REASONABLE APPREHENSION OF JUDICIAL BIAS IN TRIAL PROCEEDINGS

(2009), 55 C.L.Q. 46, UPDATED: FEBRUARY, 2012.

JUDGE WAYNE GORMAN THE PROVINCIAL COURT OF

NEWFOUNDLAND AND LABRADOR

INDEXPAGE NO.:

INTRODUCTION................................................................... 1

AN EVIDENTIARY FOUNDATION................................... 4

WHEN SHOULD THE ISSUE BE RAISED...................... 5

EXCESSIVE INTERVENTION............................................ 6

COMMENTS MADE OUTSIDE THE COURTROOM.... 13

PRIOR INVOLVEMENT IN THE CASE........................... 15

RE-OPENING A TRIAL....................................................... 20

SENTENCE............................................................................ 21

APPEALS................................................................................ 24

REMEDY................................................................................. 28

CONCLUSION....................................................................... 28

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INTRODUCTION

The purpose of this paper is to serve as an update of the paper on

reasonable apprehension of bias which was published in the Criminal Law

Quarterly (the C.L.Q.). An earlier version of the C.L.Q. paper was

presented at an annual meeting of the Judges of the Provincial Court of

Newfoundland and Labrador. I have added a section on appeals and judicial

comments made outside of the courtroom, but otherwise I have followed the

same format and used the same headings as contained in the original paper.

In the C.L.Q. paper, it was noted that impartiality is the “fundamental

qualification of a judge” and that this requires at times, restraint. In R. v.

Dobson, [2009] O.J. No. 4116, the Ontario Court of Appeal considered this

issue in a case in which it described the trial judge’s comments during the

trial to have been “ill chosen and [which] could have been phrased in a more

courteous, less abrasive fashion.” However, the Court of Appeal upheld the

conviction enterd in that case by the trial judge and noted that “while trial

judges bear responsibility for ensuring that the trial proceeds in an orderly

and efficient fashion and are entitled to be firm in carrying out this function,

it is essential that, in doing so, they maintain judicial decorum” (also see

Tedjame-mortty [2011] Crim. L.R. 676). Similarly, in R. v. J.L.M.A.,

[2009] A.J. No. 1148, at paragraph 24, the Alberta Court of Appeal stated

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that the parties to a matter are “are entitled to a fair judge, but not an

ignorant, unqualified, gullible, or untrained one.”

In R. v. Thomas, 2010 MBCA, the Manitoba Court of Appeal

summarized the applicable test by indicating that no “informed person

viewing what transpired at the trial realistically and practically and having

thought the matter through would conclude that the trial judge’s words or

conduct were evidence of an inability to decide the matter fairly. There was

no reasonable apprehension of bias here” (also see R. v. Malcolm [2011]

EWCA Crim 2069).

In Save Guana Cay Reef Association Ltd v The Queen & Ors

(Bahamas) [2009] UKPC 44, the reasonable apprehension of bias which

was alleged arose out of the following circumstances:

...it is said that he [the trial judge] was an acting judge appointed on a temporary basis (that is on a six-month renewable contract) and that the Government of the Bahamas was at the time in default in failing to review judges' salaries. Miss Jordan added, in reinforcement of those main grounds, that the acting judge had been a senator in the governing party, and that the judicial review proceedings were of particular political sensitivity.

The Privy Council did not see this as raising a reasonable

apprehension of bias. It indicated that “there is no single test that is

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decisive. All the circumstances have to be taken into account” (at

paragraphs 51 and 52):

Both before and since Porter v Magill there have been cases considering whether the fact that a judge has no long-term security of tenure would lead a fair-minded and informed observer to conclude that there was a real possibility of bias, because of the temporary judge's inclination to be over-deferential to those who had power to terminate or renew his appointment. The most important authorities are Starrs v Ruxton 2000 JC 208, Millar v Dickson [2002] 1 WLR 1615 and Kearney v HM Advocate 2006 SC(PC) 1. Kearney shows that there is no single test that is decisive. All the circumstances have to be taken into account. The decisive point invalidating the use of temporary sheriffs was the fact that under section 11(4) of the Sheriff Courts (Scotland) Act 1971 the appointment of a temporary sheriff could be "recalled" (that is, terminated) by the executive at any time and for any reason; this was reinforced by practical arrangements (for instance, an age limit) which had no statutory authority. Kearney upheld the validity of the appointment of temporary judges of the High Court of Justiciary, where those difficulties did not arise (see the opinion of Lord Hope at paras 51-53).

Section 95 of the Constitution of the Bahamas makes express provision for the appointment of an acting Justice of the Supreme Court. His or her appointment may be either for a fixed period or until revoked by the Governor-General acting on the advice of the Judicial and Legal Service Commission (established under section 116 of the Constitution). In this case the acting judge was appointed for a fixed period of six months. During that period he had the same security as a permanent judge in that he could be removed only for inability to discharge his functions, or for misbehaviour (section 96(4) and (5) of the Constitution). He was, their Lordships were told, approaching retirement age. Neither the fact that he had been a senator, nor the fact that judges' salaries were at the time perceived as less than generous, is relevant. Nor is the fact that the case may have been perceived as controversial. Their Lordships, like the courts below, reject the assertion of apparent bias.

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THE IMPORTANCE OF AN EVIDENTIARY BASIS FOR THE RECUSAL REQUEST BEING ESTABLISHED

In the C.L.Q. paper, I referred to the importance of an evidentiary

basis for a recusal argument being established. This issue was considered by

the Ontario Court of Appeal in R. v. Fell, [2009] O.J. No. 2828.

In Fell, the accused overheard the trial judge make a comment in a

hallway concerning a witness, before the cross-examination of that witness

by the accused’s counsel had been completed. The accused alleged that he

overheard the trial judge say that this witness was “so far the most credible

and insightful witness.” This assertion was put forward by the accused’s

counsel as a basis for asking the trial judge recuse himself. The trial judge

declined to do so. He agreed that he had made a comment concerning the

witness, but denied that he made the specific comment alleged.

The Ontario Court of Appeal affirmed the trial judge’s decision. As

regards the manner in which the issue of a reasonable apprehension of bias

was raised, the Court of Appeal was critical of the lack of an evidentiary

basis for the recusal application having been laid. It concluded that when an

allegation of bias or reasonable apprehension of bias is made against a trial

judge, “counsel have an obligation to prepare and provide the court with a

record of the evidence they rely on in support of this serious allegation”:

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The appellant did not give evidence about what he was alleged to have overheard.  The allegations were put before the court through the submissions of counsel. There was no evidence called.  In particular, no effort was made to call the deputy to whom the comments were allegedly made nor the escorting officer who was with the appellant at the time the comments are alleged to have been made.  When an allegation of bias or reasonable apprehension of bias is made against a trial judge, counsel have an obligation to prepare and provide the court with a record of the evidence they rely on in support of this serious allegation.  Such a record then is available for the trial judge’s consideration and ruling, as well as for any appellate review of that judge’s decision down the road.  There was no such record in this case.

WHEN SHOULD THE ISSUE BE RAISED?

In the C.L.Q. paper I noted that “ideally, any allegation of an

apprehension of impartially or a disqualifying event having occurred should

be raised well before a trial is scheduled to commence.” In Gedge v.

Hearing Aid Practitioners Board, 2011 NLCA 50, it was held that “a

reasonable apprehension of bias must be raised at the first possible

opportunity. The basis for this rule is waiver: a party cannot ask for a

remedy from a tribunal and afterwards claim reasonable apprehension of

bias.” However, the Court of Appeal also pointed out that “the waiver rule

can only apply if the person alleging a reasonable apprehension of bias had a

prior opportunity to raise the issue. The apprehension must be raised at the

first possible opportunity.”

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EXCESSIVE INTERVENTION

In the C.L.Q. paper, I noted that excessive judicial intervention in the

trial process can raise a reasonable apprehension of bias. However, not

every intervention illustrates bias. In R. v. Johnson, 2010 ABCA 392, for

instance, the Court of Appeal noted that the “law is clear that interlocutory

observations or questions from a court are not judicial pronouncements.

Judges frequently ask questions in the course of submissions by counsel to

elaborate on the arguments and identify possible sticking points and

concerns. A sentencing judge is entitled to explore various avenues of

decision during counsel’s submissions. As stated by this Court in R. v.

Hodson 2001 ABCA 111, 281 A.R. 76 at para. 35: “[A] judge’s willingness

to openly debate counsel over relevant factual or legal issues in the case

should never, by itself, be allowed to corrode his verdict if that verdict is

sound in fact and law” (also see R. v. Snider, 2011 BCSC 645; R. v.

Krasniqi, 2011 ONSC 3646 (CanLII); and R. v. Devereaux, 2012 NLTD(G)

2).

However, in R. v. Oracz, 2011 ABCA 341, the Court of Appeal

indicated that a “cautionary note” was in order as regards judicial

intervention in the trial process:

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A cautionary note is in order. It is essential that trial judges not descend into the arena. It is always preferable for the trier of fact and the adjudicator of law to leave to the parties or their counsel the initiative to advance legal and factual arguments. Our system of criminal justice is premised on an adversarial model. Judicial inquests are not part of the process. While judges, in keeping with their sworn duties, may seek clarification of points in issue, the extent to which a judge may properly go beyond that is circumscribed. The judge must not enter the fray. That which governs is the necessity of ensuring a fair trial and one that is perceived by all concerned to have been conducted fairly and impartially.

In R. v. Baccari, 2011 ABCA 205, it was noted that during argument,

that “trial judges are not precluded from commenting on evidence or

attempting to focus the argument on issues of particular concern to the trial

judge. Give and take between a trial judge and counsel may be robust but

observations made by a trial judge during argument are not

pronouncements...A trial judge is not precluded from voicing concerns about

the evidence. Nor is a trial judge precluded from directing counsel’s

attention to the real issues in the case. Trial judges are not expected to be

mute manikins.”

The degree to which a trial judge can intervene was considered by the

Privy Council in Michel v. The Queen (The Court of Appeal of Jersey),

[2009] UKPC 41 (also see R. v. Czerniak, 2010 ONSC 5067 (CanLII)). In

Michel, the accused was convicted of “money laundering”, contrary to the

Proceeds of Crime (Jersey) Law 1999. On appeal, the accused argued that

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the trial judge’s (the Commissioner) excessive interventions during the trial

raised a reasonable apprehension of bias. Lord Brown, at paragraph 12,

summarized the nature of the interventions which had occurred, in the

following manner:

...the central ground of appeal as to the fairness of the trial, focused...entirely on the Commissioner's conduct of the hearing: his continual interruptions of the evidence, of prosecution witnesses as well as the appellant himself, of evidence in chief as well as cross examination. During the Crown's case the Commissioner time and again asked questions damaging to the defence case which prosecuting counsel could never have asked—for example cross-examining the appellant's clients to suggest both that they had behaved criminally and that this must have been obvious. During the appellant's own evidence the Commissioner intervened with substantive questions on no fewer than 273 occasions, 138 of them during evidence in chief. Generally this was with a whole series of questions, taking up in all just over 18% of the appellant's eight and a half days in the witness box. So much for the bare statistics. Of altogether greater significance than the mere number and length of these interruptions was, however, their character. For the most part they amounted to cross-examination, generally hostile. By his questioning the Commissioner evinced not merely scepticism but sometimes downright incredulity as to the defence being advanced. Regrettably too, on occasion the questioning was variously sarcastic, mocking and patronising.

The Privy Council pointed out, at paragraph 18, that “the mere fact

that a judge intervenes excessively or inappropriately does not necessarily

lead to a conviction being quashed. The decision for the Court is whether

the nature and extent of the interventions have resulted in the applicant's trial

becoming unfair.” But, the Court noted, at paragraph 27, that “there comes a

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point when, however obviously guilty an accused person may appear to be,

the Appeal Court reviewing his conviction cannot escape the conclusion that

he has simply not been fairly tried: so far from the judge having umpired the

contest, rather he has acted effectively as a second prosecutor.” The Privy

Council concluded that the “sheer volume” of the interventions was such

that the convictions could not stand (at paragraphs 34 to 36):

Naturally, in Jersey, where the facts are decided by the Jurats (the Commissioner retiring with the Jurats but not joining in the fact-finding unless the Jurats disagree), the facts are not summed up so that the Nelson approach is not available to the Commissioner. But that cannot begin to justify the Commissioner seeking to give the Jurats the benefit of his analytical powers by way of his own extensive examination of the witnesses, or indicating his thinking by the nature of his questions and comments. Indeed, it does not entitle him to conduct the hearing in any way different from that ordinarily required of a judge at trial. Of course he can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence-in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.

Regretfully the Commissioner's interventions during this trial breached each one of those canons. One can understand his incredulity during parts of the defendant's evidence. But quite why he thought it necessary to manifest it is altogether more difficult to follow. Not only was it improper, but he could scarcely have thought the Jurats unable to perceive for themselves many of the defence's "implausibilities, inconsistencies and illogicalities".

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Tempting though it is to include within this opinion a number of further citations from the transcript, the Board will not succumb. As already stated, no one has sought to justify the bulk of these interventions and in the end it is their sheer volume which compels the conclusion that this conviction cannot stand.

In R. v. Corbett, [2009] A.J. No. 1189 (Q.B.), the accused was

convicted of an offence, contrary to section 253(1)(b) of the Criminal Code

of Canada, RSC 1985. An appeal was taken to the summary conviction

appeal court and one of the grounds of appeal raised the issue of reasonable

apprehension of bias. The accused referred to numerous comments made by

the trial judge, including a comment made to Crown counsel, as establishing

a reasonable apprehension of bias. The appeal court judge described the

latter comment as follows (at paragraph 43):

The final point raised by the Appellant relates to the Trial Judge's questions to the Crown as to whether the Crown had tendered the Certificate of Analyses, and whether the evidence on the voir dire was applied by consent to the trial proper. The Appellant characterizes these queries as incidents in which the Trial Judge "assisted" the Crown, arguing that "the Crown has a burden to prove the material elements of the offence and it is very inappropriate for the Court to prompt or alert the Crown when they have failed to do that." This conduct, the Appellant argues, would cause a reasonable person to conclude that the Trial Judge was not "disinterested in the outcome".

In dismissing this ground of appeal, the appeal court judge held, at

paragraph 56, that a reasonable apprehension of bias had not been

established. The appeal court judge concluded that even if “the inquiries

could be characterized as prompts, they would not lead a reasonable

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observer to believe the Trial Judge had assumed the role of Crown counsel

or was partial to the Crown”:

...the actions complained of by the Appellant do not approach the level of judicial intervention that could give rise to an unfair trial or a reasonable perception of bias. The course of this relatively brief trial was rendered somewhat procedurally complex by the inclusion of two voir dires. In the course of discussions with counsel at the commencement and conclusion of the second voir dire, the Trial Judge asked two questions: first, whether the Certificate of Analysis, which had already been referred to in evidence, had been tendered as an exhibit, and second, whether the evidence on the voir dire was to be applied to the trial proper. Both were simple inquiries about non-contentious procedural steps. Even assuming the inquiries could be characterized as prompts, they would not lead a reasonable observer to believe the Trial Judge had assumed the role of Crown counsel or was partial to the Crown.1

In R. v. Svekla, 2010 ABCA 390, the accused was convicted of the

offence of sexual assault. He argued on appeal that comments made by the

trial judge during a voir dire indicated that the trial judge had “pre-judged”

the matter. His argument was summarized by the Alberta Court of Appeal

as follows:

The appellant points to two passages in the Similar Fact Evidence Ruling to suggest the trial judge pre-judged the appellant’s guilt: “the only logical inference to be drawn from the statement [that PL was “better” than MB’s daughter ever was] is that the accused engaged in sexual activity with P.L. ... it is not only permissible ... to infer that the accused probably engaged in some sort of sexual misconduct with P.L., it would be illogical not to do so”: paras 31 and 32.

1 For a consideration of these principles in a family law context, see Children's Aid Society of the Regional Municipality of Waterloo v. R.C., 2009 ONCA 840.

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The Court of Appeal rejected this argument. It concluded that the trial

judge’s “self-instruction was appropriate” (at paragraph 13):

We are not persuaded this ground of appeal is made out. The trial judge’s self-instruction was appropriate. He made it clear in paragraph 3 of the Similar Fact Evidence Ruling that everything that followed concerned the determination of whether the evidence was admissible. He properly stated the test for admissibility of similar fact evidence more than once. He obviously understood that to overcome the presumption against admissibility, he had to assess the probative value of the proposed similar fact evidence. His comments were all directed to that exercise. He did not thereby pre-judge the appellant’s guilt. Moreover, the appellant conceded during oral argument that if thereis a concern about a mid-trial finding of guilt by a trial judge, the better approach is to seek a mistrial at that point. That did not happen here.

In R. v. Lee, 2011 BCSC 1581, during the cross-examination of the

accused the trial judge said: “Oh, Mr. Lee, you’re really stretching things

here. You’re a terrible liar.” On appeal from conviction, it was argued that

this comment raised a reasonable apprehension of bias. In rejecting this

submission, the appeal court judge concluded that the “intervention was

unfortunate”, but not “material to the outcome” (at paragraphs 23 and 24):

The particular circumstances of this case, however, including the timing of the remark, the nature of the evidence that preceded it, and the content of what came after, satisfy me that the judge had heard all the evidence that necessarily contributed to her appreciation of the case by the time the remark was made. As the judge recognized, her intervention was unfortunate, but I do not think that, viewed in context, it was material to the outcome. The judge explained how she came to the conclusion she did, including her assessment of the credibility of the accused relative to that of the complainant. She considered and explained her view of the weight of the inconsistencies

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in the evidence. Nothing in the case as a whole, including what came after the court intervened, gives rise to a substantive concern about prejudgment.

I am satisfied that the trial judge heard and weighed the material evidence without actual prejudice or bias. The fact that she reached the conclusion she did before the cross-examination concluded accorded with the weight of the evidence she had heard. The brief evidence yet to come was not of a materially different character. At the point where the intervention occurred, an informed or right thinking person would conclude that the court was impatient with the appellant, not that she was biased. It was a reaction to the evidence, not a pre-emption of it. The judge dealt with her remark appropriately at the outset of her reasons, as in issue of temperament, and not of substance.

COMMENTS MADE OUTSIDE OF THE COURTROOM

The C.L.Q. paper did not contain a section dealing with extra-judicial

comments. These rarely occur, but an example of such occurring can be

found in D.P.P. v. Dumbrell, [2010] IECCA 84.

In Dumbrell, the accused were convicted of murder after a trial by a

judge and jury. The victim died as a result of a stabbing. During the trial,

the trial judge delivered a lecture at a law school on the topic of killings by

the use of knives and the lenient sentences imposed by the Irish Court of

Criminal of Appeal. Amongst the things said by the trial judge were the

following:

Such cases have increased exponentially in number and in my experience they broadly come about in one of three ways:

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1. After what used to be known as the fair fight and is now known as the straightener, the loser goes home to his kitchen drawer and returns to the scene with the bread knife, the carving knife or the vegetable knife.

2. That person who habitually carries a knife allegedly for his own protection uses it, and will often claim that he was merely waiving the knife when the deceased unreasonably impaled himself on it, and

3. The immigrant community who do not integrate buy vodka and beer in the off-licence and sit around a table in somebody’s flat drinking it in large quantities. When the row breaks out there is invariably close to hand a knife which has been used in the preparation of the vegetables.

These scenarios must now account for dozens of deaths every year. Fatal stabbings are in fact now out of control. The Registrar of the Central Criminal Court has just informed me that cases coming into the court have doubled overnight and that even after that a steady pattern of growth is projected for the future.

A request for the jury to be discharged was denied by the trial judge.

The Irish Court of Criminal Appeal, however, concluded that a new trial was

required. It concluded juries “must be permitted to arrive at their verdict in a

criminal trial without influence from extraneous and prejudicial material”:

The Court is satisfied that the statements made and as published was material that could prejudice a jury in arriving at a verdict in the circumstances of this case.

Juries must be permitted to arrive at their verdict in a criminal trial without influence from extraneous and prejudicial material. Strong and trenchant statements that manslaughter verdicts allegedly do not result in justice for the victims, their families or society is such prejudicial material. Such strong and far reaching considerations concerning the consequences of a conviction for manslaughter can

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only be considered as having real potential to prejudice a jury which may have to choose between a verdict of manslaughter or a verdict of murder, particularly when those statements although made outside of the trial are made during the trial and bear the authority of the presiding trial judge. Of course such statements could not in law have been introduced in the trial as counsel for the D.P.P. acknowledged at the hearing. However, it was brought to the minds of the jury in a unique, and so far as the Court is aware unprecedented, manner when the learned trial judge himself made such public statements while the trial was ongoing.

PRIOR INVOLVEMENT IN THE CASE

In the C.L.Q. paper, reference was made to how prior involvement in

a case rarely causes a reasonable apprehension of bias to arise. In R. v.

Hayes & Lowe (2009), 288 Nfld. & P.E.I.R. 212 (N.L.S.C.), this issue arose

in the context of a guilty plea being entered by a co-accused.

In Hayes, one of two accused pleaded guilty during the trial. The

agreed statement of facts made reference to the other co-accused’s

involvement in the offence. After the trial recommenced, this co-accused

sought recusal of the trial judge on the basis of the contents of the statement

of facts. The trial judge granted the motion. He stated that “the wise and

sensible position would be for me to step down from this case” (at paragraph

27):

I believe the wise and sensible position would be for me to step down from this case for all of the above reasons and have another colleague retry the case. I sincerely apologize to both accused for the present situation. Anything that was done in this case was done in what I believed was an appropriate manner. I regret having to step down, but

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to not step down could be seen as bringing the administration of justice into disrepute.

In R. v. Smith, 2009 ABQB 618, after a voir dire was conducted, the

trial judge stated: “So on the result, he is found guilty of both charges.” The

trial continued and the accused was convicted. On appeal, it was held that

the trial judge’s remarks at the end of the voir dire did not cause a

reasonable apprehension of bias to occur. The appeal court judge concluded

that “rulings in previous unrelated cases, or in a related case or even in the

same matter, will not in and by itself be a cause for disqualification” (at

paragraph 39):

It does not follow that because the trial judge, having heard all the evidence, prepared to give a merits decision prior to hearing submissions, that his mind was made up and closed. Judges form impressions and come to tentative conclusions throughout a trial. They however remain open to changing those impressions and those tentative conclusions up to the moment that they announce their finaldecision. There is no basis on this record for concluding that the trial judge here did not follow that course. I dismiss this ground of appeal.In summary, rulings in previous unrelated cases, or in a related case or even in the same matter, will not in and by itself be a cause for disqualification.

In R. v. J.L.M.A. [2009] A.J. No. 1148 (C.A.), it was pointed out, at

paragraphs 14 and 15, that “having previously expressed opinions on a

relevant question of law does not disqualify a judge for bias...Indeed, a judge

is not disqualified even if he or she has expressed or reached previously, in

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the same case, an opinion on a topic which comes up again for decision

again.”

In Newfoundland and Labrador (Child and youth Advocate) v.

Newfoundland and Labrador (House of Assembly), 2009 NLTD 176, the

Child and Youth Advocate applied to the Court “for a declaration that, if and

when there should be tabled in the provincial legislature a motion calling for

her removal from the office of Child and Youth Advocate, she would be

entitled to a hearing before the legislature.” In a preliminary proceeding the

following exchange occurred:

THE COURT: I’ve gone through the material and

COFFEY, Q.C.: Yes.

THE COURT: - it amazes me what people can find to fight about and

what you get at the end.

The Child and Youth Advocate asked the judge to recuse himself.

The application was dismissed. The judge concluded as follows:

After considering all of the foregoing in its overall context, after objectively reflecting on “the judicial process and the nature of judging” and after deliberating on the issue thoughtfully, realistically and practically, the fair-minded observer would conclude that the statements relied on by Mr. Coffey fall short of the cogent evidence required to displace the fundamental presumption of judicial impartiality. The case for disqualification has not been established.

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In R. v. Moman, 2010 MBQB 178, the accused was convicted of an

offence, contrary to the Income Tax Act, RSC 1985. On appeal, he argued

that the trial judge should have recused himself because “the trial judge had

heard a previous matter dealing with the accused and convicted him.  The

Appellant’s position is that the connection between the charges for which he

was proceeding to trial and the previous convictions, as well as the

comments made by the trial judge in sentencing the accused on the previous

charges give rise to a reasonable apprehension of bias.”

In dismissing this ground of appeal, the appeal court judge concluded

that “there is nothing in that commentary to indicate the trial judge has a

disposition against the credibility of the accused” (at paragraphs 12 and 13):

On a review of the commentary from the previous proceedings, there is nothing in that commentary to indicate the trial judge has a disposition against the credibility of the accused.  The trial judge is careful to express that she has no way of knowing if the Appellant is avoiding the payment of taxes or not. 

 During the course of pronouncing sentence in the previous matter, the trial judge did comment on the effect of people failing to file their returns and pay any taxes owed.  I am not satisfied the comments made were such as to lead a reasonable right-minded and properly informed person to view the trial judge’s involvement in the subsequent proceedings as being consciously or unconsciously bias or predisposed against the accused.  Comments by a trial judge in sentencing an accused are often critical of the convicted person’s actions. 

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In R. v. P.L.R.L., 2010 MBOB 220, it was noted, at paragraph 15, that

“the case law has clearly indicated that even in those situations where a

judge has previously convicted an accused, a reasonable apprehension of

bias does not exist when the same judge hears a subsequent trial.”

In R. v. Rathgeber, 2010 SKCA 58, the issue of apprehension of bias

was raised in the context of the trial judge being aware of the accused’s

criminal record. The Saskatchewan Court of Appeal concluded that this

would not disqualify the judge from hearing the case because it “is

inevitable that accused persons will appear before judges who know of their

criminal histories”:

It is inevitable that accused persons will appear before judges who know of their criminal histories.  The community rightly trusts that such information will play no part in judicial decision making.  Accordingly, at least in the normal course, mere knowledge of an accused’s criminal record does not automatically disqualify a judge from presiding at a trial.  See: R. v. Moosomin, 2008 SKCA 168 (CanLII), 2008 SKCA 168, 239 C.C.C. (3d) 326 at paras. 16-20; R. v. J. (D.B.), 2000 BCCA 616 (CanLII), 2000 BCCA 616, 149 C.C.C. (3d) 534 at para. 19; R. v. Dorscheid (1991), 116 A.R. 79 (Alta. C.A.).

These decisions follow a long line of precedent which has consistently

held that prior involvement in a case rarely requires recusal. For instance,

conducting a judicial interim release hearing and then a trial for the same

accused person does not raise a reasonable apprehension of bias. The

hearings have distinct evidentiary foundations and legal considerations.

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There is a presumption that a trial judge will carry out her or his “oath of

office” (see R. v. S.(R.D.), [1997] 3 S.C.R. 484). Judicial bias involves a

consideration of whether a judge has illustrated a “predisposition to decide

an issue material to the proceedings such that his or her mind is closed or at

least strongly resistant to persuasion to the contrary view based on the

evidence adduced and submissions made in a specific case” (see Pearl v.

Peel Regional Police Services Board (2006), 43 C.R. (6th ) 175 (Ont. C.A.)).

Obviously, when we recuse ourselves we are saying that a reasonable person

would conclude that we cannot be true to our oath and that we have made up

our mind before the case has commenced. This would appear to be a

conclusion we could rarely arrive at.

RE-OPENING A TRIAL

In R. v. Katzenback, 2011 ABCA 318, the accused was charged with

an offence contrary to section 264 of the Criminal Code. At his trial he

initially declined to testify. However, after counsels’ submissions were

completed he indicated that he wished to testify. The trial judge re-opened

the trial and the accused testified. He was convicted. On appeal he argued

that the trial judge should have declared a mistrial. His appeal from

conviction was dismissed. The Alberta Court of Appeal concluded that “in

the circumstances of this case a reasonable and informed person viewing the

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trial would believe that the trial judge could still analyse the evidence

without any pre-conceived notions” (at paragraph 12):

In this case, the trial judge considered whether he could still analyse the evidence without any pre-conceived notions and came to the conclusion that he could. We are not inclined to interfere with that conclusion in the absence of any indication of bias. Secondly, in the circumstances of this case a reasonable and informed person viewing the trial would believe that the trial judge could still analyse the evidence without any pre-conceived notions. The judge had yet to render his verdict and there was nothing on the record to indicate that he had come to any conclusions.

SENTENCE

Judicial commentary at a sentence hearing can cause a reasonable

apprehension of bias to occur. In R. v. T. (C.J.), 2010 MBCA 61, the trial

judge made comments at a sentence hearing which the offender submitted

should have caused a recusal to occur. The Manitoba Court of Appeal

described the nature of those comments in the following manner:

In the course of listening to the Crown’s submissions, and prior to any submissions of defence counsel, the sentencing judge made the following comments:

That this punk thinks he can walk around, you know, with a sling under his jacket concealing a sawed off firearm.  I mean that – while he’s on probation and a weapons prohibition.  I mean it’s insane.

The Court of Appeal concluded that a reasonable apprehension of bias

had not been established because “reasonable person who was there for the

entire proceedings would have felt that the matter was decided fairly”:

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...as stated in R. v. S. (R.D.), 1997 CanLII 324 (S.C.C.), [1997] 3 S.C.R. 484, his comments cannot be looked at in isolation, but rather must be considered in the context of the circumstances and in light of the whole proceeding.  The comments of the judge came during submissions of Crown counsel, after the judge had heard about the seriousness of the offences, after having seen the incident on the video and after hearing about the young person’s criminal record, including the recent imposition of a weapons prohibition.  Looked at in that context, and especially after reading the reasons of the sentencing judge, where he carefully explained his rationale, we are of the opinion that a reasonable person who was there for the entire proceedings would have felt that the matter was decided fairly. 

In R. v. Lapointe, 2010 NBCA 63, the trial judge, who had

represented the offender prior to his appointment as a judge, during the

sentence hearing made a number of comments which the offender argued

raised a reasonable apprehension of bias. The New Brunswick Court of

Appeal described the circumstances involved as follows (at paragraph 13):

The sentencing judge made the impugned statements in both the morning and afternoon sessions of the hearing. The first statement was made during the morning session at which time counsel were given the opportunity to argue with respect to the appropriate sentences. At one point, the sentencing judge addresses the appellant by his first name “Bobby”. This is followed with the question: “What am I going to do?” The appellant responds with the exclamation “Eh?” and the judge once again asks: “What am I going to do?” A few lines later the sentencing judge observes: “I’ve known you for a long time and it’s always the same problem.” The appellant replies: “I know.” In the next sentence the judge states: “I’ve even represented you in the past.” In the afternoon portion of the hearing, while delivering the reasons for his decision, the sentencing judge makes reference to the fact that the appellant seeks to be sentenced to a federal institution. At this juncture, the judge states: “Robert this is your last chance. As I said to you this morning, I’ve known you for a long time. But you’ve gotta do something, as I’m out of ideas.” Based

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on those comments, counsel for the appellant argues the record reveals or gives rise to a reasonable apprehension of bias.

In rejecting the argument that a reasonable apprehension of bias had

been established, the New Brunswick Court of Appeal concluded that the

sentencing judge’s reference to the accused by his first name “was

regrettable” but a “reasonably well-informed bystander” would not conclude

that “the sentencing judge was biased against the appellant” (at paragraph

20):

To uphold the bias allegation on the facts of the present case, one must be prepared to accept that the sentencing judge’s comments about his knowledge of the appellant might reasonably be regarded by an informed and disinterested third party as reflecting a personal knowledge or relationship with the appellant, one that is outside the realm of what is generally known in the community in which they reside. Moreover, those comments would have to lead one to conclude that this extra-judicial knowledge was such that the reasonably well-informed bystander might harbour the belief that the sentencing judge was biased against the appellant. This is tantamount to saying that had the sentencing judge reflected on the matter of past-association, he would have recused himself from hearing the matter. Having regard to the relevant legal test, the legal presumption of judicial impartiality and the caution that the reasonable and well-informed bystander does not have a “sensitive or scrupulous conscience,” I cannot accept the appellant’s bias argument. Rather, the record supports the inference that the sentencing judge’s knowledge of the appellant is tied to the latter’s general reputation in the community which is informed by the frequency in which he appears in the Provincial Court and which remains a matter of public record.

In R. v. F.Y., 2011 NBCA 86, the accused was sentenced to a period

of twelve months incarceration for the offence of break and entry. She

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appealed from the sentence imposed. She argued that the sentence was

excessive and that a reasonable apprehension of bias had arisen. On the

latter issue, the following exchanged occurred between the trial judge and

Crown counsel at the sentence hearing:

MS. DRAIN: […] I think she might have some hope or suggestion that the Court may consider the imposition of a sentence under section 742, a conditional sentence. We would be –

THE COURT: Forget it.

MS. DRAIN: Okay; we would be opposed to it, plus it shows a break on her record that she doesn’t –

THE COURT: You know what I think of those anyway, Ms. Drain, so –

MS. DRAIN: Yes, I do, Your Honour; so in the circumstances we’re asking the Court to consider a period of incarceration I would suggest in the range of 18 to 24 months with regard to this matter.

On the issue of the above noted exchange, the New Brunswick Court of Appeal held that the trial judge “demonstrated a closed mind on the subject of a conditional sentence before having heard from the appellant. He

APPEALS

In Palkowski v. Ivancic, [2009] O.J. No. 4103 (C.A.), an allegation of

apprehension of bias was raised on appeal for the first time. The Ontario

Court of Appeal noted that an “allegation of reasonable apprehension of bias

calls into question not simply the personal integrity of the judge, but the

integrity of the entire administration of justice. Judges start with a

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presumption of impartiality. Where the ground is raised for the first time on

appeal in circumstances where there is no record below, this court must

exercise great caution.” The Court of Appeal stressed the importance of an

evidentiary foundation being laid and indicated that where “counsel in the

court below is of the view that the trial judge, or in this case, the motion

judge, is exhibiting bias, they have the obligation to raise it with the judge

below at the time. At that point, a record will become available and the

judge will make a ruling - both of which will then be available for this court

to review. That was not done here and the motion judge was not alerted to

this issue, now raised for the first time on appeal.” Also see R. v. Sydel,

2010 BCSC 1470.

In R. v. G.W., [1992] 2 S.C.R. 597, the Court of Appeal considered

the issue of the fitness of the sentence imposed upon the accused on its own

motion. On appeal, the Supreme Court of Canada held that an appeal court

did not have the authority to consider the fitness of sentence on its own

motion. The Court also considered whether doing so raised a reasonable

apprehension of bias. The Court concluded that the Court of Appeal’s

judgment raised a reasonable apprehension of bias because the panel had

expressed concerns about the appropriateness of the sentence that had been

imposed in the absence of argument and that therefore “the respondent’s

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application for leave to appeal the sentence should proceed before a

differently constituted panel of the Court of Appeal.” The Supreme Court of

Canada also cautioned against courts of appeal “inviting” counsel, on

conviction appeals, to appeal from sentence (“only in the rarest of

circumstances”). The Court concluded that Courts of Appeal should refrain

from doing so unless “...the sentence is so clearly unreasonable or

demonstrably unfit as to indicate possible oversight on the part of counsel or

an unrepresented accused.”

In R. v. J.L.M.A. [2009] A.J. No. 1148 (C.A.), the respondent asked

that four members of a five member panel of the Court of Appeal which

were assigned to hear the appeal to recuse themselves. The issue was

described by the Court of Appeal as follows:

So an important legal question is whether an appellate judge is disqualified by bias from sitting on an appeal panel because he or she previously expressed an opinion in a previous unrelated appeal on some topic likely to arise in the present appeal, even the proper law of precedent. Is it relevant also how he or she expressed that opinion?

Several judgments were filed, but all concluded that there was no

basis for any of the members of the panel to recuse themselves. The

following comments are illustrative of the Court’s conclusion:

Most of my judgments impugned on this motion, and a number of precedents relied on by the Crown in this appeal, are reserved decisions of the Court of Appeal. All such judgments have been circulated to the entire Court (in draft form) for comment and

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discussion on the law. It is safe to conclude that many (or most) of the judges on the Court expressed some sort of an opinion about the draft, and were listened to. The logic of the respondent's motion would exclude every judge then on the Court from sitting on the present appeal. See Boardwalk Reit v. Edmonton (#1), supra (para. 88). So there would not be 12, nor even 9 judges, free of the alleged taint and available to sit; there might be only two or three. Such a disqualification rule would be unworkable on courts which circulate drafts of judgments making new law, which is all but two or three of the appeal courts in Canada. [paragraph 34]

Judges' careers tend to last 20 or more years. Now judges are expected to give recorded reasons on facts and law in almost all cases, whether the point is novel or trite. So over his or her career, a judge will pronounce on tens of thousands of questions of fact or law. Some legal topics are constantly litigated, and some are very popular at a given time. Unless a judge did not sit on any bench until recently, the respondent's submissions would disqualify the judge from touching any case involving any of many thousands of topics. That rule would lead to many abortive trials and appeals, and constant searches for the judge's past track record. In many cases, no judge could sit with confidence on the trial or appeal. Such disqualifying previous opinions might be discovered only after the new judgment. The newest judges would be busy, and the senior judges would have little work to do. New judges would be disqualified for interest, and more senior ones for opinion. The whole system would soon become unworkable. [paragraph 36]

In the end, it is this simple. Having previously expressed an opinion on a point of law does not create a reasonable apprehension of bias, and therefore does not justify recusal. See for example: Broda v. Broda, 2001 ABCA 151, 286 A.R. 120 at para. 15; Vivace Tavern Inc. v. Ontario (2005), 77 O.R. (3d) 371 at paras. 4, 5, 12, 23 (S.C.J.); Tracy (Representative ad litem of) v. Instaloans Financial Solution Centres (B.C.) Ltd., 2009 BCCA 110, [2009] 4 W.W.R. 236 at para. 33;R. v. Trang, 2002 ABQB 1130, 332 A.R. 1 at para. 23; and Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development) (1999), 171 F.T.R. 91 at para. 9. A point of law includes an interpretation of a court's procedural rules. In turn, in the context of the Alberta Court of Appeal, procedural rules

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include both Practice Directions and Notices to the Profession adopted by the Court. [paragraph 65]

REMEDY

In the C.L.Q. paper I noted that the Supreme Court of Canada in R. v.

Curragh Inc., [1997] 1 S.C.R. 537, indicated that when a reasonable

apprehension of bias is established the remedy will “ordinarily” be a new

trial. In R. v. Purchase, 2012 BCSC 208, the trial judge held, at paragraph

222, in the context of a section 11(b) Charter ruling having been allegedly

prematurely issued, that “had I acceded to the accused’s application for a

mistrial, I would have further considered the appropriateness of ordering a

new trial as the remedy.  Consideration of this issue would include ordering

that another judge of this Court hear the accused’s Askov application.” 

CONCLUSION

As this update illustrates, the issue of reasonable apprehension of bias

continues to be a source of litigation. The recent cases referred to also

illustrate that the test to be applied when this issue is raised is a stringent one

(see J.L.M.A.). It is clear that recusal should not be lightly adopted and that

prior involvement in an ongoing matter, such as conducting a judicial

interim release hearing, is not an automatic basis for recusal at the trial. In

addition, these cases illustrate that intervention in the trial process requires

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subtlety. Though we bear a “responsibility” (see Dobson) to manage a trial,

we must do so with restraint. Though we can ask questions to “clear up

ambiguities”, we must not do so in a manner which “belittles or denigrates”

any of the parties involved (see Michel).

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