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Judges - Recusal. Collins v. Canada (Attorney General)
In Collins v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appellant's 'bias' motion for recusal of one of the assigned court panel, here premised on his past judicial involvement with some of her cases:[1] The appellant moves for an order that Stratas J.A. recuse himself from this appeal. She says that Stratas J.A. is biased against her. She relies on various directions, orders and judgments Stratas J.A. has made or concurred with in cases involving her since 2011.
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A. The principles governing a recusal motion
[3] The Chief Justice assigns judges of this Court to serve on panels to hear and decide cases. The judges have no input into this decision.
[4] In this case, consistent with the Court’s standard practice, Stratas J.A. had no input into the Chief Justice’s decision to assign him to this case.
[5] From time to time, judges receive a list of the cases to which they are assigned. Stratas J.A. learned that he was assigned to this case roughly a month ago. When he was assigned to it, he had no concern about his ability to accept the assignment.
[6] Once assigned to a matter, a judge cannot refuse the assignment or recuse, absent good legal cause.
[7] One example of good legal cause is actual bias in favour of or against a side on all or part of the case. A judge with that mental state must recuse forthwith and refrain from being involved in it at all.
[8] Another legal cause for recusal is if the judge is not actually biased but the circumstances are such that a reasonable, fully informed person, thinking the matter through, would conclude that it is more likely than not that a judge, whether consciously or unconsciously, would not decide the case 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 394.
[9] The two tests—one for actual bias, the other for apparent or apprehended bias—give voice to the fundamental principle that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R. v. Sussex Justices, [1923] EWHC KB 1, [1924] 1 K.B. 256.
[10] The judge against whom an allegation of actual bias is made, here Stratas J.A., is the only person who can confirm or deny the allegation. Thus, whether acting alone or on a panel, only that judge can decide the issue of actual bias.
[11] But where, as here, the Court is comprised of three judges on a panel and where the individual judge denies the allegation of actual bias, the appearance may nevertheless be such that the judge must recuse for reasons of fairness and to maintain the reputation of the Court and the public’s confidence in the administration of justice. Due to the broader sweep of apparent or apprehended bias—an institutional rather than an individual concern—all three judges comprising the Court must consider and determine the issue.
[12] There is a strong presumption that judges will obey their judicial oaths and act impartially. Unwarranted allegations of judicial bias can harm the administration of justice: Es-Sayyid v. Canada (Public Safety and Emergency Preparedness), 2012 FCA 59, [2013] 4 F.C.R. 3. Alleging judicial bias is “a serious step that should not be undertaken lightly”: R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 133.
[13] Thus, motions such as this should be brought only where there is a “real likelihood or probability of [actual or apparent] bias”, supported by “cogent evidence”: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282 at para. 25; Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357 at paras. 22 and 27. A wholly unwarranted motion should normally be met with an enhanced award of costs.
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