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Bias in Adjudicators - Yukon (leading SCC case)

. Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General)

The case of Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General) (SCC, 2015) contains a broad statement from the Supreme Court of Canada on judicial bia:

Analysis

[20] The test for a reasonable apprehension of bias is undisputed and was first articulated by this Court as follows:

. . . 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.]

(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))

[21] This test — what would a reasonable, informed person think — has consistently been endorsed and clarified by this Court: e.g., Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259, at para. 60; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (CanLII), [2003] 1 S.C.R. 539, at para. 199; Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303, at para. 26; Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 46; R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 11, per Major J., at para. 31, per L’Heureux-Dubé and McLachlin JJ., at para. 111, per Cory J.; Ruffo v. Conseil de la magistrature, 1995 CanLII 49 (SCC), [1995] 4 S.C.R. 267, at para. 45; R. v. Lippé, 1990 CanLII 18 (SCC), [1991] 2 S.C.R. 114, at p. 143; Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, at p. 684.

[22] The objective of the test is to ensure not only the reality, but the appearance of a fair adjudicative process. The issue of bias is thus inextricably linked to the need for impartiality. In Valente, Le Dain J. connected the dots from an absence of bias to impartiality, concluding “[i]mpartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case” and “connotes absence of bias, actual or perceived”: p. 685. Impartiality and the absence of the bias have developed as both legal and ethical requirements. Judges are required — and expected — to approach every case with impartiality and an open mind: see S. (R.D.), at para. 49, per L’Heureux-Dubé and McLachlin JJ.

[23] In Wewaykum, this Court confirmed the requirement of impartial adjudication for maintaining public confidence in the ability of a judge to be genuinely open:

. . . public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.

The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind. [Emphasis added; paras. 57-58.]

[24] Or, as Jeremy Webber observed, “impartiality is a cardinal virtue in a judge. For adjudication to be accepted, litigants must have confidence that the judge is not influenced by irrelevant considerations to favour one side or the other”: “The Limits to Judges’ Free Speech: A Comment on the Report of the Committee of Investigation into the Conduct of the Hon. Mr Justice Berger” (1984), 29 McGill L.J. 369, at p. 389.

[25] Because there is a strong presumption of judicial impartiality that is not easily displaced (Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (CanLII), [2013] 2 S.C.R. 357, at para. 22), the test for a reasonable apprehension of bias requires a “real likelihood or probability of bias” and that a judge’s individual comments during a trial not be seen in isolation: see Arsenault-Cameron v. Prince Edward Island, 1999 CanLII 641 (SCC), [1999] 3 S.C.R. 851, at para. 2; S. (R.D.), at para. 134, per Cory J.

[26] The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias, as a result, is inherently contextual and fact-specific, and there is a correspondingly high burden of proving the claim on the party alleging bias: see Wewaykum, at para. 77; S. (R.D.), at para. 114, per Cory J. As Cory J. observed in S. (R.D.):

. . . allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overriding principle that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather it must be considered in the context of the circumstances, and in light of the whole proceeding. [Emphasis added; para. 141.]

[27] That said, this Court has recognized that a trial judge’s conduct, and particularly his or her interventions, can rebut the presumption of impartiality. In Brouillard v. The Queen, 1985 CanLII 56 (SCC), [1985] 1 S.C.R. 39, for example, the trial judge had asked a defence witness almost sixty questions and interrupted her more than ten times during her testimony. He also asked the accused more questions than both counsel, interrupted him dozens of times, and subjected him and another witness to repeated sarcasm. Lamer J. noted that a judge’s interventions by themselves are not necessarily reflective of bias. On the contrary,

it is clear that judges are no longer required to be as passive as they once were; to be what I call sphinx judges. We now not only accept that a judge may intervene in the adversarial debate, but also believe that it is sometimes essential for him to do so for justice in fact to be done. Thus a judge may and sometimes must ask witnesses questions, interrupt them in their testimony and if necessary call them to order. [p. 44]

[28] On the other hand, Lamer J. endorsed and applied the following cautionary comments of Lord Denning in Jones v. National Coal Board, [1957] 2 All E.R. 155 (C.A.):

Nevertheless, we are quite clear that the interventions, taken together, were far more than they should have been. In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large . . . . [p. 159]

(See also Take and Save Trading CC v. Standard Bank of SA Ltd., 2004 (4) S.A. 1 (S.C.A.), at para. 4.)

[29] Although Lamer J. was not convinced that the trial judge was actually biased, there was enough doubt in his mind to conclude that a new trial was warranted in the circumstances of the case.

[30] In Miglin, another case where the allegation of bias arose because of the trial judge’s interventions, this Court agreed with the Court of Appeal for Ontario that while many of the trial judge’s interventions were unfortunate and reflected impatience with one of the witnesses, the high threshold necessary to establish a reasonable apprehension of bias had not been met. The Court of Appeal observed:

The principle [that the grounds for an apprehension of bias must be substantial] was adopted and amplified in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, . . . to reflect the overriding principle that the judge’s words and conduct must demonstrate to a reasonable and informed person that he or she is open to the evidence and arguments presented. The threshold for bias is a high one because the integrity of the administration of justice presumes fairness, impartiality and integrity in the performance of the judicial role, a presumption that can only be rebutted by evidence of an unfair trial. Where, however, the presumption is so rebutted, the integrity of the justice system demands a new trial.

The assessment of judicial bias is a difficult one. It requires a careful and thorough review of the proceedings, since the cumulative effect of the alleged improprieties is more relevant than any single transgression . . . . [Citations omitted; (2001), 2001 CanLII 8525 (ON CA), 53 O.R. (3d) 641, at paras. 29-30.]

[31] As for how to assess the impact of a judge’s identity, experiences and affiliations on a perception of bias, Cory J.’s comments in S. (R.D.) helpfully set the stage:

Regardless of their background, gender, ethnic origin or race, all judges owe a fundamental duty to the community to render impartial decisions and to appear impartial. It follows that judges must strive to ensure that no word or action during the course of the trial or in delivering judgment might leave the reasonable, informed person with the impression that an issue was predetermined or that a question was decided on the basis of stereotypical assumptions or generalizations. [para. 120]

[32] But it is also important to remember the words of L’Heureux-Dubé and McLachlin JJ. in S. (R.D.), where they compellingly explained the intersecting relationship between a judge’s background and the judicial role:

. . . judges in a bilingual, multiracial and multicultural society will undoubtedly approach the task of judging from their varied perspectives. They will certainly have been shaped by, and have gained insight from, their different experiences, and cannot be expected to divorce themselves from these experiences on the occasion of their appointment to the bench. In fact, such a transformation would deny society the benefit of the valuable knowledge gained by the judiciary while they were members of the Bar. As well, it would preclude the achievement of a diversity of backgrounds in the judiciary. The reasonable person does not expect that judges will function as neutral ciphers; however, the reasonable person does demand that judges achieve impartiality in their judging.

It is apparent, and a reasonable person would expect, that triers of fact will be properly influenced in their deliberations by their individual perspectives on the world in which the events in dispute in the courtroom took place. Indeed, judges must rely on their background knowledge in fulfilling their adjudicative function. [paras. 38-39]

[33] Judicial impartiality and neutrality do not mean that a judge must have no prior conceptions, opinions or sensibilities. Rather, they require that the judge’s identity and experiences not close his or her mind to the evidence and issues. There is, in other words, a crucial difference between an open mind and empty one. Bora Laskin noted that the strength of the common law lies in part in the fact that

the judges who administer it represent in themselves and in their work a mix of attitudes and a mix of opinions about the world in which they live and about the society in which they carry on their judicial duties. It is salutary that this is so, and eminently desirable that it should continue to be so.

(“The Common Law is Alive and Well — And, Well?” (1975), 9 L. Soc’y Gaz. 92, at p. 99)

[34] The reasonable apprehension of bias test recognizes that while judges “must strive for impartiality”, they are not required to abandon who they are or what they know: S. (R.D.), at para. 29, per L’Heureux-Dubé and McLachlin JJ.; see also S. (R.D.), at para. 119, per Cory J. A judge’s identity and experiences are an important part of who he or she is, and neither neutrality nor impartiality is inherently compromised by them. Justice is the aspirational application of law to life. Judges should be encouraged to experience, learn and understand “life” — their own and those whose lives reflect different realities. As Martha Minow elegantly noted, the ability to be open-minded is enhanced by such knowledge and understanding:

None of us can know anything except by building upon, challenging, responding to what we already have known, what we see from where we stand. But we can insist on seeing what we are used to seeing, or else we can try to see something new and fresh. The latter is the open mind we hope for from those who judge, but not the mind as a sieve without prior reference points and commitments. We want judges and juries to be objective about the facts and the questions of guilt and innocence but committed to building upon what they already know about the world, human beings, and each person’s own implication in the lives of others. Pretending not to know risks leaving unexamined the very assumptions that deserve reconsideration.

(“Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors” (1992), 33 Wm. & Mary L. Rev. 1201, at p. 1217)

[35] This recognition was reinforced by Cameron A.J. of the Constitutional Court of South Africa in South African Commercial Catering and Allied Workers Union v. Irvin & Johnson Ltd. (Seafoods Division Fish Processing), 2000 (3) S.A. 705:

. . . “absolute neutrality” is something of a chimera in the judicial context. This is because Judges are human. They are unavoidably the product of their own life experiences and the perspective thus derived inevitably and distinctively informs each Judge’s performance of his or her judicial duties. But colourless neutrality stands in contrast to judicial impartiality . . . . Impartiality is that quality of open-minded readiness to persuasion — without unfitting adherence to either party or to the Judge’s own predilections, preconceptions and personal views — that is the keystone of a civilised system of adjudication. Impartiality requires, in short, “a mind open to persuasion by the evidence and the submissions of counsel”; and, in contrast to neutrality, this is an absolute requirement in every judicial proceeding. [Citations omitted; para. 13.]

[36] Impartiality thus demands not that a judge discount or disregard his or her life experiences or identity, but that he or she approach each case with an open mind, free from inappropriate and undue assumptions. It requires judges “to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies”: Canadian Judicial Council, Commentaries on Judicial Conduct (1991), at p. 12. As Aharon Barak has observed:

The judge must be capable of looking at himself from the outside and of analyzing, criticizing, and controlling himself. . . .

The judge is a product of his times, living in and shaped by a given society in a given era. The purpose of objectivity is not to sever the judge from his environment [or] to rid a judge of his past, his education, his experience, his belief, or his values. Its purpose is to encourage the judge to make use of all of these personal characteristics to reflect the fundamental values of the society as faithfully as possible. A person who is appointed as a judge is neither required nor able to change his skin. The judge must develop sensitivity to the dignity of his office and to the restraints that it imposes. [Footnote omitted.]

(The Judge in a Democracy (2006), at pp. 103-4)

[37] But whether dealing with judicial conduct in the course of a proceeding or with “extra-judicial” issues like a judge’s identity, experiences or affiliations, the test remains

whether a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias . . . . [T]he assessment is difficult and requires a careful and thorough examination of the proceeding. The record must be considered in its entirety to determine the cumulative effect of any transgressions or improprieties. [Citations omitted; Miglin, at para. 26.]