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Bias

R v Richards (Ont CA, 2017)

Here Watt JA canvasses applicable to the determination of judicial bias:
[42] No serious dispute arises about the principles that control our decision in this case. A brief reminder will suffice.

[43] First, there is a presumption of judicial integrity, that is to say, that judges will carry out their oath of office: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 117. This presumption is one of the fundamental reasons why the threshold for a successful allegation of actual or apprehended judicial bias is high: S. (R.D.), at para. 117.

[44] Second, this presumption of judicial integrity does not relieve a judge from their sworn duty to be impartial: S. (R.D.), at para. 117.

[45] Third, although the threshold for a successful claim of actual or apprehended bias is high, it is not insurmountable. The presumption of judicial integrity can be displaced by cogent evidence that demonstrates that something the judge did or said gives rise to a reasonable apprehension of bias: S. (R.D.), at para. 117.

[46] Fourth, in accordance with general principle, the onus of rebutting the presumption of integrity, or put another way, of demonstrating bias, rests upon the party who alleges it, in this case, the appellant: S. (R.D.), at para. 114.

[47] Fifth, allegations of reasonable apprehension of bias, thus inquiries into whether such a claim has been made out, are entirely fact-specific. It follows that it is simply not possible to examine another case and conclude that the determination of the presence or absence of bias in that case must apply to and control the disposition of the case under consideration: S. (R.D.), at para. 136.

[48] Sixth, the apprehension of bias must be a reasonable one, 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.

[49] Inherent in this test is a two-fold objective element. The person considering the alleged bias must be reasonable. And the apprehension of bias must also be reasonable in all the circumstances of the case. The reasonable person must be informed, impressed with the knowledge of all the circumstances, including the traditions of integrity and impartiality that form a part of the background and cognizant of the fact that impartiality is one of the duties judges swear to uphold: S. (R.D.), at para. 111.

[50] Finally, stereotypical reasoning may give rise to a reasonable apprehension of bias: S. (R.D.), at para. 6, Major J. dissenting.

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