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Bias in Adjudicators - Test

. R. v. MacMillan

In R. v. MacMillan (Ont CA, 2023) the Court of Appeal considers the oft-argued issue of bias, here in a criminal trial judge:
[75] I begin with the test for determining whether the trial judge’s conduct evinced a reasonable apprehension of bias. The test was articulated by de Grandpré J. (dissenting) in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at pp. 394-95, and has been consistently applied since. The test is:
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.
[76] The reasons of Cory J. (concurring) in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 expand on what is required under the test:
[This test] contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including “the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold”…. [T]he reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism and gender bias in a particular community. [Citations omitted. Emphasis in original.]
[77] The jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence. As this court articulated in R. v. Gager, 2020 ONCA 274, at para. 153, leave to appeal refused, [2020] S.C.C.A. No. 443, [2020] S.C.C.A. No. 444:
There is no question that trial judges must endeavour to carry out their obligation to manage a trial in a courteous manner. However, we do not expect trial judges or counsel to be perfect. That is why context is so important. The test is whether the objective observer would conclude in the circumstances that the trial judge would likely not decide fairly or otherwise undermine trial fairness. The fact that the trial judge and counsel occasionally and admittedly showed some signs of impatience and frustration in the course of a very difficult four-month proceeding was entirely understandable in this case. I am satisfied in the circumstances that the trial judge’s interventions, viewed in context, come nowhere close to being discourteous, let alone establishing a reasonable apprehension of bias. [Citations omitted.]
[78] The jurisprudence establishes that the application of this test is framed by: (i) a strong presumption of judicial impartiality, which accords judicial decision makers considerable deference on appeal; (ii) a high burden on the part of the party alleging bias; (iii) a contextual assessment of the alleged bias, i.e., the instances of alleged bias (e.g., inappropriate, unjustified, or improper comments) are not to be considered in isolation, rather, the question should be whether the alleged bias influenced the decision-making process; (iv) the broad discretion afforded to trial judges in exercising trial management powers to ensure a trial remains “effective, efficient and fair to all parties” (this includes the power to intervene to focus the evidence on material issues, clarify evidence, avoid irrelevant or repetitive evidence, dispense with proof of obvious or uncontested matters, ensure that the way a witness answers questions does not unduly hamper the progress of the trial, or prevent a trial from being unnecessarily protracted); and (v) the presence of the jury during the impugned conduct: see e.g., Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 25-26; R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 47-51; Gager, at paras. 144, 152-53.
. Manafa v. Tannous

In Manafa v. Tannous (Div Court, 2023) the Divisional Court considers a test for bias:
Actual or Perceived Bias

[71] The test for determining bias was originally articulated by the Supreme Court in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369. The test was described as follows (at p. 394):
The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “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 Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”
[72] This test is an objective one and there is a strong presumption of impartiality that applies to judges. R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 31.
. R. v. Marrone

In R. v. Marrone (Ont CA, 2023) the Court of Appeal reviews the test for reasonable apprehension of bias in a judge:
(d) Legal Principles

[91] Where the issue is reasonable apprehension of bias, an appellate court reviews the matter anew. No deference is owed to the lower court’s determination: R. v. G. (P.), 2017 ONCA 315, 138 O.R. (3d) 343, at paras. 20-25.

[92] It is a fundamental right of a party to a judicial proceeding that the judge is, and appears, impartial. Bias is the inverse of impartiality. It “denotes a state of mind that is in some way predisposed to a particular result or that is closed with respect to issues”. When bias is found to be present in a judicial proceeding it taints it completely and is not cured by the correctness of the ultimate result. Actual bias need not be shown (and is here not suggested). But a trial will be rendered unfair if the words or actions of the trial judge give rise to a reasonable apprehension of bias to the informed and reasonable observer: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 81, 94, 100, and 105.

[93] The test to determine whether a reasonable apprehension of bias is present is this: would a reasonable person, properly informed and viewing the matter realistically and practically conclude that the decision-maker could 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, per de Grandpré J. (dissenting); Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21.

[94] The test is stringent, as judges are presumed to be impartial. "There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption": R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59; R. v. S., at para. 117.

[95] As this court stated in R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at para. 85:
When assessing whether the actions of a trial judge display a reasonable apprehension of bias, the conduct of the trial judge must be viewed in context. In R. v. Stewart, 1991 CanLII 11753 (ON CA), [1991] O.J. No. 81, 62 C.C.C. (3d) 289 (C.A.), appeal quashed, [1991] S.C.C.A. No. 110, Doherty J.A. said, at p. 320 C.C.C.: “It is a question of degree. At some point, incidents which, considered in isolation, may be excused as regrettable and of no consequence, combine to create an overall appearance which is incompatible with our standards of fairness.”
[96] Not all comments by a trial judge, even if troubling in some respects, can or should be equated with bias: R. v. S., at para. 100. This point is especially germane when it is comments about counsel that form the basis for the allegation of bias. Criticism of counsel is not simply equated with bias against the client. As Trotter J. (as he then was) noted, comments must be judged from the standpoint of what they say about whether the judge was disposed to decide fairly between the parties, not whether the judge was unimpressed by counsel: R. v. Czerniak, 2010 ONSC 5067, 259 C.C.C. (3d) 353, at para. 17.
. Davidson v. Canada (Attorney General)

In Davidson v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considers the test for bias:
[15] Further, the well-established test for a reasonable apprehension of bias is whether a reasonable and informed person, with knowledge of all relevant circumstances, viewing the matter realistically and practically, would think that it is more likely than not that the decision‑maker, whether consciously or not, would not decide the matter fairly (Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394, 9 N.R. 115). The onus on demonstrating bias rests with the party alleging it (R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 114, 218 N.R. 1).
. R. v. M.M.

In R. v. M.M. (Ont CA, 2021) the Court of Appeal considered the appeal ground of bias:
[18] The test for a reasonable apprehension of bias is long-standing, and was first set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394 (dissenting):
… 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. [Citation omitted.]
[19] The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias, as a result, is inherently contextual and fact-specific. Further, a presumption of impartiality, not easily displaced, imposes a high burden on the party alleging bias: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 25-26.
. Durham Regional Police Service v. The Ontario Civilian Police Commission

In Durham Regional Police Service v. The Ontario Civilian Police Commission (Div Ct, 2021) the Divisional Court considers the test for bias and impartiality of the administrative decision-maker:
[73] The test for reasonable apprehension of bias of an administrative decision-maker concerns the reasonably informed bystander. As stated by de Grandpré J., writing in dissent, in Committee for Justice and Liberty at p. 394:
… 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 … [T]hat test is “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 too: Baker, paras. 45-48.[74] As noted in Baker at para. 47, citing Newfoundland Telephone v. Newfoundland (Public Utilities Board), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623, 89 D.L.R. (4th) 289, the standards for reasonable apprehension of bias may vary depending on the context and the type of function performed by the administrative decision-maker. There is a strong presumption of impartiality for administrative decision-makers discharging their statutory duties. In order to overcome the presumption, the party alleging a reasonable apprehension of bias must establish the presence of “serious grounds.” The inquiry is “highly fact-specific” and contextual: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at paras. 59, 76 and 77.
. McMurter v. McMurter

In McMurter v. McMurter (Ont CA, 2020) the Court of Appeal sets out a test for bias:
[26] Judges are presumed to be impartial and the test for apprehension of bias establishes a high threshold. It requires that any apprehension of bias be a reasonable one, held by reasonable and right-minded persons. It asks “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”: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193, at para. 31.
. Laver v. Swrjeski

Here in Laver v. Swrjeski (Ont CA, 2014) the court comments generally on the test for bias:
[17] The issue of reasonable apprehension of bias was most recently discussed and considered by this court in Martin v. Sansome, 2014 ONCA 14 (CanLII), 2014 ONCA 14. In that case, the context was interventions by a trial judge during the examination of witnesses. This court set out the legal framework for the assessment of bias in the following passage at paras. 31-33:
[31] Bias is a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial: Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 58. The burden of establishing bias is on the party arguing that it exists. The test, found in Wewaykum, at para. 60, is long-established:
[W]hat 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[?]
[32] There is a strong presumption of judicial impartiality. The threshold is high for finding an apprehension of bias: Wewaykum, at para. 76.


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Last modified: 20-02-24
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