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Bias in Adjudicators - Unfavourable Comments

. 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, here in light of unfavourable judicial comments:
(2) There Was a Reasonable Apprehension of Bias

[70] The principles relating to a reasonable apprehension of bias have been discussed in many decisions of this court, including the recent cases of R. v. Marrone, 2023 ONCA 742, 431 C.C.C. (3d) 330; Cowan; and Jaser. As Zarnett J.A. said in Marrone, at para. 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.”

[71] It has long been recognized “that justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R. v. Sussex, ex party McCarthy, [1924] 1 K.B. 256, at p. 259. See also Roy, at p. 99; Jaser, at para. 310; and R. v. K.J.M.J., 2023 NSCA 84, at para. 1. This principle is at the foundation of the test for reasonable apprehension of bias, which was re-stated in Jaser, at para. 311:
The test for establishing a reasonable apprehension of bias is whether a reasonable person, properly informed and viewing the matter realistically and practically, would conclude that the decision-maker could not decide the case fairly: Committee for Justice & Liberty v. Canada (National Energy Board) (1976), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting); Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21; and Marrone, at para. 93
See also Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 60.

[72] In R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18, the court said: “There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption.” It may only be rebutted “by cogent evidence that demonstrates that something the judge did or said gives rise to a reasonable apprehension of bias”: R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at para. 45. Moreover, the impugned conduct or comments of the trial judge must be viewed in the context of the entire record to determine whether the alleged bias influenced the decision-making process or the overall appearance of the fairness of the proceedings: R. v. MacMillan, 2024 ONCA 115, at para. 78; Jaser, at para. 313.

[73] This court has also repeatedly expressed disapproval of trial judges inviting counsel into their chambers during the trial to comment on the evidence and encourage guilty pleas, both because of the risk to impartiality and the risk that the accused’s vital interests may be affected: R. v. Schofield (2012), 2012 ONCA 120 (CanLII), 109 O.R. (3d) 161 (C.A.), at paras. 19-21; R. v. Roy (1976), 1976 CanLII 1396 (ON CA), 32 C.C.C. (2d) 97 (Ont. C.A.), at pp. 98-99; R. v. James, 2009 ONCA 366, 95 O.R. (3d) 321, at para. 21; Poulos, at paras 19-22; R. v. Dayes, 2013 ONCA 614, 117 O.R. (3d) 324, at paras. 19-22; and S.M., at para. 38. In Schofield, MacPherson J.A. noted that negative comments made in-chambers by the trial judge about the appellant’s just-finished testimony “seriously compromised the trial judge’s impartiality”: at para. 21. The court in S.M. said, at para. 38, that “in-chambers comments about the evidence are particularly problematic if resolution is not achieved and the trial continues. The appearance of impartiality is lost.”

[74] The respondent correctly submits that the reasonable apprehension of bias test is more difficult to satisfy when the trier of fact is a jury and the impugned conduct of the judge did not occur in the presence of the jury: see Jaser, at para. 313; R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, at para. 97; and R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 51. However, it is possible to establish a reasonable apprehension of bias claim in these circumstances.

[75] The recent case of Cowan provides an example where the conduct of a judge in the context of a jury trial may still give rise to a successful reasonable apprehension of bias. In that case, the trial judge met with Crown counsel for dinner and drinks almost immediately after the jury found the appellant guilty of second degree murder.

[76] Similarly, the situation that unfolded in R. v. Walker, 2010 SKCA 84, 258 C.C.C. (3d) 36 illustrates the dangers of in-chambers commentary by a trial judge in a trial with a jury. In the middle of a jury trial, the trial judge invited counsel into chambers and discussed the strength of the case and the applicability of potential defences. She inquired into whether discussions about plea bargaining had taken place. In allowing the appeal, Richards J.A. (as he then was) said the following, at para. 38: “If the criminal justice system is to be perceived as being fair and impartial, judges cannot convene private and unrecorded meetings in mid-trial for the purpose of expressing their views about the substance of the proceedings and making inquiries about plea bargaining.” That is precisely the situation in this case.

[77] In our view, the appellants have met the high burden of establishing that the trial judge’s words – both in and out of court – gave rise to a reasonable apprehension of bias. In the middle of pre-trial motions into the admissibility of key pieces of evidence, the trial judge expressed his view that the appellants were “child killers” and should plead guilty to second degree murder. He expressed his views in-chambers, using aggressive and inappropriate language. He did so on two separate occasions.

[78] A reasonable and informed member of the community would conclude that the trial judge’s initial expression of his opinion demonstrated that he had pre-judged the case in concluding that both appellants were guilty of murder. This view was reinforced each time the trial judge broached the issue with counsel, including the second in-chambers meeting, when the trial judge again expressed himself using profane language. The trial judge acknowledged in his ruling that he was not apprised of all of the circumstances of the case, and that he might be wrong in his assessment. However, this did not stop him from expressing his strong opinions, nor did it lessen his persistence in attempting to have the appellants plead guilty.
. R. v. B.C.M.

In R. v. B.C.M. (Ont CA, 2023) the Court of Appeal considered a judicial bias argument in a criminal appeal where the court characterized the defendant behaviour in extreme moral terms. The defendant received a sentence of twelve years for "sexual assault causing bodily harm, sexual exploitation, uttering threats, incest, and making and possession of child pornography" against his biological daughter:
Is there a reasonable apprehension of bias?

[21] The appellant contends that the trial judge’s use of language in her reasons to describe the appellant and his actions was overly severe and displaces the presumption of judicial impartiality and meets the very high threshold of a reasonable apprehension of bias against him. In support of his submissions, the appellant points to the trial judge’s highly critical descriptions of his testimony, such as: “[t]he best he could do”, “outlandishly denied”, “shocking lies”, “descended to the loathsome depth of incriminating [his son]”, and “as futile as it is absurdly self serving”; and of his actions, for example: “wanton viewing pleasure” and “[d]espicable is an understatement”. In particular, the appellant highlights the following passage that appears at the end of the trial judge’s conclusion on the sexual offences:
[The appellant’s] take no prisoners, scorched-earth defence strategy etches a stunning picture of depravity and heartlessness. What I see is a father with callous disregard for the wellbeing and plight of his daughter and his baby and a profound indifference towards his young son. By any measure [the appellant] has transcended the bounds of human decency. He will live on in ignominy for his deeds.
[22] The appellant submits that the trial judge’s use of language was intemperate and unnecessary to her analysis, and that her apparent disgust with the appellant and his actions is so palpable in her written reasons that it must have seeped into her analysis and caused her to lose objectivity.

[23] We start our analysis of this ground with a review of the governing principles. The test for bias is well established: “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude”, as to whether “it is more likely than not that [the trial judge], whether consciously or unconsciously, would not decide 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, but not on this point). There is a high threshold and a heavy burden on the party who seeks to rebut the strong presumption of judicial impartiality: R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 32, per L’Heureux-Dubé and McLachlin JJ, at para. 113, per Cory J.; R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at paras. 84-85, citing R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18. In assessing the question of bias, the trial judge’s actions and reasons must be viewed as a whole and in the context of the entire proceeding: R.D.S., at para. 141, per Cory J.

[24] Trial judges have the discretion and independence to write their decisions as they see fit. To the extent that their use of language is unrestrained, they risk courting allegations of bias. Judicial restraint is necessary to uphold public confidence in the impartiality of the judiciary. While trial judges are human and are not expected to remain as immovable as a statue, as this court noted in R. v. P.G., 2017 ONCA 351, 138 O.R. (3d) 343, at para. 50, “[a] trial judge's duty is to try the case impartially – without favour or prejudice. His personal feelings about the appellant were irrelevant and ought not to have played any role in his decision.”

[25] The trial judge’s use of strong language was unnecessary for her determination of the issues before her and detracted from what was otherwise an excellent analysis. That said, to the extent that the trial judge’s comments may be seen to be overly strong, they do not suggest a reasonable apprehension of bias. When her comments are seen in their proper context, they do not demonstrate a closed mind against the appellant. See: R. v. McCullough, 1998 CanLII 6208 (Ont. C.A.), at para. 17, leave to appeal refused, [1999] S.C.C.A. No. 37.

[26] The trial judge’s reasons must be considered as a whole and in the context of the entire trial. Each case turns on its own facts. The circumstances of this case are different from the situation in P.G., on which the appellant relies. P.G. involved allegations that the minor complainant was repeatedly sexually assaulted by her mother’s boyfriend. Unlike the present case, the trial judge’s intemperate use of language permeated the trial proceedings and seeped into his reasons. The outcome of the trial turned on the trial judge’s credibility assessments of the witnesses, since, unlike here, there was no physical evidence like DNA or cellphone evidence. His credibility assessments of the complainant’s mother and her boyfriend contained very little analysis but were largely filled with sarcastic invective and denigrating comments. For example, as this court noted at para. 47 of its reasons, in assessing the evidence and demeanour of the accused, who was from Australia, the trial judge “viewed his crying [when he testified] as being nothing more than crocodile tears. They have large crocodiles in Australia”. This court found that the trial judge clearly engaged in uneven scrutiny of the Crown and defence evidence as he rejected all of the accused’s evidence effectively because of minor inconsistencies. A new trial was ordered.

[27] Here, the appellant limits his critique of the trial judge’s submissions to a few isolated passages in the trial judge’s detailed reasons. He does not allege, nor does the trial transcript indicate, that there is any suggestion of bias towards or unfair treatment of the appellant throughout the proceedings. Indeed, the trial judge allowed the appellant’s s. 276 application under the Criminal Code to admit evidence of the complainant’s other sexual conduct and worked with the parties on the areas of questioning to be allowed. Moreover, for the reasons earlier indicated, there is no basis to conclude that the trial judge engaged in an unfair or uneven scrutiny of the evidence. Her reasons demonstrate a thorough, even-handed consideration of the evidence and a correct application of the relevant legal principles. In particular, she analyzed separately the effect of the DNA paternity evidence and fairly recognized that the finding of guilt on a singular incident of sexual assault did not prove the commission of the other offences. As a result, she carried out a detailed, independent assessment of the evidence related to each of the other charges. The trial judge’s analysis and conclusions were unaffected by her expressed repugnance for the appellant’s offences.

[28] For these reasons, we reject the appellant’s contention that the trial judge’s analysis and conclusions were tainted by a reasonable apprehension of bias. The appellant received a fair trial.
. Anthony v. Vinczer

In Anthony v. Vinczer (Ont CA, 2022) the Court of Appeal identifies comments made by a judge that do not reflect bias:
[6] The appellant failed to make out a proper foundation for the bias allegation. Inevitably, in ongoing proceedings between parties that are heard by the same judge, comments are necessarily going to be made by the judge disposing of a particular step in the proceeding that a party may not like. That reality does not establish bias on behalf of the judge concerned. An informed person, viewing the matter realistically and practically, would not conclude that unfavourable comments of the type involved here would amount to a showing of bias by the presiding judge: Committee for Justice and Liberty v. 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.
. Kahsai v. Hagos

In Kahsai v. Hagos (Ont CA, 2022) the Court of Appeal commented on the autonomy granted a trial judge with respect to trial management:
[4] The appellant’s claim that the trial judge’s management of the trial was unfair and favoured the respondent does not bear up under scrutiny. The management of a trial is confided to the trial judge; it is not this court’s function to micromanage a trial in retrospect: R. v. Samaniego, 2020 ONCA 439, 151 O.R. (3d) 449, at paras. 15-17, aff’d 2022 SCC 9. The trial judge was patient with the parties and counsel, allowing the trial to stretch well beyond the estimated schedule. We will not criticize her modest efforts to corral counsel. Those efforts were balanced and reasonable.


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Last modified: 07-07-24
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