Reasonable apprehension of Bias and the subject of a recusal of Judge

The right to a trial before an impartial judge is of fundamental importance to our system of justice. Should it be concluded by an appellate court that the words or actions of a trial judge have exhibited bias or demonstrated a reasonable apprehension of bias then a basic right has been breached and the exhibited bias renders the trial unfair.  Generally, the decision reached and the orders made in the course of a trial that is found by a court of appeal to be unfair as a result of bias are void and unenforceable. 

Please see the following regarding Reasonable apprehension of Bias and the subject of a recusal of Judge in F.Y. v. R., 2011 NBCA 86 (CanLII), <http://canlii.ca/t/fn8m7>

[6]                                       The rejection of the anticipated submission on sentencing before it is made demonstrates two errors of principle: violation of the right to be heard and violation of the right to an unbiased decision-maker.  The failure of the Provincial Court judge to hear the appellant before pronouncing upon a request for a conditional sentence is self-evident.  Unfortunately, the subsequent exchange between the judge and the appellant, which is partly set out in paragraph 12 below, not only failed to remedy the first violation but constitutes proof of the second.      

[7]                                       With respect to bias, I would note that it can come in many forms.  It need not be demonstrated against an individual because of his or her personal attributes, circumstance in life or previous interactions between the judge and the accused.  A judge can demonstrate actual bias or create a reasonable apprehension of bias because of his or her personal beliefs on the issue to be determined.  In Newfoundland Telephone Company v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623, [1992] S.C.J. No. 21 (QL), the appellant contended one of the board members was biased with respect to a rate hearing application. The board member made statements, while the hearing was in progress, about the very subject matter he was being called upon to address. For example, he said there was “no justification whatsoever to expect the consumers of telephone services […] to be paying the full cost of salary levels” and “[…] there is a significant level of overcompensation […]”.  Cory J., delivering the judgment of the Court, stated:

These statements, taken together, give a clear indication that not only was there a reasonable apprehension of bias but that Mr. Wells had demonstrated that he had a closed mind on the subject. [para. 38]

[8]                                       I am of the view the Provincial Court judge demonstrated a closed mind on the subject of a conditional sentence before having heard from the appellant. He thereby demonstrated actual bias against the interests of the appellant.

[9]                                       In the event the Provincial Court judge’s conduct did not demonstrate actual bias, I am of the view it, at a minimum, demonstrated a reasonable apprehension of bias.  In R. v. Curragh Inc., 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537, [1997] S.C.J. No. 33 (QL), the trial judge in a manslaughter case, which flowed from the death of 26 miners in Nova Scotia, made a phone call to the Acting Director of Public Prosecutions to express his displeasure with the conduct of the Crown prosecutor.  During that conversation, the trial judge requested the removal of the prosecutor.  In the event the Acting Director failed to act on the recommendation for removal, the trial judge threatened to take steps “to secure that end”. The Crown brought a motion for recusal, which was denied. Thereafter, the trial judge imposed a stay of proceedings. The Nova Scotia Court of Appeal ordered a new trial. The Supreme Court dismissed the appeal.  In delivering the majority judgment, La Forest and Cory JJ. stated:

The right to a trial before an impartial judge is of fundamental importance to our system of justice. Should it be concluded by an appellate court that the words or actions of a trial judge have exhibited bias or demonstrated a reasonable apprehension of bias then a basic right has been breached and the exhibited bias renders the trial unfair.  Generally, the decision reached and the orders made in the course of a trial that is found by a court of appeal to be unfair as a result of bias are void and unenforceable.

[…]

[…] when a court of appeal determines that the trial judge was biased or demonstrated a reasonable apprehension of bias, that finding retroactively renders all the decisions and orders made during the trial void and without effect.

 [paras. 7-8]

[10]                                   The test to be applied in determining whether a decision-maker’s conduct or words demonstrate a reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that consciously or unconsciously, the decision-maker would be motivated by a bias: Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118 (QL) at 394.  In deciding a motion for his recusal in Arsenault-Cameron v. Prince Edward Island, 1999 CanLII 641 (SCC), [1999] 3 S.C.R. 851, [1999] S.C.J. No. 75 (QL), Bastarache J. opined that in an application for recusal based upon bias or reasonable apprehension of bias, the applicant must demonstrate wrongful or inappropriate declarations showing a state of mind that “sways judgment” (para. 5).  I am satisfied that the Provincial Court judge’s opinions regarding conditional sentences as expressed by him to the Crown prosecutor, his rejection of a conditional sentence before having heard from the appellant and his manner of questioning the appellant all demonstrate a reasonable apprehension of bias, if not actual bias, regarding the very issue raised by the appellant – whether a conditional sentence would be appropriate in the circumstances.