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Judges - Impartiality

. R. v. Edwards

In R. v. Edwards (SCC, 2024) the Supreme Court of Canada dismissed an appeal arguing that military judges, being officers in the Canadian Armed Forces, violated Charter 11(d) ["to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal"].

Here the court contrasts judicial independence with judicial impartiality:
[119] As mentioned above, the appellants have advanced arguments that straddle the line between judicial independence and impartiality. Judicial independence and impartiality are closely related but distinct concepts. Judicial independence is, as Le Dain J. explained, “a status or relationship resting on objective conditions or guarantees, as well as a state of mind or attitude in the actual exercise of judicial functions” (Valente, at p. 689). When these objective guarantees are satisfied such that a court, in the eyes of a reasonable and informed person, can be perceived to be independent and is actually independent, they “ensure that, considering all of their characteristics, the structures of judicial and quasi-judicial bodies do not raise a reasonable apprehension of bias” (2747-3174 Québec Inc., at para. 45).

[120] Even if the reasonable and informed person would conclude that a court is independent, they may come to the conclusion that the court is not impartial at either the individual or the institutional level (see R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at para. 49). Independent courts benefit from “a strong presumption of judicial impartiality that is not easily displaced” (Yukon Francophone School Board, at para. 25). That said, if a reasonable and informed person would “think that it is more likely than not that [the court], whether consciously or unconsciously, would not decide fairly” (Committee for Justice and Liberty, at p. 394) because of individual or institutional concerns, the impartiality of the court may be challenged (Lippé, at pp. 144-45).


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Last modified: 16-05-24
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