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Bias Judges - Bias Laver v. Swrjeski (Ont CA, 2014) In this civil case the Court of Appeal took the oppourtunity to expound on the law of judicial bias. The context in which the issue arose were comments made by the judge during the course of an Application hearing respecting anxiety that he had making findings of credibility respecting police officers. [17] The issue of reasonable apprehension of bias was most recently discussed and considered by this court in Martin v. Sansome, 2014 ONCA 14 (CanLII), 2014 ONCA 14. In that case, the context was interventions by a trial judge during the examination of witnesses. This court set out the legal framework for the assessment of bias in the following passage at paras. 31-33:[31] Bias is a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial: Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 58. The burden of establishing bias is on the party arguing that it exists. The test, found in Wewaykum, at para. 60, is long-established:.[18] In Martin v. Sansome, the appellant was a self-represented litigant. The trial judge tried to help him with procedural issues, but was apparently impatient and frustrated with the slow progress of the trial. On appeal, the court concluded, at para. 39, that, although some of the trial judge’s comments could create the impression of favouring the respondent when viewed in isolation, when the entire record was viewed as a whole, the court was not satisfied that “a reasonable person would have the impression that the trial judge was predisposed to decide the issues before him in favour of the respondent.”[W]hat 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[?][32] There is a strong presumption of judicial impartiality. The threshold is high for finding an apprehension of bias: Wewaykum, at para. 76. |
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