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Bias - 'Institutional Bias'

. R. v. Currado

In R. v. Currado (Ont CA, 2023) the Court of Appeal considered a defence allegation of 'institutional bias':
[24] The appellant also places reliance on the Supreme Court of Canada’s judgment in R. v. Lippé, 1990 CanLII 18 (SCC), [1991] 2 S.C.R. 114. He submits that the institutional bias described in Lippé finds a counterpart in this case in the LPS’s institutional conflict of interest arising out of its role as victim and investigator.

[25] Institutional bias, as described in Lippé, can have application in the context of an abuse of process claim based on the residual category. A conflict giving rise to an abuse of process within the residual category can arise where the conflict flows from generally applicable statutory mandates or structures, and not from any concerns particular to a specific fact situation. Section 19(2) of the Special Investigations Unit Act, 2019, S.O. 2019, c. 1, Sched. 5, which requires that police forces not investigate member police officers for certain serious offences, can be seen as a statutory recognition that the risk of institutional bias, either for or against a charged officer, is, in the circumstances addressed by the Act, so serious as to preclude a police force from investigating the matter.

[26] Beyond describing the concept of institutional bias, Lippé is of no assistance in this case. Lippé involved a challenge under s. 11(d) of the Charter to the independence and impartiality of municipal courts in Québec. Section 11(d) applies to courts who are adjudicating charges against individuals. The concepts of impartiality and independence, as considered in Lippé, have no application to the LPS, an investigative arm of the administration of justice.
. Haudenosaunee Development Institute v. Metrolinx

In Haudenosaunee Development Institute v. Metrolinx (Ont CA, 2023) the Court of Appeal considered an argument about 'institutional bias', which amounts to an argument that the Court of Appeal itself was conflicted in ruling on a matter involving the cutting down of Osgoode Hall (the site in Toronto of the Court) trees:
[19] In oral argument, Metrolinx underscored that it was not asserting individual bias on the part of any judge or judges on this court. Metrolinx also emphasized that there is no allegation of actual bias. Rather, Metrolinx asserted that there was a reasonable apprehension of institutional bias – that is, that the Court of Appeal for Ontario as an institution would not be able to fairly determine any issue in relation to the Osgoode Hall station, and in particular the removal of trees from the Osgoode Hall property.

[20] In support of this position, Metrolinx referred to a letter dated December 5, 2022 from Associate Chief Justice Fairburn of this court to the Attorney General of Ontario. In the letter, the Associate Chief Justice indicates that she is speaking on behalf of the Court of Appeal and that Chief Justice Morawetz of the Superior Court of Justice shares the views she expresses.

[21] The gist of the Associate Chief Justice’s letter – to the Attorney General, not Metrolinx, we emphasize – is that both the Court of Appeal and the Superior Court of Justice have a concern about “the structural integrity of Osgoode Hall”, “the safety of the occupants of Osgoode Hall and those who attend at Osgoode Hall” and whether “justice can be accessed and delivered from Osgoode Hall if this project proceeds as contemplated.” The word “trees” is not mentioned in the letter.

[22] The test for reasonable apprehension of bias was stated almost 50 years ago by de Grandpré J. (dissenting, but not on this point) in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:
... what 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.

See also: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 20.
[23] There is a presumption of judicial impartiality. As expressed by McLachlin C.J. in Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, at para. 22:
The basic framework for assessing a claim that the judge failed to decide the case independently and impartially may be summarized as follows. The claim is procedural, focussing on whether the litigant’s right to an impartial and independent trial of the issues has been violated. There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently.
[24] In our view, Metrolinx’s position is far removed from meeting this stringent standard. Most judges, including appeal court judges, focus entirely on their adjudicative role. A small number, especially chief justices and associate chief justices, have a second, and different, role – administering the court. In this latter role, these judges must communicate and interact with many external constituencies – governments (especially attorneys general), professional organizations like the Canadian Bar Association and the LSO, smaller legal organizations that represent particular groups of the legal profession, the media, law schools, and many others. All of these relationships, contacts and communications are administrative tasks, not adjudicative.

[25] It follows that the “informed person, viewing the matter realistically and practically – and having thought the matter through” would conclude that the Associate Chief Justice’s letter to the Attorney General would not give rise to any concern about the court’s independence and impartiality. The letter does not raise any spectre of judicial bias.

[26] Metrolinx’s argument is, in effect, that the letter casts a shadow over the independence of the entire Court of Appeal with respect to this litigation. In other words, the letter creates a reasonable apprehension of bias that precludes all judges of the court from hearing the motions and appeal. Hence Metrolinx posits the remedy of designating three judges of the Superior Court of Justice from outside Toronto as ad hoc judges of the Court of Appeal to hear all proceedings relating to the motions and appeal.

[27] We did not give effect to this argument. It is misconceived and misunderstands the role of the Ontario judiciary, which is, always, to hear and determine motions and appeals fairly and impartially. Concerns about the practicalities of administering court hearings amidst an ongoing construction project do not cast any aspersions on the court’s ability to perform its adjudicative role.


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Last modified: 27-04-23
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