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Bias in Adjudicators - Personal(?) Comments by Adjudicator. R. v. Mwanz
In R. v. Mwanz (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here where the appellant argued bias stemming from judge-defence counsel interactions:[1] This is an appeal from the appellant’s sexual assault conviction. He raises a single ground of appeal,[2] arguing that the trial judge’s exchanges with defence counsel[3] during the trial betrayed a reasonable apprehension of bias. After hearing submissions, we dismissed the appeal with reasons to follow. These are our reasons.
ANALYSIS
[2] The test for assessing whether a trial judge has displayed a reasonable apprehension of bias is well-established. The question is whether a reasonable and informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that the trial judge did not decide the case fairly: Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394. The test is buttressed by a strong presumption of judicial impartiality and a heavy burden on those who seek to rebut it: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59; R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 SCR 484, at paras. 32, 117.
[3] The appellant points to several exchanges between defence counsel and the trial judge which he asserts, taken cumulatively, give rise to a reasonable apprehension of bias.
[4] The first exchange that the appellant takes issue with occurred during the hearing of the appellant’s re-election application. During submissions, the trial judge interrupted defence counsel several times, repeatedly asking him to provide support for his arguments and explain the distinctions he was drawing in the caselaw. Defence counsel was unable to do so to the trial judge’s satisfaction. Eventually, the trial judge concluded that the back-and-forth between him and defence counsel was going nowhere and the following exchange occurred:MR. GILBERT: No. I, I, I understand what you what Your Honour is saying, but....
THE COURT: You don't seem to. Because you keep, you keep saying the same thing to me over and over. All right. When did you sit down? Let me hear from the Crown because you're not being terribly helpful — no offence, Mr. Gilbert. [5] The appellant argues that the trial judge’s interruptions and his final comment demonstrates that he was not open to defence counsel’s arguments. We do not agree. The trial judge’s final comment came after a lengthy dialogue between the trial judge and defence counsel in which the trial judge had acknowledged defence counsel’s position and engaged with the arguments and the caselaw provided by him. The trial judge’s interruptions, while not the most effective way of engaging with defence counsel’s arguments, were an attempt by the trial judge to do so. There is no basis to conclude that the trial judge had already made up his mind before hearing from counsel. Indeed, the trial judge explicitly told defence counsel, near the end of his submissions, that he was open to being persuaded by his arguments.
[6] The remainder of the impugned exchanges occurred during the trial proper. They centered around improper questioning of witnesses by defence counsel. On three separate occasions, defence counsel attempted to ask questions of witnesses that relied on prohibited myth-based reasoning. In one question, defence counsel suggested to the complainant that, following the assault, she had acted in a manner that was “unusual” for someone who had just experienced a traumatic sexual assault. In two others, defence counsel attempted to follow-up on evidence of the complainant’s prior sexual history that had been inadvertently solicited by the Crown. In each case, the trial judge, upon being alerted by Crown counsel of the issue, quickly interceded to prevent the questioning. Eventually, after the third question, the trial judge became frustrated with defence counsel’s conduct and said:THE COURT: And, you know, it sounds to me like you're not very fond of the section 276 legislation and the case law that flows from it. Well, you may not be fond of it but you better take a look at it and understand what it allows you to do and what it prohibits you from doing and what it tells me I cannot have — allow to have heard in the courtroom, because it's — makes pretty clear that what you're trying to do here is, is not, is not allowed in that section. Period. And if you have a problem with that, then you better learn to deal with it because that's the law, my friend, and that has been the law for some time. [7] The appellant submits that the trial judge’s treatment of the defence and the Crown was asymmetrical. He points to the fact that the Crown also solicited evidence of prior sexual history without any objection from the trial judge. We reject this submission. The fact that no objections were raised to the improper evidence proffered by the Crown did not make defence counsel’s questioning appropriate: R. v. Kuzmich, 2020 ONCA 359, 388 C.C.C. (3d) 243, at para. 56. Nor did the trial judge’s lack of objection to the Crown’s evidence mean that he was treating the Crown and the defence asymmetrically. Unlike defence counsel’s questioning, no one alerted the trial judge to the improper Crown evidence until defence counsel attempted to use it for his own impermissible purposes.
[8] To be clear, the trial judge’s comments to defence counsel were not appropriate. He may have been frustrated, but that is not a reason to be short-tempered with counsel. However, not all criticism of counsel – justified or otherwise – can be equated with bias. As explained in R. v. Marrone, 2023 ONCA 742, 169 O.R. (3d) 161, at para. 121: “[t]he critical question is not whether counsel was fairly criticized or fairly treated, but whether the criticisms were advanced in a way that gave rise to a reasonable apprehension that the trial judge was predisposed to one side.” We are not convinced that the trial judge’s comments in this case rise to the level of rebutting the strong presumption of judicial impartiality. . R. v. Mohamed
In R. v. Mohamed (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against convictions for second-degree murder and manslaughter.
The court considers the law of criminal mistrial, here where judicial bias was argued:[60] Judges are presumptively impartial and fair. A trial judge is entitled to express tentative views, so long as they could not reasonably be perceived as having closed their minds to counsel’s arguments: R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 128 (“Grant (ONCA)”), at paras. 127-130. A party seeking a mistrial must establish that a reasonable person, properly informed and viewing the matter realistically and properly, would conclude that the judge would be unable to decide the case fairly: R. v. Jaser, 2024 ONCA 448, 172 O.R. (3d) 1, at para. 311, leave to appeal refused, [2015] S.C.C.A. No. 127; Grant (ONCA), at para. 128; and Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394.
[61] The appellant has not rebutted the presumption of impartiality.
[62] The trial judge’s hypothetical question to the appellant’s trial counsel, premised on his potential rejection of the appellant’s evidence, was not surprising. It merely anticipated the R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 analysis that he would have to engage in to reach a verdict. The trial judge asked other hypothetical questions, including a question premised on the acceptance of the appellant’s evidence. He repeatedly stated that he had not made up his mind. In these circumstances, a reasonable person would not conclude that the trial judge would be unable to decide the matter fairly because his mind was closed or he was predisposed against the appellant.
[63] In the circumstances of this case, the trial judge’s comment about “liking” Mr. Ali likewise cannot reasonably be interpreted as an indication that he was biased against the appellant. On the contrary, it shows that the trial judge was alive to the need to guard against inherent biases that might skew his assessment of the evidence. This understanding of his comment about Mr. Ali is consistent with his thorough consideration, in his reasons for judgment, of Mr. Ali’s credibility and reliability.
[64] The trial judge was not required to respond in detail to every submission by the appellant’s trial counsel. His ruling explains why he dismissed the motion for a mistrial. He did not err in doing so. . Children's Aid Society of Toronto v. R.I.
In Children's Aid Society of Toronto v. R.I. (Ont CA, 2023) the Court of Appeal considered some statements respecting "views on the quality of the judges" made by a lower court judge, here as a potential bias issue:(ii) Reasonable apprehension of bias
[18] The test for reasonable apprehension of bias is high: Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369.
[19] I do not see any basis for the Society’s submission that the SCJ judge demonstrated any bias in his conduct of the appeal hearing. The SCJ judge attempted to get the parties to resolve the issue, which was entirely reasonable given the nature of the proceedings. Subrule 2(5)(c) of the Family Law Rules actually requires the court to promote its primary objective of enabling the court to deal with cases justly by “helping the parties to settle all or part of the case”.
[20] The Society also contends that references by the SCJ judge to his “respect for” his “wonderful” colleagues at the OCJ were “over familiar” and therefore gave rise to a reasonable apprehension of bias. I do not see a basis for this submission either. The SCJ judge specifically says that “I don’t know all of them [the judges at this particular courthouse] and I don't know the judge who, by the way, this judge”. In my view, this clarification completely undermines any suggestion of positive bias towards the judge who made the order under appeal. I accept that it would have been preferable if the SCJ judge had not offered his views on the quality of the judges of the OCJ in this fashion. Those views were not relevant to the issues but, more importantly, members of the public could easily misconstrue such comments as suggesting a prior relationship with those judges, including the judge being appealed, that might be seen as undermining the required independent and objective determination of the matter in issue. While I do not believe for a moment that any lack of objectivity occurred, appearances can be equally important to realities.
[21] None of that, however, warrants the suggestion that there was an appearance of bias on behalf of the SCJ judge. The conduct of the SCJ judge does not approach that level. . Kim v. McIntosh
In Kim v. McIntosh (Ont CA, 2023) the Court of Appeal noted a family court practice of judge's making 'Case History Reports' that precipitated bias allegations, here when cautionary notes were made with respect to a party. The court explains the issue at paras 38-60.
. 2264052 Ontario Inc. (Louch & Louch) v. Brockville Centre Development Corp.
In 2264052 Ontario Inc. (Louch & Louch) v. Brockville Centre Development Corp. (Ont CA, 2022) the Court of Appeal comments as to the elements of bias:[45] Second, the appellants advanced a claim of bias with respect to the conduct of the trial judge during the trial and in his reasons. In the latter regard, the trial judge, in his reasons, appears to disparage Mr. Thompson as a businessman or land developer by making reference to him as having a background as a potato farmer, a comment that was taken out of context from the evidence. There were also other unnecessary comments made during the course of the trial that suggested that the trial judge personally identified with Mr. Louch. Further, there were times during the trial when the trial judge made it appear that he was using his own personal experiences and knowledge to supplement the evidence led.
[46] All of these instances were unfortunate. Trial judges should remain vigilant in terms of the appearance of fairness. They should avoid commentary that might suggest to an outside observer that they are not impartial as between the parties. They should also avoid comments that might suggest that they are bringing their own personal knowledge of subjects to bear on the issues in the case. While it is unnecessary for me to reach a conclusion on whether these instances rise to the level of evidencing a reasonable apprehension of bias, it is a cautionary note that is worth repeating.
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