential disqualifying events can arise in
numerous situations and thus, an exhaustive list cannot be prepared. Having
said this, there are a number of specific situations which give rise to recusal
applications. Before considering each of these situations, it is apparent from
a review of the jurisprudence in this area that the test is a daunting one and
the presumption of impartiality in Canada is a significant hurdle to
overcome. A mature and confident judiciary will not and should not allow
34
itself to be disqualified without substantial evidence establishing a
substantial reason to do so.
$ In Boardwalk Reit LLP v. Edmonton (City), [2008] A.J. No. 515, the
Alberta Court of Appeal listed a number of instances, in which it was
concluded that a reasonable apprehension of bias had not established.
Consider the following (at paragraph 26):
(a) One counsel is someone with whom the trial judge sometimes
socializes, but he does not do so around the time of an actual case
and did not around the time of this case, and never mentions his
cases with that lawyer: Wellesley L. Trophy Lodge v. BLD
Silviculture, 2006 BCCA 328, [2006] 10 W.W.R. 82.
(b) The judge is a close neighbour and social friend of counsel's
parents, and is the father of a classmate of counsel: Banyay v.
I.C.B.C. (Actton Petr. Sales) (1995) 17 B.C.L.R. (3d) 216 (C.A.).
(c) Even in a big city, where the judge's brother is a member of the
large law firm appearing for one side; one cannot bar a judge from
hearing any cases involving a large firm in his or her city: G.W.L.
Property v. W.R. Grace Ins. Co. of Canada (1992) 74 B.C.L.R.
(2d) 283, 288-89 (one J.A.).
(d) One party's firm of lawyers also acts for the trial judge in
drafting and holding the judge's will, even if the firm is revising the
will about the same time as the trial: Taylor v. Lawrence, [2002]
EWCA Civ. 90, [2003] Q.B. 528, [2002] 2 All E.R. 353.
(e) Two lawyers are in a big firm. One (a partner) is retained to
defend a suit against a small law firm. The plaintiff in that suit is the
respondent in a probate proceeding (a separate suit) being tried by a
35
judge married to the other lawyer (an employee) in the big firm: Re
Serdahaly Est. (Popke v. Bolt), 2005 ABQB 861, 392 A.R. 220.
(f) Counsel for the accused is from the same law firm which had
previously defended the son of the trial judge on a somewhat similar
criminal charge: R. v. Nicol, 2006 BCCA 370, 211 C.C.C. (3d) 33.
(g) A statutory tribunal retains a lawyer as its adviser who had
previously advised it with respect to other matters with which one
party before it had been involved (which had been overturned on
appeal), irrespective of the lawyer's personal views: Ayangma v.
Human Rts. Comm., 2005 PESCAD 18, 248 N. & P.E.I.R. 79
(paras. 19-20).
(h) The trial judge was divorced from a lawyer practising with one
of the firms acting in the lawsuit in question, but no longer has any
relationship with him: Middelkamp v. Fraser Valley Real Est. Bd.
[1993] B.C.J. No. 2695 (S.C. June 10) (paras. 7-8), affd. (1993) 83
B.C.L.R. (2d) 257, 20 C.P.C. (3d) 27 (C.A.).
(i) The trial judge's present spouse was represented in unrelated
litigation by one of the big law firms acting on the present trial, and
the trial judge was an inactive officer of the spouse's management
company (which was not a party): Middelkamp v. Fraser Valley
Real Est. Bd., supra (S.C.) (paras. 9-15).
(j) The trial judge's son is a lawyer employed in a firm of over 50
lawyers and is not a partner and was not involved on the file, but his
firm acts for one side: Makowsky v. Doe, 2007 BCSC 1231, [2007]
B.C.J. No. 1809 (paras. 4, 5, 9, 20, 29, 35), affd. and adopted 2008
BCCA 112, [2008] B.C.A.C. Uned. 22, [2008] B.C.J. #576 (March
7).
$ Each of these types of potential disqualifying events will subsequently be
considered. However, before doing so it is important to note that in R. v.
36
Torbiak and Campbell (1974), 18 C.C.C. (2d) 229, the Supreme Court of
Canada suggested that a trial judge must be careful to “confine himself as
much as possible to his own responsibilities.”17 This is important, because
as will be seen, when judges fail to confine themselves to their own
responsibilities, difficulties arise. One example involves excessive judicial
intervention in the trial process.
EXCESSIVE INTERVENTION
$ It has been held that an “apprehension of bias will not result merely
from the active participation of a judge in the trial. There must be
something more.” However, there “is a point at which judicial
intervention becomes interference, the image of impartiality is destroyed
and the court is deprived of its jurisdiction” (see Metis Child, Family and
Community Services v. A.J.M. (2008), 225 Man. R. (2d) 261 (C.A.), at
paragraph 58). In R. v. Baccari, 2011 ABCA 205, it was noted that during
argument, “trial judges are not precluded from commenting on evidence or
attempting to focus the argument on issues of particular concern to the trial
judge. Give and take between a trial judge and counsel may be robust but
17
For an example of a tribunal extending beyond its role and causing a disqualifying
event to occur as a result, see Joyce v. Newfoundland and Labrador Chiropractic
Board, [2008] N.J. No. 241 (S.C.).
37
observations made by a trial judge during argument are not
pronouncements...A trial judge is not precluded from voicing concerns
about the evidence. Nor is a trial judge precluded from directing counsel’s
attention to the real issues in the case. Trial judges are not expected to be
mute manikins.”
$ In R. v. Riche (1996), 146 Nfld. & P.E.I.R. 27, the Newfoundland and
Labrador Court of Appeal indicated that it “is clear that while a trial judge
has the right to intervene, the judge must not do so as to give the
impression that he or she is aligned on one side or the other…Indeed, it is
the duty of the trial judge to intervene to ensure the element of fairness
and, in particular, to ensure that the accused person gets a fair trial.”
However, it is also important not to start “from the premise that anything
said by the trial judge that does not reflect an outright acceptance of the
appellants' position demonstrates a reasonable apprehension of bias” (see
Peart v. Peel Regional Police Services Board (2006), 43 C.R. (6th) 175
(Ont. C.A.), at paragraph 59).18
18
In Metis Child, Family and Community Services v. A.J.M. (2008), 225 Man. R.
(2d) 261 (C.A.), at paragraph 74, it was held that “with regard to procedure, a judge
should wait to ask questions until after cross-examination and re-examination unless
he or she requires clarification in order to follow the cross-examination
appropriately. For example, if expert evidence is adduced in direct which the judge
cannot understand, then the judge is unlikely to understand the cross-examination.
Otherwise, the judge should wait. It may be the desired clarification will arise from
the cross-examination. In most cases, it is bad practice to ask a series of questions of
38
$ In R. v. Valley (1986), 26 C.C.C. (3d) 207, the Ontario Court of Appeal
indicated that interventions by a judge “creating the appearance of an
unfair trial may be of more than one type and the appearance of a fair trial
may be destroyed by a combination of different types of intervention.”
Thus, excessive intervention can constitute a disqualifying act. However,
this does not prevent all judicial intervention. In Marchand v. Public
General Hospital Society of Chatman (2000), 138 O.A.C. 201, for
instance, the Ontario Court of Appeal indicated that such intervention is
permissible as long as the trial judge has not prejudged the “issues in
dispute”:
A trial judge has the right indeed the duty, to intervene to clarify
and understand the evidence or to control the trial provided that in
intervening the trial judge does not prejudge the issues in dispute or
the credibility of the witnesses.19
$ Thus, intervention in the trial process does not ipso facto establish an
apprehension of impartiality or create a disqualifying event. More is
required and it is important that we not fear intervening when appropriate
a witness prior to cross-examination being conducted by opposing counsel. It is
especially inappropriate because it may effectively undermine the impact of crossexamination by alerting the witness to certain issues.”
19 For an example, see R. v. Gunn, 2009 SKQB 57 (CanLII).
39
(see Michel v. The Queen (The Court of Appeal of Jersey) [2009] UKPC
41).
$ In Rowe (Guardian ad litem of) v. Sears Canada Inc. (2006), 258
Nfld. & P.E.I.R. 319 (N.L.S.C.), it was argued that the trial judge had
created a reasonable apprehension of impartiality by comments he made
during pre-trial hearings. At paragraph 29, Mr. Justice Hall considered the
importance of not allowing such an argument to frustrate proper trial
management:
The trial judge who sits passively through a hearing saying nothing
and being totally inscrutable to the counsel before her or him, does no
service to those counsel, nor the parties whom they are representing.
Our adversarial trial process thrives on the parry and thrust of lively
debate and exchange of positions by the various parties to the process.
By inserting herself or himself into this exchange, by the methodology
of asking probing questions, the trial judge hopefully improves the
quality of debate and the ultimate rationale for the decision of the
Court by encouraging a superior level of informed and considered
argument. I am satisfied that it is quite illogical for a trial judge to sit
passively through a hearing without asking any questions of counsel
and not indicating to counsel that the judge requires certain issues to
be dealt with.
$ In Valley, the Court of Appeal set out the following as the “the principal
types of interventions by trial judges” which cause an apprehension of
impartiality:
I Questioning of an accused or his witnesses to an extent or in a
manner which conveys the impression that the judge is placing his
authority on the side of the prosecution and which conveys the
40
impression of disbelief of the accused or defence witnesses: see
Brouillard (a.k.a. Chatel) v. The Queen (1985), 17 C.C.C. (3d) 193,
16 D.L.R. (4th) 447, [1985] 1 S.C.R. 39; R. v. Denis, [1967] 1
C.C.C. 196, [1966] Que. Q.B. 404n (Que. C.A.).
In Brouillard v. The Queen, supra, during the accused's testimony
the judge asked more questions than both counsel, interrupted the
accused's examination-in-chief and cross-examined him. The judge
posed about 60 questions to a defence witness and interrupted her
10 times. Both the accused and his witness were subjected to
sarcastic remarks by the trial judge.
II Where the interventions have made it really impossible for
counsel for the defence to do his or her duty in presenting the
defence, for example, where the interruptions of the trial judge
during cross-examination divert counsel from the line of topic of his
questions or break the sequence of questions and answers and
thereby prevent counsel from properly testing the evidence of the
witness: see R. v. Matthews (1983), 78 Cr. App. R. 23 at p. 31;
Jones v. National Coal Board, [1957] 2 Q.B. 55 at p. 65.
III Where the interventions prevent the accused from doing himself
justice or telling his story in his own way: see R. v. Matthews,
supra, at p. 31; R. v. Perks, [1973] Crim. L.R. 388; R. v. Cain
(1936) 25 Cr. App. R. 204; R. v. Hulusi (1973), 58 Cr. App.R. 378.
IV The courts have drawn a distinction between conduct on the part
of the presiding judge, which is discourteous to counsel and
indicates impatience but which does not invite the jury to disbelieve
defence witness, and conduct which actively obstructs counsel in his
work: R v. Hircock, [1970] 1 Q.B. 67 (C.A.); R. v. Ptohopoulos
(1967), 52 Cr. App. R. 47. The authorities have consistently held
that mere discourtesy, even gross discourtesy, to counsel cannot by
itself be a ground for quashing a conviction. Where, however, the
trial judge's comments suggest that counsel is acting in a
professionally unethical manner for the purpose of misleading the
jury, the integrity and good faith of the defence may be denigrated
41
and the appearance of an unfair trial created: R. v. Turkiewicz,
Barrow and MacNamara (1979), 50 C.C.C. (2d) 406, 103 D.L.R.
(3d) 332, 26 O.R. (2d) 570 (Ont. C.A.); R. v. Hulusi, supra.
$ Similarly, in R. v. C.S.M., [2008] B.C.J. No. 1895, the British
Columbia Court of Appeal indicated that interventions “by the judge
creating the appearance of an unfair trial may be of more than one type
and the appearance of a fair trial may be destroyed by a combination of
different types of intervention. The ultimate question to be answered is
not whether the accused was in fact prejudiced by the interventions but
whether he might reasonably consider that he had not had a fair trial or
whether a reasonably minded person who had been present throughout the
trial would consider that the accused had not had a fair trial.” The Court
of Appeal described the “principal types of interventions by trial judges
which have resulted in the quashing of convictions” as follows (at
paragraph 9):
Questioning of an accused or his witnesses to an extent or in a manner
which conveys the impression that the judge is placing his authority
on the side of the prosecution and which conveys the impression of
disbelief of the accused or defence witnesses…
Where the interventions have made it really impossible for counsel for
the defence to do his or her duty in presenting the defence…
Where the interventions prevent the accused from doing himself
justice or telling his story in his own way…
42
The courts have drawn a distinction between conduct on the part of
the presiding judge, which is discourteous to counsel and indicates
impatience but which does not invite the jury to disbelieve defence
witnesses, and conduct which actively obstructs counsel in his work.
$ In Metis Child, Family and Community Services v. A.J.M. (2008), 225
Man. R. (2d) 261 (C.A.), parents sought to have a child protection order
overturned based upon excessive interventions in the hearing by the trial
judge. The Manitoba Court of Appeal indicated that during the
“September 2005 phase of the trial, the trial judge asked a total of 150
questions of 20 witnesses over eight days of evidence. In the parents'
submission, there were 16 interventions and 117 questions that were
inappropriate and supportive of their concerns with respect to bias.” The
Court of Appeal indicted that though the “appearance of impartiality
should not be compromised”, in child protection cases the judge must “do
what he reasonably can to see to it that his decision will be based upon the
most relevant and helpful information available.” The Court of Appeal
explained this distinction based upon the type of case being heard, by
stating (at paragraph 51):
Where the welfare of children are concerned, the trial judge may
intervene as much as is necessary in order to clarify the facts, confirm
his understanding of expert testimony and generally make sure his
appreciation of the evidence is correct. If necessary, he or she may
intervene to keep the proceedings moving along efficiently. This is
true in custody cases, but even more necessary in child protection
43
cases where the state with all the resources at its disposal is
intervening in a substantial way in the relationship between children
and their parents.20
$ In R. v. C.H., [1999] N.J. No. 273 (C.A.), the Court of Appeal
summarized the applicable principles and concluded (at paragraph 18):
A trial judge has both the right and the duty to intervene in
examination or cross-examination to clear up ambiguities, provide
further information on a matter left vague, provide information on
something apparently relevant but left out, and to limit unnecessary
repetition and protect witnesses from unnecessarily harassing crossexamination;
The right of intervention must be exercised with judicial discretion
and is best left to a point in time when counsel has concluded or is
passing to a new subject; and
The intervention must not fetter the right of an accused, through his
counsel, to subject any witness's testimony to the test of crossexamination and in particular cross-examination relevant to the issue
of credibility must not be improperly curtailed…
$ The Court of Appeal felt compelled in C.H. to indicate that “when the
content of some of the interventions is considered, such as the expression by
the trial judge of his personal views as to explanations for apparent
inconsistencies or discrepancies, on occasion before the witness even
answered, the impression is given that defence counsel's real adversary in
the courtroom was the trial judge, not Crown counsel.” Similarly in R. v.
20
Also see Children's Aid Society of the Regional Municipality of Waterloo v. R.C.,
2009 ONCA 840.
44
Hinchey, [1996], 3 S.C.R. 1128, the Court after noting that the trial judge
had referred to one juror as a "lunkhead" and suggested that another may be
"a bitter man", concluded that the “proceedings were more in the nature of
an ordeal than a trial.”21
$ In R. v. Sherry, [1996] 3 S.C.R. 602, the accused was charged with
dangerous driving. The accused did not testify but did call a witness (Mr.
Clause) who claimed to be the driver of the motor vehicle. In crossexamination Crown counsel said: “Mr. Clause, you are a liar, aren’t you?”
The trial judge intervened and asked defence counsel to review the Criminal
Code’s perjury provisions with his witness. The Ontario Court of Appeal
(Doherty, J.A. dissenting, 103 C.C.C. (3d) 276) concluded the trial judge’s
comments indicated he thought the witness was lying and that this created an
“apprehension of bias.”
$ The Supreme Court of Canada overturned the Court of Appeal and
reinstated the conviction. In an oral judgment the Court stated:
Also see R. v. Reiz, 2008 CarswellOnt 353; [2008] O.J. No. 2371 (S.C.J.), in which a
conviction was set aside based upon the trial judge’s intervention in the Crown’s case. In
that case, the appeal court judge noted:
21
In summary, I am of the view that, during the course of the Crown's case, the trial
judge usurped the role of prosecutor to such a degree that he effectively
eliminated the Assistant Crown Attorney from any meaningful participation in the
trial process. As the foregoing examples make plain, the trial judge, in the course
of his extensive examination of the arresting officer, asked questions directed to
adducing evidence of each and every element of the offence…
45
It is essential that the trial judge ensure that the trial is fair and an
appearance of unfairness be avoided. In this case, however, for the
reasons of Doherty J.A. dissenting, we agree with the appellant that
the learned trial judge did not pre-judge or appear to pre-judge
the credibility of the witness, Clause. Moreover, the respondent was
not impeded from making full answer and defence.
$ In summary, there is nothing wrong with us asking questions or
intervening in the trial process when warranted. However, we must be
careful not to intervene so excessively or in a manner that we create the
appearance of taking sides or lacking impartiality.22
$ Another potential difficulty involves those instances in which we have
heard a pre-trial argument or in some other manner we have had prior
involvement with the case or the parties appearing before us.
PRIOR INVOLVEMENT IN THE CASE
$ In R. v. Werner (2005), 205 C.C.C. (3d) 556 (N.W.T.C.A.), the Court of
Appeal noted that “there is no principle of law that says an accused may not
See for instance, R. v. Kaminsky, 2008 CarswellAlta 787; [2008] A.J. No. 639 (C.A.),
in which the trial judge’s use of the word “we” in several questions she asked a witness
was considered, but found not to have established a reasonable apprehension of bias. In
addition, consider R. v. Camardi, [2008] O.J. No. 3562 (S.C.). In that case, the trial
judge during a witnesses’ (Mario Camardi) testimony indicated that “somebody needs
legal counsel. I'm going to stand down for a moment.” On appeal, the conviction entered
by the trial judge was set aside. The appeal court judge concluded that: “Declaring that
Mario Camardi needed legal counsel in the midst of his examination in chief raises a
genuine apprehension that the trial judge had determined by that early point in his
testimony, that Mario Camardi was not to be believed. It is well established that trial
judges should not make declarations, as this trial judge did, about the credibility of
witnesses during the presentation of evidence: R. v. Hossu (1992), 167 C.C.C. (3d) 344
(Ont. C.A.); R. v. D'Souza (2004), 188 C.C.C. (3d) 386 (Ont. C.A.).” Also see R. v.
Corbett, 2009 ABQB 619.
22
46
be tried more than once before the same judge. That applies equally to
situations where an accused appears as a witness in some earlier proceeding.
It also applies to situations where an accused's credibility has been found
wanting on a previous occasion.” Perell makes this point in the following
manner:
…previous involvement in a matter does not inevitably ground
disqualification. Disqualification depends upon the nature and the
extent of the prior involvement. Standing alone, that a trial judge has
become familiar with a matter because of some involvement in
interlocutory motions or because of a bifurcated hearing or because
the matter has been assigned to him or her under case management
rules does not give rise to a reasonable apprehension of bias and, for
disqualification, it would have to be shown that the judge is no longer
open-minded or capable of being persuaded.23
$ In R. v. Pheasant, [2001] G.S.T.C. 9 (Ont. C.J.), it was pointed out that
“disqualification is required where a judicial officer has made a finding of
fact or statement in a legal proceeding from which it can reasonably be
inferred that he or she has arrived at some conclusion on such issues as the
guilt or innocence of the accused, or the credibility of important witnesses
who may be required to testify at subsequent trial proceedings.” However,
in R. v. Novak, (1995), 59 B.C.A.C. 152 (C.A.), it was held that the “fact
that a trial judge has ruled adversely in a previous case on the credibility of
either a defence witness or the accused does not necessarily result in a
23
Paul Perell, The Disqualification of Judges and Judgments on the Grounds of Bias or
Reasonable Apprehension of Bias (2004), 29 The Advocates’ Quarterly 102, at page 114.
47
reasonable apprehension of bias. Something more is required showing a
predisposition by the adjudicator with respect to the accused's credibility,
such as to amount to pre-judgment of the result of the second hearing.” In
R. v. Riggs, [2007] N.J. No. 302 (P.C.), Judge Porter pointed out that
“having heard some evidence of another matter, unrelated to the matter set
for trial, does not require a Judge to recuse him or herself.” Similarly, in R.
v. Heisinger, [2007] N.W.T.J. No. 72 (T.C.), it was held that it is “clear”
that involvement in prior cases is not a basis, standing alone, for a trial judge
to recuse her or himself:
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. Prior appearances will not in and of
themselves require a judge to recuse herself. As the Alberta Court of
Appeal stated in R. v. Bolt, [1995] A.J. No. 22, at para. 2:
We are not satisfied that the comments of the learned trial judge
on a previous appearance of the appellant, nor his rejection of
the evidence of the appellant on another occasion combined
with the questioning of the accused in this trial, constitute an
appearance of bias. 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. Unless real bias can be shown,
48
such prior contact is not a factor in determining an appearance
of bias.24
$ In Newfoundland and Labrador (Director of Child, Youth and Family
Services) v. Thorne, [2007] N.J. No. 414 (P.C.), the father of a child, who
was subject to a child apprehension application, asked the application
judge to recuse himself. Judge Porter described the basis of the request as
follows:
The applicant seeks recusal, based on the fact that I have heard two
bail hearings and sentencing submissions twice in the past year in
relation to the applicant for criminal offences which he admitted
committing.
$ Judge Porter declined to do so. He reasoned that applications for recusal
“ought not to be part of the strategic litigation arsenal. In terms of the
accused and these children, I have not made any determinations of
credibility of either the applicant or the mother of the children, and have not
heard any evidence of which of them might be in a better situation to
provide a safe and stable environment for the children. In that context, the
In R. v. Pheasant, [2001] G.S.T.C. 9 (Ont. C.J.), it was held that “Judges who
have dealt with an accused in some earlier proceeding are not, by that fact alone,
barred from hearing the trial: R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.)
at pp. 52-53.” Also see Cominco Ltd. v. Westinghouse Canada Ltd. (1979), 18
B.C.L.R. 286 (S.C.), Mattson v. ALC Airlift Canada Inc. (1993), 18 C.P.C. (3d) 310
(B.C.S.C.), Naylor v. Investors Group Financial Services Inc., [2007] O.J. No.
3717 (S.C.J.), Rando Drugs Ltd. v. Scott (2007), 284 D.L.R. (4th) 756 (Ont. C.A.)
and R. v. Culleton, 2008 MBQB 315 (CanLII).
24
49
reasonably well informed Canadian would expect the jurist to be true to his
or her oath, and would have no reasonable apprehension of bias.”
$ In R. v. Tucker (1980), 27 Nfld. & P.E.I.R. 167 (N.L.S.C.), though in a
different context, a different conclusion was reached. In Tucker, two
accused were charged on separate informations with the same offence. In
the first trial, the co-accused (Mr. Young) was convicted and during the trial,
Mr. Tucker testified. The same trial judge was scheduled to hear the trial of
Mr. Tucker. Both counsel for the Crown and the accused asked the trial
judge to recuse himself, a request he declined to accept. Instead, he ordered
Crown counsel to appear and explain why he should not be cited for
contempt for having been a party to the recusal application. Prior to the trial
commencing, an application for prohibition was sought and granted by the
Trial Division of Supreme Court of Newfoundland. In granting the order,
Chief Justice Hickman concluded, at paragraph 12, that it “would be highly
improper for the same magistrate to hear” both cases:
In this case, where Magistrate Robert Culton had already tried and
convicted Gerald Lucien Young of the same charge as that now
pending against his accomplice, Gerald David Tucker and when it is
borne in mind that the accused gave evidence before Magistrate
Culton under the protection of the Canada Evidence Act, it is
abundantly clear it would be highly improper for the same
magistrate to hear this case. It most assuredly would not serve the
administration of justice nor would it be fair to the accused for the
same Magistrate to hear this case.
50
$ In addition, during the prohibition application, it was suggested that the
trial judge had “made a remark to the effect that his concern in having the
trial of Gerald David Tucker expedited was due to the fact that a co-accused,
one Gerald Lucien Young, was now in jail while the said Gerald David
Tucker was still running around free." Chief Justice Hickman found this
comment to be “quite unacceptable and highly improper.” He concluded
that it, standing alone, would have been sufficient for the order of
prohibition to have issued:
A judge or magistrate seized with any matter, indeed even where he is
not so seized, must not make any statement or take any action which
can conceivably suggest bias on his part. Such statement alone would
justify me in issuing the necessary order of prohibition to preclude
Magistrate Culton from trying this case.
$ In R. v. Hayes & Lowe, 2009 NLTD 114, one of the accused during a
trial pled guilty. The agreed statement of facts made reference to the coaccused’s involvement in the offence. After the trial recommenced, the
co-accused sought recusal of the trial judge. The trial judge granted the
motion.
$ A decision rendered in a pre-trial application can cause a disqualifying
conflict to arise, though not necessarily. In Marchand v. Public General
Hospital Society of Chatman (2000), 138 O.A.C. 201, the Ontario Court
51
of Appeal noted that “prejudgment” by a trial judge must lead to
disqualification:
We are of the view that no matter where a judge makes prejudgment
conclusions (whether they be characterized as comments or
statements), whether the judge makes them in open court, in
chambers, in a case management session or otherwise (outside the
court milieu), then disqualification is appropriate and necessary.
That is not to say that a judge cannot hold or express tentative
views, provided that a reasonable fully informed objective person in
the context of the circumstances prevailing would appreciate that
the judge still had an open mind on the matter in issue. A judge may
even be inclined towards a particular result part way through a
hearing, but ask questions (or make enquiries about statements) to
test the validity of a proposition or to explore whether there are
some unforseen problems or dangers which may become apparent if
the boundaries of the topic are examined.
$ In Newfoundland and Labrador (Child and youth Advocate) v.
Newfoundland and Labrador (House of Assembly), 2009 NLTD 176, the
Child and Youth Advocate applied to the Court “for a declaration that, if and
when there should be tabled in the provincial legislature a motion calling for
her removal from the office of Child and Youth Advocate, she would be
entitled to a hearing before the legislature.” In a preliminary proceeding the
following exchange occurred:
THE COURT: I’ve gone through the material and
COFFEY, Q.C.: Yes.
52
THE COURT: - it amazes me what people can find to fight about and
what you get at the end.
$ The Child and Youth Advocate asked the judge to recuse himself. The
application was dismissed. The judge concluded as follows:
After considering all of the foregoing in its overall context, after
objectively reflecting on “the judicial process and the nature of
judging” and after deliberating on the issue thoughtfully, realistically
and practically, the fair-minded observer would conclude that the
statements relied on by Mr. Coffey fall short of the cogent evidence
required to displace the fundamental presumption of judicial
impartiality. The case for disqualification has not been established.
$ In Marshall v. Marshall, [2008] N.J. No. 17 (S.C.), however, Mr. Justice
LeBlanc cautioned against ceding to such a proposition too easily:
It is also clear from the cases that a prior adverse finding of fact
and/or credibility does not necessarily give rise to a reasonable
apprehension of bias of itself when the judge is required to deal with
the parties on a later occasion. (See L.M.B. v. I.J.B. (2000), 285
A.R. 201 (Q.B.), R. v. Newbury (1985), 56 Nfld. & P.E.I.R. 269
(P.E.I.S.C.) and R. v. Bolt (1995), 162 A.R. 204 (Alta. C.A.)).
$ Mr. Justice Leblanc also noted in Marshall v. Marshall, that prior
decisions in a family law context should be considered differently (at
paragraph 15):
Finally, in the family law context, continuity with regard to judicial
decision-makers has been recognized as being beneficial in custody
and access proceedings where the best interests of children is the
paramount consideration. Unlike other judicial proceedings where
usually only the parties' interests are at stake, in child custody and
access matters a third usually silent interest must be primarily
53
considered. Judges who hear evidence form opinions and make
judgments based upon the evidence presented at that time.
Therefore, it has been held that subsequent applications for variation
are often times best heard and decided by the judge who first made
an order in the matter. (See, for example, Re. J. (G.J.W.) (2002),
332 A.R. 194 (Alta. P.C.); A.C. v. R.R., [1996] N.B.J. No. 25
(N.B.C.A.)).25
$ In R. v. Kochan (2001), 288 A.R. 33 (Q.B.), the trial judge concluded in
very broad terms that involvement in related matters will rarely result in a
requirement for a judge to recuse him or herself. At paragraph, 15, Binder J.
indicated that “it can be stated that generally a determination which does not
involve the hearing of evidence crucial to the guilt or innocence of an
accused, findings of fact based on such evidence or the assessment of
credibility of witnesses, does not, barring very rare and exceptional
circumstances, provide a basis for a finding of bias or any related Charter
breach.” A similar distinction was discussed in R. v. Kelly (2005), 214
B.C.A.C. 162, in which the British Columbia Court of Appeal stated:
The Crown points out that trial judges often are called upon to
disregard things they hear during pre-trial or mid-trial enquiries into
the admissibility of evidence (confessions for example) without it
ever being said that they become biased or that there is a basis for a
reasonable apprehension of bias. This point has some merit but it
Also see Whelan v. O’Connor, 2008 NLCA 54, Metis Child, Family and
Community Services v. A.J.M. (2008), 225 Man. R. (2d) 261 (C.A.) and Sloboda
v. Sloboda (2007), 34 R.F.L. (6th) 286 (Sask. C.A.), at paragraph 57.
25
54
seems to me that there is a substantial difference between
disregarding irrelevant or otherwise inadmissible evidence prior to
final determination of a case and rehearing the whole case after
rendering a decision intended at the time to be final. In the latter
situation I think the potential for a reasonable apprehension of bias
is greater, perhaps much greater.
$ An illustration of a case in which a prior ruling required the trial judge
to disqualify himself can be found in R. v. Nolan (1982), 1 C.C.C. (3d) 36
(Man C.A.). In Nolan, the judge ruled during a preliminary inquiry that
two statements made by the accused were inadmissible. The accused then
sought to re-elect his mode of trial and to proceed to trial before the same
judge. The Crown objected to the judge hearing the trial, but the trial
judge ruled that he was capable of conducting the trial and considering the
admissibility of the statements based upon the evidence presented during
the trial. The Manitoba Court of Appeal disagreed. A majority of the
Court of Appeal concluded that “there is a reasonable apprehension that a
judge in the same proceedings, involving the same parties, having made a
determination of an important issue, might be perceived as not being able
to approach it with a totally fresh and open mind.”
$ Another example of prior involvement in a case causing a
disqualification is R. v. Catcheway, [2000] 1 S.C.R. 838. In Catcheway,
“the trial judge, while still a practising lawyer, acted for a co-accused (who
55
was not tried before him) on a bail application, and apparently had access
to the full police report respecting the accused who would eventually
appear before him at trial." The Supreme Court of Canada accepted a joint
submission that “that the trial judge's prior involvement raised a
reasonable apprehension of bias in accordance with the well-established
jurisprudence on the issue.”
$ In R. v. Jones, 2008 NSCA 99, the Court of Appeal considered this issue
in the context of an appeal from sentence in which the accused argued that a
reasonable apprehension of bias was created because the sentencing judge
had heard a judicial interim release hearing involving a co-accused (Mr.
Bonin). In rejecting this proposition, the Court of Appeal concluded (at
paragraphs 25 and 26):
Mr. Bonin’s bail application took place more than one and one-half
years prior to the appellant’s sentencing. The sole focus of the judge
at the bail application was whether Mr. Bonin should be released from
jail pending trial. He would not have made any other findings with
respect to him. The sentencing followed the appellant’s guilty plea
and was based on the statement of facts in the respondent’s brief and
viva voce evidence to supplement it. The judge made no comments at
the sentencing hearing about credibility or the strength of the case. If
the judge remembered Mr. Bonin’s bail hearing after such a long time,
he made no mention of it or of any extraneous matters at the
appellant’s sentencing.
The case law is clear that the mere fact that a judge heard another
related matter is not sufficient to disqualify a sentencing judge. The
appellant has not met the threshold of presenting cogent or substantial
evidence required to establish a real likelihood of a reasonable
56
apprehension of bias. There was nothing but bare speculation that the
sentencing judge's prior dealing with Mr. Bonin would have had any
effect on his impartiality and ability to preside fairly and impartially
over the sentencing hearing. There is nothing requiring the
intervention of this Court.
$ In R. v. Smith, 2009 ABQB 618, after a voir dire was conducted, the
trial judge stated: “So on the result, he is found guilty of both charges.”
The trial continued and the accused was convicted. On appeal, it was held
that the trial judge’s remarks at the end of the voir dire did not cause a
reasonable apprehension of bias to occur (at paragraph 39):
It does not follow that because the trial judge, having heard all the
evidence, prepared to give a merits decision prior to hearing
submissions, that his mind was made up and closed. Judges form
impressions and come to tentative conclusions throughout a trial.
They however remain open to changing those impressions and those
tentative conclusions up to the moment that they announce their final
decision. There is no basis on this record for concluding that the trial
judge here did not follow that course. I dismiss this ground of appeal.
$ In summary, rulings in previous unrelated cases, or in a related case or
even in the same matter, will not in and by itself be a cause for
disqualification (see for instance, R. v. Cherkawi, 2010 ABQB 99). In R.
v. J.L.M.A., 2009 ABCA 344, it was pointed out, at paragraphs 14 and 15,
that “having previously expressed opinions on a relevant question of law
does not disqualify a judge for bias... Indeed, a judge is not disqualified
even if he or she has expressed or reached previously, in the same case, an
57
opinion on a topic which comes up again for decision again.” Thus, in
each instance in which it is argued that a prior ruling is a cause for
disqualification we must start with the presumption of impartiality and
apply the stringent test which is applicable to such applications.26
$ What about those cases where we have a heated exchange with the
accused?
HEATED EXCHANGES WITH THE ACCUSED
$ It has been said that we have an “obligation to be patient and treat all
before the court with courtesy” (see The Canadian Judicial Council’s Ethical
Principles For Judges, Chapter 4). However, heated exchanges can and do
occur. Exchanges between a trial judge and a witness, or the accused, can
lead to submissions that a reasonable apprehension of impartiality has arisen
or a disqualifying event has occurred. However, in R. v. Pheasant, [2001]
G.S.T.C. 9 (Ont. C.J.), it was held that where “the record as a whole does not
indicate any jeopardy to the fairness of the trial and the appearance of
26
Interestingly, the Youth Criminal justice Act, RSC 1985, in section 130 requires a judge
to recuse himself, unless the parties agree to his or her continuing to preside. It indicates
that “a youth justice court judge who, prior to an adjudication in respect of a young
person charged with an offence, examines a pre-sentence report made in respect of the
young person in connection with that offence or has, after a guilty plea or a finding of
guilt, heard submissions as to sentence and then there has been a change of plea, shall not
in any capacity conduct or continue the trial of the young person for the offence...”
58
impartiality, isolated intemperate, ‘worrisome’ or ‘troublesome’ remarks by
a presiding judge do not warrant a mistrial.”
$ In R. v. Mercer, [2003] N.J. No. 33 (S.C.), the following exchange took
place between the trial judge and the accused, during the accused’s
testimony:
THE COURT: You are being asked a question. Can you answer it or
can't you, Mr. Mercer? [loudly, at this point I threw down my pen
noisily]
MR. MERCER: I've already said that I can't answer it, My Lord. I'm
sorry. [loudly, rises from chair where he had been sitting to testify]
THE COURT: Don't say, that Mr. - - I'm taking five minutes.
[loudly, at this point I closed my desk book abruptly]
$ After this exchange, counsel for Mr. Mercer submitted that a reasonable
apprehension of bias had arisen and that the trial judge should recuse
himself. The trial judge rejected this proposition and wrote (at paragraphs
48 and 49):
Several points need to be made. To begin with, I should not have
shown the irritation that I did with respect to Mr. Mercer's answer.
(That irritation arose not from Mr. Mercer saying he didn't know
why Cabot Services had a management services contract with
Caribou; rather it arose from his saying, in effect, I can't answer the
question, Mr. Button can, but he can't be asked because he can't be
called as a witness.) As well, it would have been better had I
apologized to Mr. Mercer when I went back on the bench.
59
Nonetheless, when I returned to the bench, I clarified Mr. Mercer's
answer and things simply moved on.
To the extent Defence counsel relies on an exchange such as this as
evidence of demeanour to show a lack of impartiality, it must not be
forgotten that any trial, especially one that is lengthy and involves
many hotly disputed facts and issues, involves repeated and intense
interactions between human beings. The objective observer would
appreciate that each day all the participants bring to the courtroom
the many and varied stresses of life. In my assessment, the objective
observer, cognizant of the circumstances of the case, would not see
such a slip in demeanour as cogent evidence of a lack of judicial
impartiality (but rather would see it, as Portia said in Julius Caesar,
Act II, Scene 1, to be "but an effect of [ill] humour, which sometime
hath his hour with every man").
$ In summary, though we must strive to always be polite and courteous,
there will be times that we fail to meet this expectation and say something
to the accused or a witness that we should not have. When this arises, it
will rarely require that we recuse ourselves. A simple apology will
normally suffice. A similar approach is required when we are less than
kind to counsel.
COMMENTS TO COUNSEL
$ Rude, demeaning or improper comments to counsel can cause an
apprehension of impartiality or constitute disqualifying acts. In R. v.
Bisson (1997), 114 C.C.C. (3d) 154, the majority Quebec Court of Appeal,
per Beaudoin J.A., described why such judicial behaviour can raise an
60
apprehension of impartiality, by writing:
If the judge's comments are to such degree inappropriate,
disrespectful and impolite to one or other of the parties that they
result in a parody or a travesty of justice and an insult to the judicial
system itself, a Court of Appeal is justified in intervening, even if
the verdict appears reasonable and adequate. This results from the
superior interests of justice and the preservation of its image,
because justice may appear not to have been done, even if the final
result is fair. It is a question of safeguarding the integrity of the
judicial process itself.27
$ In Mercer, an obviously difficult trial, defence counsel asked the trial
judge to recuse himself on the following basis:
On numerous occasions, when Defence counsel has brought up
certain objections it has resulted in Defence counsel being cut off
and being yelled at in response to very standard objections.
$ The trial judge, in refusing to accede to this argument, concluded that
“quick, even sharply-worded decisions from the bench on objections to
questions” do not raise a reasonable apprehension of impartiality:
This is not accurate. I say this based on listening to the recordings of
many hours of these proceedings and from my own recollections. I
have not "cut off" Defence counsel from making her objections, of
which there have been many. What is correct is that from time to
time I have summarily dismissed objections that were clearly
without merit. Overall, in the course of a lengthy trial in which
Defence counsel has been pressing every point to the maximum ...
as is her right ... one must expect some quick, even sharply-worded
27
On appeal to the Supreme Court of Canada ([1998] 1 S.C.R. 306), the Court indicated
that on this issue it was in “substantial agreement with the reasons of the majority of the
Court of Appeal. Whatever shortcoming there may have been with regard to these matters
they would not merit a direction for a new trial.”
61
decisions from the bench on objections to questions, particularly
where the judge considers that an objection lacks merit. This does
not give rise to a reasonable apprehension of bias.
$ In R. v. Avetysan (1999), 174 Nfld. & P.E.I.R. 34 (N.L.C.A.), the
accused raised the following as a ground of appeal:
..the trial judge erred in repeatedly interrupting defence counsel in
the course of his examination of witnesses, thereby exhibiting to the
jurors a bias toward the prosecution to the unfair prejudice of the
appellants. This prejudice, counsel for the appellants claims, was
exacerbated by sarcasm heaped on the defence's case in the trial
judge's commentary on the evidence in the course of charging the
jurors.
$ The Court of Appeal, in rejecting this argument, concluded, per Wells
CJN, as follows:
While the trial would have proceeded more smoothly with fewer
judicial interruptions, and particularly fewer criticisms of defence
counsel, nevertheless the record falls far short of demonstrating that
"the fairness of the trial and the appearance of impartiality have
been affected or seriously jeopardized". The trial judge's criticisms,
though exceedingly frequent, were neither disrespectful nor
impolite. In short, none of the elements identified in Bisson, as
justifying intervention by the court of appeal, are present here.28
$ In Kelly v. Palazzo (2008), 89 O.R. (3d) 111, the Ontario Court of
Appeal points out that it “takes much more than a demonstration of
judicial impatience with counsel or even downright rudeness to dispel the
28
The decision of the majority of the Court of Appeal was set aside by the Supreme
Court of Canada ([2000] 2 S.C.R. 745), but without reference to this ground of appeal.
62
strong presumption of impartiality” (at paragraph 21):
It takes much more than a demonstration of judicial impatience with
counsel or even downright rudeness to dispel the strong
presumption of impartiality. While litigants may not appreciate that
presumption and thus may misread judicial conduct, lawyers are
expected to appreciate that presumption and, where necessary,
explain it to their clients. Baseless allegations of bias or of a
reasonable apprehension of bias founded on a perceived slight or
discourtesy that occurred during a trial, will not assist the client's
cause and do a disservice to the administration of justice.
$ If counsel indicates that they found a comment made to them by a judge
to be improper or demeaning, then the judge should apologize for having left
that impression and this should cure any apprehension of bias which may
have arisen (see Kelly v. Palazzo at paragraph 33).
$ In addition to making intemperate comments to counsel during a
proceeding, occasions arise where our previous dealings with a specific
counsel have been less than ideal.
PRIOR UNFAVORABLE DEALINGS WITH COUNSEL
$ In R. v. Forslund, [2007] B.C.J. No. 754 (S.C.), the trial judge was
asked to recuse himself because he had, nine years before, recommended
in a judgment that counsel’s actions in that earlier case should be
investigated by the Law Society. Romilly J. refused to recuse himself and
63
concluded:
In my view, the words in my judgment addressed to senior counsel
in a case nine years ago are hardly enough to demonstrate that there
is reasonable apprehension of bias on my part. I had completely
forgotten the incident until it was brought to my attention by Ms.
Bastow. As has been stated, time and time again, the law clearly
states that the apprehension of bias "must be a reasonable one, held
by reasonable and right-minded persons, applying themselves to the
question and obtaining thereon the required information"
(Committee for Justice and Liberty, at 394). De Grandpré J. added
in the next paragraph at 395, that "the grounds for this apprehension
must, however, be substantial". In my view, no reasonable
apprehension of bias has been established here.
$ As can be seen, the mere fact that a judge has had prior dealings with
counsel that are of a negative nature is not sufficient to require a recusal.
However, a personal relationship, with counsel, the accused or a witness,
depending on the nature and extent of it, can constitute a basis for
disqualification.
PRIOR PERSONAL INVOLVEMENT WITH A WITNESS, A PARTY
OR COUNSEL
$ The Canadian Judicial Council’s Ethical Principles For Judges, points
out that “circumstances must be avoided in which a reasonable, fair minded
and informed person would have a reasoned suspicion that the judge is not
impartial,” but a “judge should not withdraw unnecessarily as to do so adds
64
to the burden of his or her colleagues and contributes to delay in the courts.”
These words are particularly apt when it is suggested we should recuse
ourselves because we know a witness. In R. v. Toutissani, [2007] O.J. No.
4364 (C.A.), for instance, the trial judge declared a mistrial and recused
himself on his own motion because “he had previously written letters of
reference for the court reporter” who had testified as a witness during the
trial. The Ontario Court of Appeal set aside the declaration of a mistrial. It
held that there was no conflict or any reasonable apprehension of bias. This
decision appears eminently sensible and correct, as the court reporter’s
evidence in Toutissani was not contested. Also see R. v. Quinn (2006), 209
C.C.C. (3d) 278 (B.C.C.A.).
$ The Canadian Judicial Council makes the following suggestions:
(a) A judge who was in private practice should not sit on any case in
which the judge or the judge’s former firm was directly involved as
either counsel of record or in any other capacity before the judge’s
appointment.
(b) Where the judge practised for government or legal aid, guideline
(a) cannot be applied strictly. One sensible approach is not to sit on
cases commenced in the particular local office prior to the judge’s
appointment.
(c) With respect to the judge’s former law partners, or associates and
former clients, the traditional approach is to use a “cooling off
period,” often established by local tradition at 2, 3 or 5 years and in
any event at least as long as there is any indebtedness between the
65
firm and the judge and subject to guideline (a) above concerning
former clients.
(d) With respect to friends or relatives who are lawyers, the general
rule relating to conflicts of interest applies, i.e., that the judge should
not sit where a reasonable, fair minded and informed person would
have a reasoned suspicion that the judge would not be impartial.
Related issues, requiring similar approaches, may arise in relation to
overtures to the judge while still on the bench for post-judicial
employment. Such overtures may come from law firms or prospective
employers. There is a risk that the judge’s self-Interest and duty would
appear to conflict in the eyes of a reasonable, fair minded and
informed person considering the matter. A judge should examine such
overtures in this light. It should also be remembered that the conduct
of former judges may affect public perception of the judiciary.
$ In Boardwalk Reit LLP v. Edmonton (City), [2008] A.J. No. 515, the
Alberta Court of Appeal provided the following examples in which
knowledge of a witness was not sufficient for a judge to recuse him or
herself (at paragraph 45):
(a) An important witness works for the complainant, which used to
be an important client of the judge before he was appointed to the
Bench, which witness instructed the judge on some files some years
before: R. v. Quinn, 2006 BCCA 255, 227 B.C.A.C. 83, 209 C.C.C.
(3d) 278, 291, 292, 294.
(b) The witness is the son and brother of lawyers who had been the
judge's former law partners, even his mentor. See the decision of the
Privy Council in Man O'War Stn. v. Auckland (City) (#1), supra.
(c) Important controversial expert evidence will be given by a
professional person with whom over the years the judge has had
some professional and social contact: see Ibrahim v. Giuffre (2000)
66
258 A.R. 319, 46 C.P.C. (4th) 114, affd. and adopted (2000) 255
A.R. 388 (C.A.).
(d) An important expert witness lives two blocks from the trial
judge, and the trial judge once chatted socially with him: see Agar
v. Morgan, [2003] B.C.J. No. 939, 2003 BCSC 628 (Apr. 24). Cf.
Halliburton Enr. Services v. Smith Int. (N. Sea) [2006] EWCA
Civ. 1599, [2007] Bus. L.R. 46.
(e) The judge has doubts about the credibility of evidence about a
certain lawyer, partly because the judge had known that lawyer
professionally for 35 years: R. v. Mohan (1994) 162 A.R. 6, 12
(paras. 30-32), leave den. [1995] S.C.C.A. No. 23, (1995) 190 N.R.
399 (S.C.C.).
(f) There is evidence about certain conduct of a lawyer, and the
judge can make fact findings about that lawyer, even if previously
there had been a somewhat acrimonious split between that lawyer
and a law firm in which the trial judge was then a partner. See
Amethyst Petr. v. Primrose Drilling Ventures, 2007 ABCA 355,
[2007] A.R. Uned. 601, [2007] A.J. No. 1242 (Nov. 19), leave den.
Mar. 27, 2008, [2008] S.C.C.A. No. 30 (S.C.C.).
(g) A newly-appointed judge hearing a trial about and against a
retired judge of the same court (and who was a lawyer when she
was): Chaba v. Greschuk (1992) 127 A.R. 133, 134 (C.A.).
(h) A member of a statutory tribunal can finish a reserved judgment
after accepting a job with the government, even if the government is
a party to the case reserved: Eckervogt v. R., 2004 BCCA 398, 241
D.L.R. (4th) 685.
(i) A tribunal can rule on accident benefits for an injured politician,
even if one member of the panel supports a different political party:
Fletcher v. Auto. Injury Comp. App. Comm. (#1), 2004 MBCA
67
192, [2006] 3 W.W.R. 54, 190 Man. R. (2d) 277, leave den. [2005]
S.C.C.A. No. 80, (2005) 345 N.R. 196 (S.C.C.).
(j) A trial judge is a former Crown prosecutor who earlier had
prosecuted the accused whom he is now trying, for earlier different
crimes: R. v. Walker (1968) 63 W.W.R. 381 (Alta. C.A.); R. v.
Dorscheid (1991) 116 A.R. 79 (C.A.).
$ As can be seen from these precedents, a significant connection between
a judge and a witness or counsel will be necessary for a disqualifying
event to be established. However, what if we represented or prosecuted
the accused prior to our judicial appointment?
PRIOR REPRESENTATION OR PROSECUTION OF THE
ACCUSED WHEN THE TRIAL JUDGE WAS A LAWYER
$ In R. v. Dunn (1996), 136 Nfld. & P.E.I.R. 46 (P.E.I.S.C.), the accused
sought to have the trial judge recuse herself on the basis that she had
represented him in an unrelated matter prior to her appointment as a judge.
In dismissing an application for prohibition, after the trial judge had declined
to recuse herself, the superior court judge concluded that if the trial judge
“had any involvement with the particular matter coming before her, then she
is disqualified from hearing the case. In such cases there is a real likelihood
68
of bias, or a reasonable suspicion of bias. However, the facts of this case do
not support such a conclusion.”29
$ In R. v. Dorscheid (1991), 116 A.R. 79 (Alta. C.A.), the accused sought
to have a conviction set aside on the basis that the trial judge had, when
acting as a Crown counsel, prosecuted him in an unrelated matter. In
dismissing the appeal, the Alberta Court of Appeal concluded that this
prior involvement was "... not enough to give the reasonable informed
bystander a reasonable apprehension of bias." Similarly, in R. v. Taylor
(2006), 247 N.S.R. (2d) 382 (S.C.), it was held that prior representation of
the accused and his spouse by a justice of the peace who issued a search
warrant did not raise a reasonable apprehension of bias. Also see R. v.
Moosomin, [2008] S.J. No. 811 (C.A.)).
$ Finally, in Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R.
851, at paragraphs 4 and 5, Bastarche J., indicated that “no recusal
application could be founded on a relationship of advocate unless the
advocacy was regarding the case to be heard.” He concluded that “a real
predisposition to a particular result” must be shown and the applicant must
29
Affirmed by the Prince Edward Island Court of Appeal. See (1996), 140 Nfld. &
P.E.I.R. 269.
69
“show wrongful or inappropriate declarations showing a state of mind that
sways judgment in order to succeed.”
$ What if we are related to counsel?
FAMILY CONNECTION TO COUNSEL
$ In Makowsky v. John Doe, [2007] B.C.J. No 1809 (S.C.), the trial
judge was asked to recuse himself because the law firm who represented
one of the defendants employed his son. In rejecting the application, the
trial judge concluded that an “informed, reasonable and right minded
person viewing the matter realistically and practically, and having thought
through the matter, would not conclude that it is more likely than not that I
would consciously or unconsciously not decide the case fairly because my
son is associated with one of the law firms.”30
$ In G.W.L. Properties Ltd. v. W.R. Grace & Co. of Canada Ltd. (1992),
74 B.C.L.R. (2d) 283, the British Columbia Court of Appeal indicated that
in British Columbia the courts “have drawn the line at children appearing
before parents on matters of importance”, but that this rule does not extend
to cause, for instance, a judge to recuse her or himself because a “brother
30
Also see Frambordeaux Developments Inc. v. Romandale Farms Ltd., [2007] O.J.
No. 4483 (S.C.J.) and Marshall v. Juba-Ruffolo, [2007] B.C.J. No. 1962 (S.C.).
70
or sister (or parent, child, nephew or niece) is a partner in a large firm”
which is involved in a case before that judge.
$ There are times when judges are tempted to contact the superior of a
particular counsel to complain about their contact. Normally, we should
resist this temptation entirely.
COMMUNICATION WITH COUNSEL’S SUPERIORS
$ An example of a judge failing to resist this temptation can be found in
the case of R. v. Curragh Inc., [1997] 1 S.C.R. 537. In Curragh, the trial
judge had contacted the Attorney-General’s office to express his
“displeasure with the manner in which the Crown attorney was
conducting” a trial the judge was hearing. The trial judge recommended
that he be removed from the case and said that if he were not he would
take steps "to secure that end." As a result, the Crown asked the trial
judge to recuse himself. Surprisingly, only a majority of the Supreme
Court of Canada concluded that the trial judge’s actions constituted a
disqualifying event.
$ Another possible source of disqualifying conflict involves those cases
where an accused person pleads guilty, facts are referred to, but a change
of plea to not guilty is allowed. Can the judge who heard the facts after
71
the plea of guilty was entered hear the trial after the plea has been changed
to not guilty?
CHANGES OF PLEA
$ In R. v. da Silva (1985), 18 C.C.C. (3d) 102 (Ont. C.A.), the trial judge
“struck” the plea of guilty that had been entered by the accused after a
dispute over the agreed facts arose. A trial date was set and counsel for
the accused asked the trial judge to recuse himself. The trial judge
declined to do so. In granting an order of prohibition, the Ontario Court of
Appeal concluded that it “was preferable that the matter be referred to
another trier of fact.”
$ In R. v. Mitchell, [2002] B.C.J. No. 1378 (S.C.), a different approach
was taken. In that case, the trial judge also struck a guilty plea after a
sentence hearing had been commenced. When asked to recuse himself
from conducting the trial, he concluded that: “I recognize that the Crown
would prefer that I not be the presiding judge at the upcoming trial. My
conclusion is that the concern expressed by the Crown does not meet the
test articulated by the Supreme Court of Canada in Committee for Justice
and Liberty.”
72
$ As a result, having heard some of the alleged facts after a plea of guilty
has been entered and a change of plea allowed is not in and by itself cause
for disqualification at the trial.
$ What about unfavorable comments concerning a racial or ethnic group?
COMMENTS CONCERNING RACIAL OR ETHNIC GROUPS
$ In Foto v. Jones (1974), 45 D.L.R. (3d) 43 (Ont. C.A.), a reasonable
apprehension of bias was found to exist based upon the trial judge having
said that he did not believe the evidence of the plaintiff and that: "I regret
to have to say that too many newcomers to our country have as yet not
learned the necessity of speaking the whole truth…They have not learned
that frankness is essential to our system of law and justice."
$ In R. v. S.(R.D.), [1997] 3 S.C.R. 484, the trial judge’s remarks
(concerning racism and police officers) were described as “worrisome and
come very close to the line”, but not sufficient to establish a reasonable
apprehension of bias.
REFERRING TO OUR OWN PERSONAL EXPERIENCES AND
CONCERNS
$ Obviously, it is important that we refrain as trial judges from allowing our
own personal experiences and concerns to improperly intrude into the trial
process. An example of the difficulties which can arise when we fail to do
73
so, is illustrated by the judgement of the Alberta Court of Appeal in R. v.
Kaminsky, 2008 CarswellAlta 187; [2008] A.J. No. 639. In Kaminsky, the
accused was convicted of a number of offences including possession of a
controlled substance for the purpose of trafficking and breach of
recognizance. During the trial, the trial judge asked an expert witness a
number of questions which included the word “we” (for instance, she asked
the expert: “How come if it [drug trafficking] is such a problem we are not
stopping it?”). The Court of Appeal held that that these questions did not
raise a reasonable apprehension of bias because the trial judge’s “use of ‘we’
was not first person, but societal in nature.”
$ The cause for concern occurred during the sentence hearing. During that
hearing, the trial judge made a number of comments expressing her view
about the loss of enjoyment caused by extensive drug dealing in the area and
the negative effect it had generally and upon her personally. On appeal, the
conviction was set side after the Alberta Court of Appeal concluded that the
trial judge’s comments during the sentence hearing had created a reasonable
apprehension of bias which “tainted” the verdict and rendered it “void.” The
Court of Appeal concluded that a trial judge must be careful not to allow
references to her or his personal experiences or concerns “to cloud the
appearance of impartiality” (at paragraph 22):
74
The trial judge fell short of conducting a dispassionate deliberate
investigation into the facts, but rather allowed her personal experience
and concerns to cloud the appearance of impartiality. In this case, the
nature and character of drug dealing in the area where the appellant
was found were critical to the expert evidence accepted by the trial
judge in determining whether the drugs in his possession were for
trafficking or for personal use. Her interventions and comments,
including her discussion of the very negative impacts upon her
personally of drug trafficking in this area would lead a reasonable and
informed observer to conclude that she was neither neutral nor
impartial when considering the activities alleged of the appellant in
this area of the city. The appellant has legitimate concerns as to
fairness, and the appearance thereof, in the circumstances of this
case.31
$ Having set out a myriad of examples which could, though usually do not
lead to a disqualifying conflict, what are our options when we conclude that
such a conflict does exist?
APPEALS
$ In R. v. G.W. [1992] 2 S.C.R. 597, the Supreme Court of Canada held that
an appeal court did not have the authority to consider the fitness of sentence
on its own motion. The Court also made the following comments
concerning whether doing so raised a reasonable apprehension of bias:
31
The Alberta Court of Appeal does not appear to have considered that since its
conclusion was that the trial judge’s comments during the sentence hearing rather than
the trial established the reasonable apprehension of bias or disqualifying event, the
appropriate remedy should have been limited to reviewing the sentence imposed to
determine if it should be reviewed as a result of the trial judge’s comments. In addition,
it is difficult to see how the trial judge’s comments tainted the convictions for the
Criminal Code offences since the primary issue at trial was, as the Court of Appeal
described it, “whether to convict for possession or for trafficking.”
75
The SCC also concluded that the Court of Appeal’s judgment raised a
reasonable apprehension of bias because the panel had expressed
concerns about the appropriateness of the sentence that had been
imposed in the absence of argument and that therefore “the
respondent’s application for leave to appeal the sentence should
proceed before a differently constituted panel of the Court of Appeal”.
(at p. 15) The Supreme Court of Canada also cautioned against
Courts of Appeal “inviting” counsel, on conviction appeals, to appeal
from sentence (“only in the rarest of circumstances”). The court
concluded that Courts of Appeal should refrain from doing so unless
“...the sentence is so clearly unreasonable or demonstrably unfit as to
indicate possible oversight on the part of counsel or an unrepresented
accused”. (at p. 12).
$ In R. v. J.L.M.A., 2009 ABCA 344, three members of a panel of the Court
of Appeal were asked to recuse themselves. The issue was described by the
Court of Appeal as follows:
So an important legal question is whether an appellate judge is
disqualified by bias from sitting on an appeal panel because he or she
previously expressed an opinion in a previous unrelated appeal on
some topic likely to arise in the present appeal, even the proper law of
precedent. Is it relevant also how he or she expressed that opinion?
$ In Brace and Cull v. Snow, 2010 NLCA 16, an application was made to
have a member of the Court of Appeal recuse himself. Chief Justice Green
described the nature of the application as follows:
At the commencement of the hearing, counsel for the appellants,
David Brace and Gail Curl, asked me to consider whether I ought to
recuse myself from hearing the matter because in 2009 I heard an
application by Mr. Snow for leave to appeal a decision of the Trial
Division staying judgment pending appeal of the matter that is the
subject of the current appeal. On that occasion I granted leave to
appeal. See Snow v. Brace and Curl, 2009 NLCA 30. The appeal
itself resulted in the stay being set aside. See Snow v. Brace and
76
Curl, 2009 NLCA 31. I did not sit as a member of the panel on the
appeal respecting the stay.
$ In rejecting the application, Green, C.J.N., held:
After considering the matter, I decided not to recuse myself. I did not
decide the actual appeal against Mr. Brace and Ms. Curl. I merely
granted leave that the appeal be heard. I made no findings with respect
to credibility on the leave application. The references I made to
credibility issues were for the purpose of identifying the fact that
those issues were being challenged on the ultimate appeal and that the
judge who granted the stay did not, in considering the appropriateness
of granting a stay, distinguish between the relevance of those issues
and other issues of credibility that had been engaged on evidence that
had been led on the stay application itself. The latter credibility issues
were arguably relevant to the decision as to whether to grant a stay. I
did not express any view as to Mr. Brace’s or Ms. Curl’s credibility.
WHAT ARE OUR OPTIONS?
$ If the argument is raised before trial, then we must recuse ourselves if the
motion is accepted as valid. If it occurs during the trial, we must declare a
mistrial if the argument is accepted (see R. v. Toutissani, [2007] O.J. No.
4364 (C.A.)). In Curragh, the Supreme Court of Canada concluded that
where a “reasonable apprehension of bias is demonstrated the trial judge has
no further jurisdiction in the proceedings and there is no alternative to a new
trial.”
77
$ If it is raised before us after a conviction is entered, then we must
consider reopening the trial. If raised on appeal, then the appellate court will
determine if the trial judge’s decision should be set aside.
$ In R. v. S.(R.D.), [1997] 3 S.C.R. 484, the Supreme Court of Canada
summarized the remedies applicable, at paragraph 99, as follows:
If actual or apprehended bias arises from a judge's words or conduct,
then the judge has exceeded his or her jurisdiction. See Curragh,
supra, at para. 5; Gushman, supra, at para. 28. This excess of
jurisdiction can be remedied by an application to the presiding judge
for disqualification if the proceedings are still underway, or by
appellate review of the judge's decision. In the context of appellate
review, it has recently been held that a "properly drawn conclusion
that there is a reasonable apprehension of bias will ordinarily lead
inexorably to the decision that a new trial must be held".
CONCLUSION
$ As has been seen, potential disqualify events can arise in numerous
situations. However, the core principles apply every time such a proposition
is raised and they indicate that it is only in very limited circumstances that
disqualification is necessary. The principles relating to the determination of
whether a disqualifying conflict of interest has arisen can be summarized as
follows:
78
1. impartiality is the core attribute of the Canadian judiciary. Thus,
trials must both be fair and appear to be fair to an informed and
reasonable observer;
2. impartiality means that in a particular case, a reasonable observer
would conclude that a judge's mind is closed or at least strongly
resistant to persuasion, despite the evidence yet to be adduced and/or
the submissions yet to be made in that specific case;
3. there is a presumption that judges will carry out their oath of office.
Thus, the threshold for a finding of real or perceived bias or that a
disqualifying event has occurred is extremely high. Though this
presumption can be rebutted, it requires substantial evidence to do so.
A real likelihood or probability is necessary, not a mere suspicion;
4. the burden of proof is on the party alleging that a disqualifying
event has occurred. The onus of proof is one of a balance of
probabilities;
5. the test to be applied is an objective one and it is not based on the
views of the litigants. The reasonable person being queried on the
issue must be an informed person, with knowledge of all the relevant
circumstances, including the traditions of integrity and impartiality
79
that form part of the background and essence of the Canadian
judiciary; and
6. in each case in which this issue is raised, the judge must ask him
or herself: what would an informed person, viewing the matter
realistically and practically conclude? Would she or he think that it
is more likely than not that I would not decide fairly? 32
Also see Judge Porter’s summary in R. v. Riggs, [2007] N.J. No. 302 (P.C.) and that of
the British Columbia Court of Appeal in Taylor Ventures Ltd. (Trustee of) v. Taylor
(2005), 49 B.C.L.R. (4th) 134, at paragraph 7.
32