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Bias - Counsel-Judge Communication. Li v. Canada (Citizenship and Immigration)
In Li v. Canada (Citizenship and Immigration) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal, here from a court 'direction' (not from an 'order') that "the appellant’s motion for a stay of removal was premature because travel documents for the appellant were not ready". 'Directions' can't be appealed, thus raising a lack of jurisdiction argument and respondent countered with a Rule 74 motion to 'remove document from the court file', which - in conjunction with the Federal Court's 'plenary' authority under Constitution Act, 1867 s.101 - serves in some Federal Court contexts as a de facto quashing of an appeal.
Here Stratas JA questions an operative distinction between 'actual bias' and 'apprehension of bias' in the context of an exception to a statutory IRPA [s.74(d)] bar on appeals to the FCA without certification of the questions:[15] Next, the appellant alleges that by acting on a letter sent by counsel for the respondents and not waiting for the appellant to respond, the judge created a reasonable apprehension of bias in favour of the respondents.
[16] Actual bias is a judge-made exception to the statutory bars against appeals in the Immigration and Refugee Protection Act. I have not been provided with a case that suggests that an apprehension of bias, as opposed to actual bias, is an exception to the statutory bars and I am aware of none. And it may be that an apprehension of bias does not implicate the rule of law as seriously as an allegation of actual bias and so a judge-made exception should not be recognized. The issue need not be decided here.
[17] In any event, the appellant is making an allegation of procedural fairness, which is not an exception to the statutory bars, and is labelling it as a "“reasonable apprehension of bias”". In the circumstances of this case, this is mere wordplay. When assessing allegations, this Court fastens only onto matters of substance: JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at paras. 49-50.
[18] Some of the appellant’s submissions come close to and perhaps smack of an allegation of actual bias on the part of the Federal Court. I am sure that the appellant does not mean to allege any actual bias. To be clear, allegations of bias should never be made lightly: Es-Sayyid v. Canada (Public Safety and Emergency Preparedness), 2012 FCA 59, [2013] 4 F.C.R. 3. There is a strong presumption that judges will carry out their duties properly, and with integrity: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, 141 D.L.R. (4th) 193 at para. 32 per L’Heureux-Dubé J. and McLachlin J. (as she then was), and at paras. 116–117 per Major J.; R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, per Abella J.; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, per McLachlin C.J. This presumption can be rebutted only by a "“serious”" and "“substantial”" demonstration made by "“convincing evidence”": Wewaykum at para. 76; S. (R.D.) at para. 32; Horne v. Canada (MCI), 2010 FCA 337, 414 N.R. 97 at para. 5. This case falls well short of the mark.
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