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Bias

R v Nero (Ont CA, 2016)

In this case, Canada's Lord Denning - Watt JA - sets out the principles applicable to finding bias on the part of a trial judge:
[29] First, the apprehension of bias must be reasonable, held by reasonable and right-minded persons applying themselves to the question and obtaining the required information about it. The test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude”: Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394; R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 111; Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, at para. 60.

[30] Second, the standard refers to an apprehension of bias that rests on serious grounds in light of the strong presumption of judicial impartiality: Committee for Justice and Liberty, at p. 395; Wewaykum, at para. 76. The grounds for the apprehension must be substantial: R.D.S., at para. 112.

[31] Third, as a necessary consequence of the presumption of judicial impartiality, the onus of demonstrating bias lies with the party who alleges its existence: R.D.S., at para. 114. That party must prove bias on a balance of probabilities: Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 (C.A.), at para. 131

[32] Fourth, the inquiry into a reasonable apprehension of bias is fact-specific. Said in another way, whether a reasonable apprehension of bias arises, all the more so whether it has been established, depends entirely on the circumstances of the case under consideration: R.D.S., at para. 114.

[33] Finally, at least as a general rule, allegations of bias or a reasonable apprehension of bias should be advanced as soon as it is reasonably possible to do so: R. v. Curragh Inc., 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537, at para. 11.

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