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 WhatProcedure Should be Followed………………………………… 26

When Should the Issue Be Raised…………………………….. 32

Some Examples of Common Situations in Which RecusalApplications 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 ExperiencesAnd 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.

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

2

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

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))).”

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hold 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.

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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

$ The Canadian Judicial Council’s Ethical Principles For Judges, indicates

the following (see Chapter 6) as regards “conflicts of interest” for judges:

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.

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1. Judges should disqualify themselves in any case in which theybelieve they will be unable to judge impartially.

2. Judges should disqualify themselves in any case in which theybelieve that a reasonable, fair minded and informed person wouldhave a reasoned suspicion of conflict between a judge’s personalinterest (or that of a judge’s immediate family or close friends orassociates) and a judge’s duty.

3. Disqualification is not appropriate if: (a) the matter giving riseto the perception of a possibility of conflict is trifling or wouldnot support a plausible argument in favour of disqualification,or (b) no other tribunal can be constituted to deal with the caseor, because of urgent circumstances, failure to act could lead toa 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

Hospital Society of Chatman (2000), 138 O.A.C. 201, the Ontario Court

of Appeal set out the following as examples:

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."

6

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 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

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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 should not participate in a case where they or a family member have a material or substantial stake in the outcome.5

5 Also see Beverly Smith, Professional Conduct for Lawyers and Judges (3d., ed., Maritime Law Book, 2007).

8

$ 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,

[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

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.

8 See Philip Bryden, Legal Principles Governing Disqualification of Judges (2003), 82 Canadian Bar Review 555, at page 559.

9

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

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,

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.

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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 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

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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.”

$ 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

12

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 andhis responsibility as a judge to be impartial, a possibility that suchconflict may cause him to be biased in certain types of dispute or tolean towards one party or the other in some particular case he is todetermine, the Rule of Law is at risk. To the extent that people areaware of such conflict, popular faith in the integrity of the judiciary isat risk too.10

10 See Gordon Borrie, Judicial Conflicts of Interest in Britain, The American Journal of Comparative Law, Vol. 18, No. 4 (Autumn, 1970), page 697.

13

$ 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

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

11In 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.”

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.”

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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

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

15

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

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

16

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?

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

17

‘impartial’…connotes absence of bias, actual or perceived.” In Arsenault-

Cameron 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.

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 13 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. 

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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 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

19

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

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.

20

$ 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).

$ 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

21

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

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.”

22

$ 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 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

23

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

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

24

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” (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

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

25

$ 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

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

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.

26

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

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

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.).

27

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 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

28

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 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 cross-

examination of that witness by the accused’s counsel had been completed.

29

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 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

30

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.

$ 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

31

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

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 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.

32

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

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

33

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 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).

34

(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.

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.

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.).

35

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

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

36

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

$ 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

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 a witness prior to cross-examination being conducted by opposing counsel. It is especially inappropriate because it may effectively undermine the impact of cross-examination by alerting the witness to certain issues.”

37

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

(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.

19 For an example, see R. v. Gunn, 2009 SKQB 57 (CanLII).

38

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 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.

39

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 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

40

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…

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

41

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 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 cross-examination;

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 cross-

20 Also see Children's Aid Society of the Regional Municipality of  Waterloo v. R.C.,  2009 ONCA 840.

42

examination 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.

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 cross-

examination Crown counsel said: “Mr. Clause, you are a liar, aren’t you?”

21 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:

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…

43

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:

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-judgethe 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

22 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.

44

$ 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

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

Corbett, 2009 ABQB 619.

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.

45

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

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:

46

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, 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 24 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).

47

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

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

48

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.

$ 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 co-

accused’s involvement in the offence. After the trial recommenced, the

co-accused sought recusal of the trial judge. The trial judge granted the

motion.

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$ 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

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:

50

THE COURT: I’ve gone through the material and

COFFEY, Q.C.: Yes.

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

51

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 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

25 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.

52

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 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,

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“the trial judge, while still a practising lawyer, acted for a co-accused (who

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

54

appellant has not met the threshold of presenting cogent or substantial evidence required to establish a real likelihood of a reasonable 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

55

even if he or she has expressed or reached previously, in the same case, an

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...”

56

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.

57

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

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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.”

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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.

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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

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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

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

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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 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

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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) 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

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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 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

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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

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

29 Affirmed by the Prince Edward Island Court of Appeal. See (1996), 140 Nfld. & P.E.I.R. 269.

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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

“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

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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

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

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.).

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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

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

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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.”

$ 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

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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

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.”

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$ 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):

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

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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:

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).

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.”

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$ 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 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

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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.”

$ 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

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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:

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

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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

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

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.

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