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Bias - Favouritism. R. v. Colley
In R. v. Colley (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal in a child murder.
Here the court considers bias in the form of favoritism:[79] This alone was enough to demonstrate a reasonable apprehension of bias. However, the scenario was worsened when the trial judge addressed the matter on the fifth occasion, in open court. It was at that point that the trial judge linked his views about the appellants’ guilt to his evidentiary/Charter rulings on the pre-trial motions that were still in progress. After being told again that there would be no resolution of the case, he foreshadowed that his rulings might “produce results” in terms of the appellants’ resolve to proceed to trial. With these words, the trial judge entwined his views of the appellants’ guilt with his adjudicative function, tainting the rulings he subsequently delivered. A reasonable and informed observer would interpret these words as suggesting that the rulings might be made with the goal of encouraging guilty pleas, rather than being decided on the merits.
[80] When the trial judge addressed the appellants directly, he risked undermining their solicitor-client relationships. He offered no explanation for doing so in his reasons dismissing the recusal/mistrial application. Both appellants were represented by experienced and capable criminal defence lawyers. By-passing counsel as he did may well have left a reasonable and informed observer with the impression that defence counsel were not doing their jobs properly. It contributed to the growing appearance of unfairness of this trial.
[81] The respondent submits that, after dismissing the appellants’ mistrial and recusal applications, there were no further problematic incidents and the trial was conducted fairly. They say that any alleged shortcomings in the trial judge’s final instructions cannot be linked to what transpired weeks earlier when the trial judge encouraged guilty pleas.
[82] We agree with the proposition that the remainder of the trial was without incident. However, the appearance of fairness – and the dignity of the proceedings – had already been lost. The fact that there were no further issues could not undo the trial judge’s earlier comments. Moreover, a cloud had been cast over the trial judge’s pre-trial rulings relating to key pieces of highly inculpatory evidence.
[83] It may very well be that the trial judge saw himself as acting compassionately towards the appellants, who were both facing the potential of a first degree murder conviction. But regardless of his motivation for doing so, the trial judge’s persistence in encouraging a resolution undermined the perception of his impartiality. Looking at the entirety of the events, reasonable and informed members of the community would conclude that the trial judge would not be impartial in his dealings with the appellants, who he had already decided were “child killers”, and not “two innocent people in the jaws of the criminal justice system”.
[84] The respondent relies on R. v. Bird, [1997] O.J. No. 2074 (Gen. Div.), in which McIsaac J. wrote, at para. 7, that in applying the test for reasonable apprehension of bias, “the test is not the perception of the accused who is caught up in the criminal litigation but the impartial, detached reasonable observer who is cognizant of our legal traditions of judicial impartiality”. Although the inquiry is an objective one, it does not follow that the perspective of an accused person ought to be factored out of the equation. Any accused person who found themselves similarly situated to the appellants would be unlikely to experience the trial judge’s numerous guilty plea promptings as “compassionate”. Being apprised of the mere gist of what transpired in-chambers (as opposed to verbatim accounts, which would have had a far worse impact on the appellants’ perception of the trial judge’s impartiality), combined with what the trial judge said to the appellants directly in court, would lead any accused person to believe that, even though their ultimate fate lay in the hands of the jury, the trial judge was against them. Any reasonable and informed observer would reach the same conclusion. . Law Society of Ontario v. Colangelo
In Law Society of Ontario v. Colangelo (Div Court, 2024) the Divisional Court dismissed an LSO-brought JR on the LSO-licensing issue of 'good character', here for someone "who is serving a criminal sentence".
Here the LSO argued procedural unfairness where the Hearing Division intentionally delayed it's decision because "the panel prefers to conduct its analysis of Ms. Colangelo’s character at a time when her custodial period is at or near completion." The LSO couched this issue as both procedural unfairness and bias:The Procedural Fairness Issue
The Decision of the Hearing Division
[53] At the conclusion of the two-day hearing, on May 19, 2022, the Hearing Panel reserved its decision. In its endorsement, dated May 18-19, 2022, the Panel stated that it would delay releasing its decision until November 1, 2022. The endorsement further noted that if anything occurred between May 18, 2022, and October 14, 2022, that was relevant to good character, the parties had until October 18, 2022, to submit an affidavit setting out the relevant evidence, accompanied by short written submissions detailing the impact it had on the good character decision. The other party would have 7 days to respond.
[54] The endorsement was delivered on May 26, 2022. That same day, counsel for the LSO e-mailed the Tribunal asking for clarification as to why there would be a six-month delay in issuing the reasons. On June 16, 2022, the Panel responded stating that “the reason for reserving the decision is that the panel prefers to conduct its analysis of Ms. Colangelo’s character at a time when her custodial period is at or near completion.” The deadline to object to the Tribunal’s timeline was extended to June 23, 2022.
[55] On June 23, 2022, LSO’s counsel submitted an objection to the Panel’s chosen manner of proceeding. Among other things, the LSO submitted that the Panel should base its decision on evidence presented at the hearing, and that it was contrary to the principles of natural justice for the Panel to unilaterally decide to re-open the case and accept further evidence.
[56] On August 8, 2022, the parties received a further endorsement, dated August 5, 2022, in which the Panel summarized its previous endorsements and the LSO’s objections. The endorsement concluded by stating that since Ms. Colangelo took no position on the LSO’s objection, and despite the fact that the procedure set out in the May 18-19 endorsement was efficient and in the interests of both parties, the Panel would provide its reasons in the normal course and without accepting further evidence.
[57] The hearing division’s reasons for decision and the order were released on November 11, 2022.
The Decision of the Tribunal Re Procedural Fairness
[58] The release of the reasons from the hearing division almost coincided with the completion of the Respondents conditional sentence (conditional sentence completed November 23, 2022; Reasons of the hearing division released November 11, 2022). On appeal to the Tribunal the LSO argued that the hearing division failed to abide by the principles of natural justice in the process that it followed prior to the release of its reasons. Specifically, the LSO argued that by delaying the release of its reasons until the Respondent had completed her conditional sentence resulted in a process that was procedurally unfair and created an appearance of bias which had tainted the decision.
[59] The Tribunal framed part of the argument by the LSO as one that suggested the hearing division had “deliberately delayed” the release of its reasons to coincide with the completion of the Respondent’s conditional sentence. Dealing with that argument the Tribunal concluded at paras. 76 and 77 of its reasons as follows:[76] Furthermore, there was no reason for the hearing panel to deliberately delay its decision. The hearing panel dealt directly with fact that Ms. Colangelo was still serving her sentence in its reasons and by including in its order the restriction that she may not commence providing legal services until she has served her sentence. It was open to the panel to make this order in June or at any time prior to the eventual issuance of the order in November.
[77] The hearing panel’s reasons do not indicate that the panel relied on the fact that Ms. Colangelo’s conditional sentence order was near an end in granting her application for licence. Rather, it based its decision to grant the licence on its finding that Ms. Colangelo is currently of good character. [60] The LSO also argued that the endorsement from the hearing division released May 18-19, 2022, “to conduct its analysis of Ms. Colangelo’s good character at a time when her custodial period is at or near completion” was inappropriate and that it amounted to an unfair process. The LSO further argued that the delay in the release of the hearing division’s reasons gave rise to a reasonable apprehension of bias.
[61] The arguments made by the LSO regarding procedural unfairness and bias were rejected by the Tribunal. In doing so it was noted by the Tribunal that the offer by the hearing division to receive additional evidence from the parties after the completion of the hearing was objected to by the LSO and was not accepted by either party. As such no additional evidence was provided to the hearing division and none was relied upon.
[62] In rejecting the Tribunal’s unfairness and bias arguments the Tribunal at paras. 89-91 stated:[89] ... . . Whatever the hearing panel’s motives were for initially requesting additional evidence and proposing to delay its decision until closer to the time when Ms. Colangelo’s custodial sentence was completed, the endorsements do not indicate bias and do not taint the panel’s decision.
[90] An informed person viewing this case realistically and practically would not conclude that it was more likely than not that the panel, whether consciously or unconsciously, would not decide fairly. 12 2015 SCC 25. 13 Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC). 2023 ONLSTA 16 (CanLII) 18.
[91] The strong presumption of impartiality of the judiciary applies to the panels of this Tribunal. There is a high burden on a party alleging bias and the Law Society has not met that burden in this case.
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