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R.D.S.
Appellant
v.
Her Majesty The Queen
Respondent
and
The Women's Legal Education and Action Fund,
the National Organization of Immigrant and Visible
Minority Women of Canada, the African Canadian
Legal Clinic, the Afro-Canadian Caucus of Nova Scotia
and the Congress of Black Women of Canada
Interveners
Indexed as: R. v. S. (R.D.)
File No.: 25063.
1997: March 10; 1997: September 26.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka,
Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR NOVA SCOTIA
Courts -- Judges -- Impartiality -- Reasonable apprehension of bias
--Testimony of the only two witnesses (accused and police officer) at
odds and that of accused accepted -- Police officer white and accused a
black youth -- Oral reasons making reference to police and racism in
general context -- Youth Court Judge's comments not tied to officer
appearing before the Court -- Whether reasonable apprehension of bias.
A white police officer arrested a black
15-year-old who had allegedly interfered with the arrest of another
youth. The accused was charged with unlawfully assaulting a police
officer, unlawfully assaulting a police officer with the intention of
preventing an arrest, and unlawfully resisting a police officer in the
lawful execution of his duty. The police officer and the accused were
the only witnesses and their accounts of the relevant events differed
widely. The Youth Court Judge weighed the evidence and determined that
the accused should be acquitted. While delivering her oral reasons, the
Judge remarked in response to a rhetorical question by the Crown, that
police officers had been known to mislead the court in the past, that
they had been known to overreact particularly with non-white groups, and
that that would indicate a questionable state of mind. She also stated
that her comments were not tied to the police officer testifying before
the court. The Crown challenged these comments as raising a reasonable
apprehension of bias. After the reasons had been given and after an
appeal to the Nova Scotia Supreme Court (Trial Division) had been filed
by the Crown, the Judge issued supplementary reasons which outlined in
greater detail her impressions of the credibility of both witnesses and
the context in which her comments were made. The Crown's appeal was
allowed and a new trial was ordered on the basis that the Judge's
remarks gave rise to a reasonable apprehension of bias. This judgment
was upheld by a majority of the Nova Scotia Court of Appeal. At issue
here is whether the Judge's comments in her reasons gave rise to a
reasonable apprehension of bias.
Held (Lamer C.J. and Sopinka and
Major JJ. dissenting): The appeal should be allowed.
(1) Consideration of Supplementary
Reasons
Per curiam: The supplementary
reasons issued by the Youth Court Judge after the appeal had been filed
could not be taken into account in assessing whether her reasons gave
rise to a reasonable apprehension of bias.
(2) Reasonable Apprehension of Bias
Per Lamer C.J. and La Forest,
Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The courts should be
held to the highest standards of impartiality. Fairness and impartiality
must be both subjectively present and objectively demonstrated to the
informed and reasonable observer. The trial will be rendered unfair if
the words or actions of the presiding judge give rise to a reasonable
apprehension of bias to the informed and reasonable observer. Judges
must be particularly sensitive to the need not only to be fair but also
to appear to all reasonable observers to be fair to all Canadians of
every race, religion, nationality and ethnic origin.
If actual or apprehended bias arises
from a judge's words or conduct, then the judge has exceeded his or her
jurisdiction. This excess of jurisdiction can be remedied by an
application to the presiding judge for disqualification if the
proceedings are still underway, or by appellate review of the judge's
decision. A reasonable apprehension of bias, if it arises, colours the
entire trial proceedings and cannot be cured by the correctness of the
subsequent decision. The mere fact that the judge appears to make proper
findings of credibility on certain issues or comes to the correct result
cannot alleviate the effects of a reasonable apprehension of bias
arising from the judge's other words or conduct. However, if the judge's
words or conduct, viewed in context, do not give rise to a reasonable
apprehension of bias, the findings of the judge will not be tainted, no
matter how troubling the impugned words or actions may be.
The basic interests of justice require
that the appellate courts, notwithstanding their deferential standard of
review in examining factual determinations made by lower courts,
including findings of credibility, retain some scope to review that
determination given the serious and sensitive issues raised by an
allegation of bias.
Impartiality can be described as a
state of mind in which the adjudicator is disinterested in the outcome
and is open to persuasion by the evidence and submissions. In contrast,
bias denotes a state of mind that is in some way predisposed to a
particular result or that is closed with regard to particular issues.
Whether a decision-maker is impartial depends on whether the impugned
conduct gives rise to a reasonable apprehension of bias. Actual bias
need not be established because it is usually impossible to determine
whether the decision-maker approached the matter with a truly biased
state of mind.
The apprehension of bias must be a
reasonable one held by reasonable and right-minded persons, applying
themselves to the question and obtaining thereon the required
information. The test is what would an informed person, viewing the
matter realistically and practically -- and having thought the matter
through -- conclude. This test contains a two-fold objective element:
the person considering the alleged bias must be reasonable and the
apprehension of bias itself must also be reasonable in the circumstances
of the case. Further the reasonable person must be an informed person,
with knowledge of all the relevant circumstances, including the
traditions of integrity and impartiality that form a part of the
background and apprised also of the fact that impartiality is one of the
duties the judges swear to uphold. The reasonable person should also be
taken to be aware of the social reality that forms the background to a
particular case, such as societal awareness and acknowledgement of the
prevalence of racism or gender bias in a particular community. The
jurisprudence indicates that a real likelihood or probability of bias
must be demonstrated and that a mere suspicion is not enough. The
existence of a reasonable apprehension of bias depends entirely on the
facts. The threshold for such a finding is high and the onus of
demonstrating bias lies with the person who is alleging its existence.
The test applies equally to all judges, regardless of their background,
gender, race, ethnic origin, or any other characteristic.
The requirement for neutrality does not
require judges to discount their life experiences. Whether the use of
references to social context is appropriate in the circumstances and
whether a reasonable apprehension of bias arises from particular
statements depends on the facts. A very significant difference exists
between cases in which social context is used to ensure that the law
evolves in keeping with changes in social reality and cases, such as
this one, where social context is apparently being used to assist in
determining an issue of credibility.
Consideration of whether the existence
of anti-black racism in society is a proper subject for judicial notice
would be inappropriate here because an intervener and not the appellant
put forward the argument with respect to judicial notice.
The individualistic nature of a
determination of credibility and its dependence on intangibles such as
demeanour and the manner of testifying requires the judge, as trier of
fact, to be particularly careful and to appear to be neutral. When
making findings of credibility a judge should avoid making any comment
that might suggest that the determination of credibility is based on
generalizations or stereotypes rather than on the specific
demonstrations of truthfulness or untrustworthiness that have come from
the particular witness during the trial. At the commencement of their
testimony all witnesses should be treated equally without regard to
their race, religion, nationality, gender, occupation or other
characteristics. It is only after an individual witness has been tested
and assessed that findings of credibility can be made.
Situations where there is no evidence
linking the generalization to the particular witness might leave the
judge open to allegations of bias on the basis that the credibility of
the individual witness was prejudged according to stereotypical
generalizations. Although the particular generalization might be
well-founded, reasonable and informed people may perceive that the judge
has used this information as a basis for assessing credibility instead
of making a genuine evaluation of the evidence of the particular
witness' credibility.
That judges should avoid making
comments based on generalizations when assessing the credibility does
not lead automatically to a conclusion of reasonable apprehension of
bias. In some limited circumstances, the comments may be appropriate.
The argument that the trial was
rendered unfair for failure to comply with "natural justice"
could not be accepted. Neither the police officer nor the Crown was on
trial.
Per La Forest, L'Heureux-Dubé,
Gonthier and McLachlin JJ.: Judges, while they can never be neutral in
the sense of being purely objective, must strive for impartiality. Their
differing experiences appropriately assist in their decision-making
process so long as those experiences are relevant, are not based on
inappropriate stereotypes, and do not prevent a fair and just
determination based on the facts in evidence.
The apprehension of bias must be a
reasonable one held by reasonable and right-minded persons, applying
themselves to the question and obtaining thereon the required
information. The reasonable person must know and understand the judicial
process, the nature of judging and the community in which the alleged
crime occurred. He or she demands that judges achieve impartiality and
will be properly influenced in their deliberations by their individual
perspectives. Finally, the reasonable person expects judges to undertake
an open-minded, carefully considered and dispassionately deliberate
investigation of the complicated reality of each case before them.
Judicial inquiry into context provides
the requisite background for the interpretation and the application of
the law. An understanding of the context or background essential to
judging may be gained from testimony from expert witnesses, from
academic studies properly placed before the court, and from the judge's
personal understanding and experience of the society in which the judge
lives and works. This process of enlargement is a precondition of
impartiality. A reasonable person, far from being troubled by this
process, would see it as an important aid to judicial impartiality.
The reasonable person approaches the
question of whether there exists a reasonable apprehension of bias with
a complex and contextualized understanding of the issues in the case. He
or she understands the impossibility of judicial neutrality but demands
judicial impartiality. This person is cognizant of the racial dynamics
in the local community, and, as a member of the Canadian community, is
supportive of the principles of equality. Before finding a reasonable
apprehension of bias, the reasonable person would require some clear
evidence that the judge in question had improperly used his or her
perspective in the decision-making process; this flows from the
presumption of impartiality of the judiciary. Awareness of the context
within which a case occurred would not constitute evidence that the
judge was not approaching the case with an open mind fair to all
parties; on the contrary, such awareness is consistent with the highest
tradition of judicial impartiality.
(3) Application of the Test
Per La Forest, L'Heureux-Dubé,
Gonthier and McLachlin JJ.: The oral reasons at issue should be read in
their entirety, and the impugned passages should be construed in light
of the whole of the trial proceedings and in light of all other portions
of the judgment. They indicated that the Youth Court Judge approached
the case with an open mind, used her experience and knowledge of the
community to achieve an understanding of the reality of the case, and
applied the fundamental principle of proof beyond a reasonable doubt.
Her comments were based entirely on the case before her, were made after
a consideration of the conflicting testimony of the two witnesses and in
response to the Crown's submissions, and were entirely supported by the
evidence. In alerting herself to the racial dynamic in the case, she was
simply engaging in the process of contextualized judging which was
entirely proper and conducive to a fair and just resolution of the case
before her. Although the Judge did not make a finding of racism, there
was evidence on which such a finding could be made.
The impugned comments were not
unfortunate, unnecessary, or close to the line. They reflected an
entirely appropriate recognition of the facts in evidence and of the
context within which this case arose -- a context known to the judge and
to any well-informed member of the community.
Per Cory and Iacobucci JJ.: The
Youth Court Judge conducted an acceptable review of all the evidence
before making the impugned comments.
The generalized remarks about a history
of racial tension between police officers and visible minorities were
not linked by the evidence to the actions of the police officer here.
They were worrisome and came very close to the line. Yet, however
troubling when read individually, they were not made in isolation and
must all be read in the context of the whole proceeding, with an
awareness of all the circumstances that a reasonable observer would be
deemed to know. A reasonable, informed person, aware of all the
circumstances, would not conclude that they gave rise to a reasonable
apprehension of bias or that they tainted her earlier findings of
credibility. The high standard for a finding of reasonable apprehension
of bias was not met.
Per Lamer C.J. and Sopinka and
Major JJ. (dissenting): A fair trial is one that is based on the law and
its outcome determined by the evidence, free of bias, real or
apprehended. Evidence showing propensity has been repeatedly rejected.
Trial judges must base their findings on the evidence before them.
Notwithstanding the opportunity to do so, no evidence was introduced
showing that this police officer was racist and that racism motivated
his actions or that he lied.
The Youth Court Judge's statements were
not simply a review of the evidence and her reasons for judgment in
which she was relying on her life experience. Even though a judge's life
experience is an important ingredient in the ability to understanding
human behaviour, to weighing the evidence and to determining
credibility, it is not a substitute for evidence. No evidence supported
the conclusions that the Judge reached. Her comments fell into
stereotyping the police officer. Judges, as arbiters of truth, cannot
judge credibility based on irrelevant witness characteristics. All
witnesses must be placed on equal footing before the court.
What the Judge actually intended by the
impugned statements is irrelevant conjecture. Given the concern for both
the fairness and the appearance of fairness of the trial, the absence of
evidence to support the judgment is an irreparable defect.
Cases Cited
By Cory J.
Applied: Committee
for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R.
369; considered: R. v. Parks (1993), 15 O.R. (3d)
324, leave to appeal denied, [1994] 1 S.C.R. x; Pirbhai Estate v.
Pirbhai, [1987] B.C.J. No. 2685 (QL), leave to appeal denied, [1988]
1 S.C.R. xii; Foto v. Jones (1974), 45 D.L.R. (3d) 43; referred
to: R. v. Wald (1989), 47 C.C.C. (3d) 315; >Newfoundland
Telephone Co. v. Newfoundland (Board of Commissioners of Public
Utilities), [1992] 1 S.C.R. 623; >Idziak
v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; >R.
v. Curragh Inc., [1997] 1 S.C.R. 537; R. v. Gushman,
[1994] O.J. No. 813 (QL); Blanchette
v. C.I.S. Ltd., [1973] S.C.R. 833; >R.
v. W. (R.), [1992] 2 S.C.R. 122; Huerto v. College of
Physicians and Surgeons (1996), 133 D.L.R. (4th) 100; >Valente
v. The Queen, [1985] 2 S.C.R. 673; >R.
v. Généreux, [1992] 1 S.C.R. 259; Liteky v. U.S., 114
S.Ct. 1147 (1994); R. v. Bertram, [1989] O.J. No. 2123 (QL); R.
v. Stark, [1994] O.J. No. 406 (QL); The King v. Sussex Justices,
Ex parte McCarthy, [1924] 1 K.B. 256; R. v. Elrick, [1983]
O.J. No. 515 (QL); R. v. Lin, [1995] B.C.J. No. 982 (QL); R.
v. Camborne Justices, Ex parte Pearce, [1954] 2 All E.R. 850; Metropolitan
Properties Co. v. Lannon, [1969] 1 Q.B. 577; R. v. Gough,
[1993] 2 W.L.R. 883; R. v. Smith & Whiteway Fisheries Ltd.
(1994), 133 N.S.R. (2d) 50; >R.
v. Lavallee, [1990] 1 S.C.R. 852; R. v. Wilson (1996), 29
O.R. (3d) 97; R. v . Glasgow (1996), 93 O.A.C. 67; White
v. The King, [1947] S.C.R. 268; >Brouillard
v. The Queen, [1985] 1 S.C.R. 39; Inquiry pursuant to s.
13(2) of Territorial Court Act, Re, [1990] N.W.T.R. 337; R. v.
Teskey (1995), 167 A.R. 122.
By L'Heureux-Dubé and McLachlin JJ.
Applied: Committee
for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R.
369; referred to: Valente
v. >The
Queen, [1985] 2 S.C.R. 673 ; R. v. >Lippé,
[1991] 2 S.C.R. 114; Ruffo v. >Conseil
de la magistrature, [1995] 4 S.C.R. 267; United States v.
Morgan, 313 U.S. 409 (1941); R. v. Smith & Whiteway
Fisheries Ltd. (1994), 133 N.S.R. (2d) 50; Blanchette
v. C.I.S. Ltd., [1973] S.C.R. 833; >R.
v. Bartle, [1994] 3 S.C.R. 173; R. v. >Lavallee,
[1990] 1 S.C.R. 852; R. v. Parks (1993), 15 O.R. (3d) 324;
>Moge
v. Moge, [1992] 3 S.C.R. 813; R. v. Smith (1991), 109
N.S.R. (2d) 394; Nova Scotia (Minister of Community Services) v.
S.M.S. (1992), 110 N.S.R. (2d) 91; >R.
v. Burns, [1994] 1 S.C.R. 656.
By Major J. (dissenting)
Metropolitan Properties Co. v.
Lannon, [1969] 1 Q.B. 577; Committee
for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R.
369; The
King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B.
256.
Statutes and Regulations Cited
Act to amend the Criminal
Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 18.
Act to amend the Criminal
Code in relation to sexual offences and other offences against the
person and to amend certain other Acts in relation thereto or in
consequence thereof, S.C. 1980-81-82-83, c. 125, s. 5.
Canadian
Charter of Rights and Freedoms, ss. 7, 11(d), 15, 27.
Criminal Law Amendment Act, 1975, S.C. 1974-75-76, c. 93, s.
8.
Authors Cited
Blackstone, Sir William. Commentaries on the Laws of England,
Book III. Oxford: Clarendon Press, 1778.
Canadian Judicial Council. Commentaries on Judicial Conduct.
Cowansville, Que.: Yvon Blais, 1991.
Cardozo, Benjamin N. The Nature of the Judicial Process. New
Haven: Yale University Press, 1921.
Devlin, Richard F. "We Can't Go On Together with Suspicious
Minds: Judicial Bias and Racialized Perspective in R. v. R.D.S."
(1995), 18 Dalhousie L.J. 408.
Nedelsky, Jennifer. "Embodied Diversity and the Challenges to
Law" (1997), 42 McGill L.J. 91.
Nova Scotia. Royal Commission on the Donald Marshall, Jr.,
Prosecution. Royal Commission on the Donald Marshall Jr. Prosecution.
Halifax: The Commission, 1989.
Omatsu, Maryka. "The Fiction of Judicial Impartiality"
(1997), 9 C.J.W.L. 1.
Paciocco, David M., and Lee Stuesser. The Law of Evidence.
Concord, Ont.: Irwin Law, 1996.
APPEAL from a judgment of the Nova
Scotia Court of Appeal (1995), 145 N.S.R. (2d) 284, 418 A.P.R. 284, 102
C.C.C. (3d) 233, 45 C.R. (4th) 361, dismissing an appeal from a judgment
of the Nova Scotia Supreme Court (Trial Division), [1995] N.S.J. No. 184
(QL), allowing an appeal from acquittal by Sparks F.C.J. with oral
reasons December 2, 1994, with supplementary written reasons, [1994]
N.S.J. No. 629 (QL). Appeal allowed, Lamer C.J. and Sopinka and Major JJ.
dissenting.
Burnley A. Jones and Dianne
Pothier, for the appellant.
Robert E. Lutes, Q.C., for the
respondent.
Yola Grant and Carol Allen,
for the interveners the Women's Legal Education and Action Fund and the
National Organization of Immigrant and Visible Minority Women of Canada.
April Burey, for the interveners
the African Canadian Legal Clinic, the Afro-Canadian Caucus of Nova
Scotia and the Congress of Black Women of Canada.
The reasons of Lamer C.J. and Sopinka
and Major JJ. were delivered by
1 MAJOR
J. (dissenting) -- I have read the reasons of Justices L'Heureux-Dubé
and McLachlin and those of Justice Cory and respectfully disagree with
the conclusion they reach.
2 The appellant
(accused) R.D.S. was a young person charged with assault on a peace
officer. At trial, the Crown's only evidence came from the police
officer allegedly assaulted. The appellant testified as the only witness
in his defence. The testimony of the two witnesses differed in material
respects. The trial judge gave judgment immediately after closing
arguments and acquitted the appellant.
3 This appeal should
not be decided on questions of racism but instead on how courts should
decide cases. In spite of the submissions of the appellant and
interveners on his behalf, the case is primarily about the conduct of
the trial. A fair trial is one that is based on the law, the outcome of
which is determined by the evidence, free of bias, real or apprehended.
Did the trial judge here reach her decision on the evidence presented at
the trial or did she rely on something else?
4 In the course of
her judgment the trial judge said:
The Crown says, well, why would the
officer say that events occurred the way in which he has relayed them to
the Court this morning. I am not saying that the Constable has misled
the court, although police officers have been known to do that in the
past. I am not saying that the officer overreacted, but certainly
police officers do overreact, particularly when they are dealing with
non-white groups. That to me indicates a state of mind right there that
is questionable. I believe that probably the situation in this
particular case is the case of a young police officer who overreacted. I
do accept the evidence of [R.D.S.] that he was told to shut up or he
would be under arrest. It seems to be in keeping with the prevalent
attitude of the day.
At any rate, based upon my comments
and based upon all the evidence before the court I have no other choice
but to acquit. [Emphasis added.]
5 In view of the
manner in which this appeal was argued, it is necessary to consider two
points. First, we should consider whether the trial judge in her
reasons, properly instructed herself on the evidence or was an error of
law committed by her. The second, and somewhat intertwined question, is
whether her comments above could cause a reasonable observer to
apprehend bias. The offending comments in the statement are:
(i)"police officers have been
known to [mislead the court] in the past";
(ii)"police officers do overreact,
particularly when they are dealing with non-white groups";
(iii)"[t]hat to me indicates a
state of mind right there that is questionable";
(iv)"[i]t seems to be in keeping
with the prevalent attitude of the day"; and,
(v)"based upon my comments and
based upon all the evidence before the court I have no other choice but
to acquit."
6 The trial judge
stated that "police officers have been known to [mislead the court]
in the past" and that "police officers do overreact,
particularly when they are dealing with non-white groups" and went
on to say "[t]hat to me indicates a state of mind right there that
is questionable." She in effect was saying, "sometimes police
lie and overreact in dealing with non-whites, therefore I have a
suspicion that this police officer may have lied and overreacted in
dealing with this non-white accused." This was stereotyping all
police officers as liars and racists, and applied this stereotype to the
police officer in the present case. The trial judge might be perceived
as assigning less weight to the police officer's evidence because he is
testifying in the prosecution of an accused who is of a different race.
Whether racism exists in our society is not the issue. The issue is
whether there was evidence before the court upon which to base a finding
that this particular police officer's actions were motivated by
racism. There was no evidence of this presented at the trial.
7 Our jurisprudence
has repeatedly prohibited the introduction of evidence to show
propensity. In the present case had the police officer been charged with
assault the trial judge could not have reasoned that as police officers
have been known to mislead the Court in the past that based on that
evidence she rejected this police officers credibility and found him
guilty beyond reasonable doubt.
8 In the same vein,
statistics show that young male adults under the age of 25 are
responsible for more accidents than older drivers. It would be
unacceptable for a court to accept evidence of that fact to find a
defendant liable in negligence yet that is the consequence of the trial
judge's reasoning in this appeal.
9 It is possible to
read the trial judge's reference to the "prevalent attitude of the
day" as meaning her view of the prevalent attitude in society
today. If the trial judge used the "prevalent attitude of
society" towards non-whites as evidence upon which to draw an
inference in this case, she erred, as there were no facts in evidence
from which to draw that inference. It would be stereotypical reasoning
to conclude that, since society is racist, and, in effect, tells
minorities to "shut up," we should infer that this
police officer told this appellant minority youth to "shut
up." This reasoning is flawed.
10 Trial judges
have to base their findings on the evidence before them. It was open to
the appellant to introduce evidence that this police officer was racist
and that racism motivated his actions or that he lied. This was not
done. For the trial judge to infer that based on her general view of the
police or society is an error of law. For this reason there should be a
new trial.
11 In addition to
not being based on the evidence, the trial judge's comments have been
challenged as giving rise to a reasonable apprehension of bias. The test
for finding a reasonable apprehension of bias has challenged courts in
the past. It is interchangeably expressed as a "real danger of
bias," a "real likelihood of bias," a "reasonable
suspicion of bias" and in several other ways. An attempt at a new
definition will not change the test. Lord Denning M.R. captured the
essence of the inquiry in his judgment in Metropolitan Properties Co.
v. Lannon, [1969] 1 Q.B. 577 (C.A.), at p. 599:
[I]n considering whether there was a
real likelihood of bias, the court does not look at the mind of the
justice himself or at the mind of the chairman of the tribunal, or
whoever it may be, who sits in a judicial capacity. It does not look to
see if there was a real likelihood that he would, or did, in fact favour
one side at the expense of the other. The court looks at the impression
which would be given to other people. Even if he was as impartial as
could be, nevertheless if right-minded persons would think that, in the
circumstances, there was a real likelihood of bias on his part, then he
should not sit. And if he does sit, his decision cannot stand: see Reg.
v. Huggins; and Rex v. Sunderland Justices, per
Vaughan Williams L.J. Nevertheless there must appear to be a real
likelihood of bias. Surmise or conjecture is not enough: see Reg. v.
Camborne Justice, Ex parte Pearce, and Reg. v. Nailsworth
Licensing Justices, Ex parte Bird. There must be circumstances from
which a reasonable man would think it likely or probable that the
justice, or chairman, as the case may be, would, or did, favour one side
unfairly at the expense of the other. The court will not inquire whether
he did, in fact, favour one side unfairly. Suffice it that reasonable
people might think he did. The reason is plain enough. Justice must be
rooted in confidence: and confidence is destroyed when right-minded
people go away thinking: "The judge was biased."
See also Committee
for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R.
369; The
King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B.
256.
12 The appellant
and the interveners argued that the trial judge's statements were simply
a review of the evidence and were her reasons for judgment. They said
she was relying on her life experience and to deny that is to deny
reality. I disagree.
13 The life
experience of this trial judge, as with all trial judges, is an
important ingredient in the ability to understand human behaviour, to
weigh the evidence, and to determine credibility. It helps in making a
myriad of decisions arising during the course of most trials. It is of
no value, however, in reaching conclusions for which there is no
evidence. The fact that on some other occasions police officers have
lied or overreacted is irrelevant. Life experience is not a substitute
for evidence. There was no evidence before the trial judge to support
the conclusions she reached.
14 The trial judge
could not decide this case based on what some police officers did in the
past without deciding that all police officers are the same. As stated,
the appellant was entitled to call evidence of the police officer's
conduct to show that there was in fact evidence to support either his
bias or racism. No such evidence was called. The trial judge presumably
called upon her life experience to decide the issue. This she was not
entitled to do.
15 The bedrock of
our jurisprudence is the adversary system. Criminal prosecutions are
less adversarial because of the Crown's duty to present all the evidence
fairly. The system depends on each side's producing facts by way of
evidence from which the court decides the issues. Our system, unlike
some others, does not permit a judge to become an independent
investigator to seek out the facts.
16 Canadian courts
have, in recent years, criticized the stereotyping of people into what
is said to be predictable behaviour patterns. If a judge in a sexual
assault case instructed the jury or him- or herself that because the
complainant was a prostitute he or she probably consented, or that
prostitutes are likely to lie about such things as sexual assault, that
decision would be reversed. Such presumptions have no place in a system
of justice that treats all witnesses equally. Our jurisprudence
prohibits tying credibility to something as irrelevant as gender,
occupation or perceived group predisposition.
17 Similarly, we
have eliminated the requirement for corroboration of the complainant's
evidence. The absolute requirement of corroboration for particular
sexual offences and the lesser requirement of a warning to the jury
about relying on the victim's uncorroborated testimony have been
abolished: see Criminal Law Amendment Act, 1975, S.C. 1974-75-76,
c. 93, s. 8, and S.C. 1980-81-82-83, c. 125, s. 5. Also eliminated is
the need for corroboration in cases where a prosecution is based on the
unsworn evidence of children: see S.C. 1987, c. 24, s. 18. The
elimination of corroboration shows the present evolution away from
stereotyping various classes of witnesses as inherently unreliable.
18 It can hardly be
seen as progress to stereotype police officer witnesses as likely to lie
when dealing with non-whites. This would return us to a time in the
history of the Canadian justice system that many thought had past. This
reasoning, with respect to police officers, is no more legitimate than
the stereotyping of women, children or minorities.
19 In my opinion
the comments of the trial judge fall into stereotyping the police
officer. She said, among other things, that police officers have been
known to mislead the courts, and that police officers overreact when
dealing with non-white groups. She then held, in her evaluation of this
particular police officer's evidence, that these factors led her to
"a state of mind right there that is questionable". The trial
judge erred in law by failing to base her conclusions on evidence.
20 Judges, as
arbiters of truth, cannot judge credibility based on irrelevant witness
characteristics. All witnesses must be placed on equal footing before
the court.
21 The trial judge
concluded the impugned part of her reasons with the following: "[a]t
any rate, based upon my comments and based upon all the evidence before
the court I have no other choice but to acquit." What did she mean
by basing her judgment, in part, upon her own comments? Did she mean
based on her stereotyping of police officers? Or, did she mean based on
her comments analysing the evidence of the parties? Based on the trial
record what is clear is that the trial judge did not reach her
conclusion on any facts presented at the trial.
22 It is irrelevant
conjecture as to what the trial judge actually intended by these
statements. I agree with my colleague Cory J., that there are other
plausible explanations of these impugned comments. It may be that all of
her remarks were merely intended as a hypothetical response to the
Crown's suggestion that the police officer had no reason to lie, and
therefore innocuous. However, we are concerned with both the fairness
and the appearance of fairness of the trial, and the absence of evidence
to support the judgment is an irreparable defect.
23 I agree with the
approach taken by Cory J. with respect to the nature of bias and the
test to be used to determine if the words or actions of a judge give
rise to apprehension of bias. However, I come to a different conclusion
in the application of the test to the words of the trial judge in this
case. It follows that I disagree with the approach to reasonable
apprehension of bias put forward by Justices L'Heureux-Dubé and
McLachlin.
24 The error of law
that I attribute to the trial judge's assessment of the evidence or lack
of evidence is sufficiently serious that a new trial is ordered.
25 In the result, I
would uphold the disposition of Flinn J.A. in the Court of Appeal
(1995), 145 N.S.R. (2d) 284, and dismiss the appeal.
The reasons of La Forest and Gonthier
JJ. were delivered by
26 GONTHIER
J. -- I have had the benefit of the reasons of Justice Cory, the joint
reasons of Justices L'Heureux-Dubé and McLachlin and the reasons of
Justice Major. I agree with Cory J. and L'Heureux-Dubé and McLachlin JJ.
as to the disposition of the appeal and with their exposition of the law
on bias and impartiality and the relevance of context. However, I am in
agreement with and adopt the joint reasons of L'Heureux-Dubé and
McLachlin JJ. in their treatment of social context and the manner in
which it may appropriately enter the decision-making process as well as
their assessment of the trial judge's reasons and comments in the
present case.
The following are the reasons delivered
by
L'HEUREUX-DUBÉ
AND MCLACHLIN
JJ. --
I. Introduction
27 We have read the
reasons of our colleague, Justice Cory, and while we agree that this
appeal must be allowed, we differ substantially from him in how we reach
that outcome. As a result, we find it necessary to write brief
concurring reasons.
28 We endorse Cory
J.'s comments on judging in a multicultural society, the importance of
perspective and social context in judicial decision-making, and the
presumption of judicial integrity. However, we approach the test for
reasonable apprehension of bias and its application to the case at bar
somewhat differently fromour colleague.
29 In our view, the
test for reasonable apprehension of bias established in the
jurisprudence is reflective of the reality that while judges can never
be neutral, in the sense of purely objective, they can and must strive
for impartiality. It therefore recognizes as inevitable and appropriate
that the differing experiences of judges assist them in their
decision-making process and will be reflected in their judgments, so
long as those experiences are relevant to the cases, are not based on
inappropriate stereotypes, and do not prevent a fair and just
determination of the cases based on the facts in evidence.
30 We find that on
the basis of these principles, there is no reasonable apprehension of
bias in the case at bar. Like Cory J. we would, therefore, overturn the
findings by the Nova Scotia Supreme Court (Trial Division) and the
majority of the Nova Scotia Court of Appeal that a reasonable
apprehension of bias arises in this case, and restore the acquittal of
R.D.S. This said, we disagree with Cory J.'s position that the comments
of Judge Sparks were unfortunate, unnecessary, or close to the line.
Rather, we find them to reflect an entirely appropriate recognition of
the facts in evidence in this case and of the context within which this
case arose -- a context known to Judge Sparks and to any well-informed
member of the community.
II. The Test for Reasonable
Apprehension of Bias
31 The test for
reasonable apprehension of bias is that set out by de Grandpré J. in Committee
for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R.
369. Though he wrote dissenting reasons, de Grandpré J.'s
articulation of the test for bias was adopted by the majority of the
Court, and has been consistently endorsed by this Court in the
intervening two decades: see, for example, Valente
v. >The
Queen, [1985] 2 S.C.R. 673; R. v. >Lippé,
[1991] 2 S.C.R. 114; Ruffo v. >Conseil
de la magistrature, [1995] 4 S.C.R. 267. De Grandpré J. stated,
at pp. 394-95:
. . . the apprehension of bias must be
a reasonable one, held by reasonable and right-minded persons, applying
themselves to the question and obtaining thereon the required
information.... [T]hat test is "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."
The grounds for this apprehension must,
however, be substantial and I ... refus[e] to accept the suggestion that
the test be related to the "very sensitive or scrupulous
conscience".
32 As Cory J. notes at
para. 92, the scope and stringency of the duty of fairness articulated
by de Grandpré depends largely on the role and function of the tribunal
in question. Although judicial proceedings will generally be bound by
the requirements of natural justice to a greater degree than will
hearings before administrative tribunals, judicial decision-makers, by
virtue of their positions, have nonetheless been granted considerable
deference by appellate courts inquiring into the apprehension of bias.
This is because judges "are assumed to be [people] of conscience
and intellectual discipline, capable of judging a particular controversy
fairly on the basis of its own circumstances": United States v.
Morgan, 313 U.S. 409 (1941), at p. 421. The presumption of
impartiality carries considerable weight, for as Blackstone opined at p.
361 in Commentaries on the Laws of England, Book III, cited at
footnote 49 in Richard F. Devlin, "We Can't Go On Together with
Suspicious Minds: Judicial Bias and Racialized Perspective in R. v.
R.D.S." (1995), 18 Dalhousie L.J. 408, at p. 417, "the
law will not suppose a possibility of bias or favour in a judge, who is
already sworn to administer impartial justice, and whose authority
greatly depends upon that presumption and idea". Thus, reviewing
courts have been hesitant to make a finding of bias or to perceive a
reasonable apprehension of bias on the part of a judge, in the absence
of convincing evidence to that effect: R. v. Smith & Whiteway
Fisheries Ltd. (1994), 133 N.S.R. (2d) 50 (C.A.), at pp. 60-61.
33 Notwithstanding
the strong presumption of impartiality that applies to judges, they will
nevertheless be held to certain stringent standards regarding bias
--"a reasonable apprehension that the judge might not act in an
entirely impartial manner is ground for disqualification": Blanchette
v. C.I.S. Ltd., [1973] S.C.R. 833, at pp. 842-43.
34 In order to
apply this test, it is necessary to distinguish between the impartiality
which is required of all judges, and the concept of judicial neutrality.
The distinction we would draw is that reflected in the insightful words
of Benjamin N. Cardozo in The Nature of the Judicial Process
(1921), at pp. 12-13 and 167, where he affirmed the importance of
impartiality, while at the same time recognizing the fallacy of judicial
neutrality:
There is in each of us a stream of
tendency, whether you choose to call it philosophy or not, which gives
coherence and direction to thought and action. Judges cannot escape that
current any more than other mortals. All their lives, forces which they
do not recognize and cannot name, have been tugging at them -- inherited
instincts, traditional beliefs, acquired convictions; and the resultant
is an outlook on life, a conception of social needs.... In this mental
background every problem finds its setting. We may try to see things as
objectively as we please. None the less, we can never see them with any
eyes except our own.
...
Deep below consciousness are other
forces, the likes and the dislikes, the predilections and the
prejudices, the complex of instincts and emotions and habits and
convictions, which make the [person], whether he [or she] be litigant or
judge.
35 Cardozo
recognized that objectivity was an impossibility because judges, like
all other humans, operate from their own perspectives. As the Canadian
Judicial Council noted in Commentaries on Judicial Conduct
(1991), at p. 12, "[t]here is no human being who is not the product
of every social experience, every process of education, and every human
contact". What is possible and desirable, they note, is
impartiality:
...the wisdom required of a judge is to
recognize, consciously allow for, and perhaps to question, all the
baggage of past attitudes and sympathies that fellow citizens are free
to carry, untested, to the grave.
True impartiality does not require that
the judge have no sympathies or opinions; it requires that the judge
nevertheless be free to entertain and act upon different points of view
with an open mind.
III. The Reasonable Person
36 The presence or
absence of an apprehension of bias is evaluated through the eyes of the
reasonable, informed, practical and realistic person who considers the
matter in some detail (Committee
for Justice and Liberty, supra.) The person postulated is not
a "very sensitive or scrupulous" person, but rather a
right-minded person familiar with the circumstances of the case.
37 It follows that
one must consider the reasonable person's knowledge and understanding of
the judicial process and the nature of judging as well as of the
community in which the alleged crime occurred.
A. The Nature of Judging
38 As discussed
above, 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.
39 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. As David M.
Paciocco and Lee Stuesser write in their book The Law of Evidence
(1996), at p. 277:
In general, the trier of fact is
entitled simply to apply common sense and human experience in
determining whether evidence is credible and in deciding what use, if
any, to make of it in coming to its finding of fact. [Emphasis in
original.]
40 At the same
time, where the matter is one of identifying and applying the law to the
findings of fact, it must be the law that governs and not a judge's
individual beliefs that may conflict with the law. Further,
notwithstanding that their own insights into human nature will properly
play a role in making findings of credibility or factual determinations,
judges must make those determinations only after being equally open to,
and considering the views of, all parties before them. The reasonable
person, through whose eyes the apprehension of bias is assessed, expects
judges to undertake an open-minded, carefully considered, and
dispassionately deliberate investigation of the complicated reality of
each case before them.
41 It is axiomatic
that all cases litigated before judges are, to a greater or lesser
degree, complex. There is more to a case than who did what to whom, and
the questions of fact and law to be determined in any given case do not
arise in a vacuum. Rather, they are the consequence of numerous factors,
influenced by the innumerable forces which impact on them in a
particular context. Judges, acting as finders of fact, must inquire into
those forces. In short, they must be aware of the context in which the
alleged crime occurred.
42 Judicial inquiry
into the factual, social and psychological context within which
litigation arises is not unusual. Rather, a conscious, contextual
inquiry has become an accepted step towards judicial impartiality. In
that regard, Professor Jennifer Nedelsky's "Embodied Diversity and
the Challenges to Law" (1997), 42 McGill L.J. 91, at p. 107,
offers the following comment:
What makes it possible for us to
genuinely judge, to move beyond our private idiosyncracies and
preferences, is our capacity to achieve an "enlargement of
mind". We do this by taking different perspectives into account.
This is the path out of the blindness of our subjective private
conditions. The more views we are able to take into account, the less
likely we are to be locked into one perspective .... It is the capacity
for "enlargement of mind" that makes autonomous, impartial
judgment possible.
43 Judicial inquiry
into context provides the requisite background for the interpretation
and the application of the law. For example, in a case involving alleged
police misconduct in denying an accused's right to counsel, this Court
inquired not simply into whether the accused had been read their Charter
rights, but also used a contextual approach to ensure that the
purpose of the constitutionally protected right was fulfilled: >R.
v. Bartle, [1994] 3 S.C.R. 173. The Court, placing itself in the
position of the accused, asked how the accused would have experienced
and responded to arrest and detention. Against this background, the
Court went on to determine what was required to make the right to
counsel truly meaningful. This inquiry provided the Court with a larger
picture, which was in turn conducive to a more just determination of the
case.
44 An understanding of
the context or background essential to judging may be gained from
testimony from expert witnesses in order to put the case in context: R.
v. >Lavallee,
[1990] 1 S.C.R. 852, R. v. Parks (1993), 15 O.R. (3d) 324
(C.A.), and >Moge
v. Moge, [1992] 3 S.C.R. 813, from academic studies properly
placed before the Court; and from the judge's personal understanding and
experience of the society in which the judge lives and works. This
process of enlargement is not only consistent with impartiality; it may
also be seen as its essential precondition.
45 A reasonable person
far from being troubled by this process, would see it as an important
aid to judicial impartiality.
B. The Nature of the Community
46 The reasonable
person, identified by de Grandpré J. in Committee
for Justice and Liberty, supra, is an informed and
right-minded member of the community, a community which, in Canada,
supports the fundamental principles entrenched in the Constitution by
the Canadian
Charter of Rights and Freedoms. Those fundamental principles
include the principles of equality set out in s. 15 of the Charter
and endorsed in nation-wide quasi-constitutional provincial and federal
human rights legislation. The reasonable person must be taken to be
aware of the history of discrimination faced by disadvantaged groups in
Canadian society protected by the Charter's equality provisions.
These are matters of which judicial notice may be taken. In Parks,
supra, at p. 342, Doherty J.A., did just this, stating:
Racism, and in particular anti-black
racism, is a part of our community's psyche. A significant segment of
our community holds overtly racist views. A much larger segment
subconsciously operates on the basis of negative racial stereotypes.
Furthermore, our institutions, including the criminal justice system,
reflect and perpetuate those negative stereotypes.
47 The reasonable
person is not only a member of the Canadian community, but also, more
specifically, is a member of the local communities in which the case at
issue arose (in this case, the Nova Scotian and Halifax communities).
Such a person must be taken to possess knowledge of the local population
and its racial dynamics, including the existence in the community of a
history of widespread and systemic discrimination against black and
aboriginal people, and high profile clashes between the police and the
visible minority population over policing issues: Royal Commission on
the Donald Marshall Jr. Prosecution (1989); R. v. Smith (1991),
109 N.S.R. (2d) 394 (Co. Ct.). The reasonable person must thus be deemed
to be cognizant of the existence of racism in Halifax, Nova Scotia. It
follows that judges may take notice of actual racism known to exist in a
particular society. Judges have done so with respect to racism in Nova
Scotia. In Nova Scotia (Minister of Community Services) v. S.M.S. (1992),
110 N.S.R. (2d) 91 (Fam. Ct.), it was stated at p. 108:
[Racism] is a pernicious reality. The
issue of racism existing in Nova Scotia has been well documented in the
Marshall Inquiry Report (sub. nom. Royal Commission on the Donald
Marshall, Jr., Prosecution). A person would have to be stupid,
complacent or ignorant not to acknowledge its presence, not only
individually, but also systemically and institutionally.
48 We conclude that
the reasonable person contemplated by de Grandpré J., and endorsed by
Canadian courts is a person who approaches the question of whether there
exists a reasonable apprehension of bias with a complex and
contextualized understanding of the issues in the case. The reasonable
person understands the impossibility of judicial neutrality, but demands
judicial impartiality. The reasonable person is cognizant of the racial
dynamics in the local community, and, as a member of the Canadian
community, is supportive of the principles of equality.
49 Before
concluding that there exists a reasonable apprehension of bias in the
conduct of a judge, the reasonable person would require some clear
evidence that the judge in question had improperly used his or her
perspective in the decision-making process; this flows from the
presumption of impartiality of the judiciary. There must be some
indication that the judge was not approaching the case with an open mind
fair to all parties. Awareness of the context within which a case
occurred would not constitute such evidence; on the contrary, such
awareness is consistent with the highest tradition of judicial
impartiality.
IV. Application of the Test to the
Facts
50 In assessing
whether a reasonable person would perceive the comments of Judge Sparks
to give rise to a reasonable apprehension of bias, it is important to
bear in mind that the impugned reasons were delivered orally. As
Professor Devlin puts it in "We Can't Go On Together with
Suspicious Minds: Judicial Bias and Racialized Perspective in R. v.
R.D.S.", supra, at p. 414:
Trial judges have a heavy workload that
allows little time for meticulously thought-through reasoning. This is
particularly true when decisions are delivered orally immediately after
counsel have finished their arguments.
(See also >R.
v. Burns, [1994] 1 S.C.R. 656, at p. 664.)
It follows that for the purposes of
this appeal, the oral reasons issued by Judge Sparks should be read in
their entirety, and the impugned passages should be construed in light
of the whole of the trial proceedings and in light of all other portions
of the judgment.
51 Judge Sparks was
faced with contradictory testimony from the only two witnesses, the
appellant R.D.S., and Constable Stienburg. Both testified as to the
events that occurred and were subjected to cross-examination. As trier
of fact, Judge Sparks was required to assess their testimony, and to
determine whether or not, on the evidence before her, she had a
reasonable doubt as to the guilt of the appellant R.D.S. It is evident
in the transcript that Judge Sparks proceeded to do just that.
52 Judge Sparks
briefly summarized the contradictory evidence offered by the two
witnesses, and then made several observations about credibility. She
noted that R.D.S. testified quite candidly, and with considerable
detail. She remarked that contrary to the testimony of Constable
Stienburg, it was the evidence of R.D.S. that when he arrived on the
scene on his bike, his cousin was handcuffed and not struggling in any
way. She found the level of detail that R.D.S. provided to have "a
ring of truth", and found him to be "a rather honest young
boy". In the end, while Judge Sparks specifically noted that she
did not accept all the evidence given by R.D.S., she nevertheless found
him to have raised a reasonable doubt by raising queries in her mind as
to what actually occurred.
53 It is important
to note that having already found R.D.S. to be credible, and having
accepted a sufficient portion of his evidence to leave her with a
reasonable doubt as to his guilt, Judge Sparks necessarily disbelieved
at least a portion of the conflicting evidence of Constable Stienburg.
At that point, Judge Sparks made reference to the submissions of the
Crown that "there's absolutely no reason to attack the credibility
of the officer", and then addressed herself to why there might, in
fact, be a reason to attack the credibility of the officer in this case.
It is in this context that Judge Sparks made the statements which have
prompted this appeal:
The Crown says, well, why would the
officer say that events occurred the way in which he has relayed them to
the Court this morning. I am not saying that the Constable has misled
the court, although police officers have been known to do that in the
past. I am not saying that the officer overreacted, but certainly police
officers do overreact, particularly when they are dealing with non-white
groups. That to me indicates a state of mind right there that is
questionable. I believe that probably the situation in this particular
case is the case of a young police officer who overreacted. I do accept
the evidence of [R.D.S.] that he was told to shut up or he would be
under arrest. It seems to be in keeping with the prevalent attitude of
the day.
At any rate, based upon my comments and
based upon all the evidence before the court I have no other choice but
to acquit.
54 These remarks do
not support the conclusion that Judge Sparks found Constable Stienburg
to have lied. In fact, Judge Sparks did quite the opposite. She noted
firstly, that she was not saying Constable Stienburg had misled
the court, although that could be an explanation for his evidence. She
then went on to remark that she was not saying that Constable
Stienburg had overreacted, though she was alive to that possibility
given that it had happened with police officers in the past, and in
particular, it had happened when police officers were dealing with
non-white groups. Finally, Judge Sparks concluded that, though she was
not willing to say that Constable Stienburg did overreact, it was her
belief that he probably overreacted. And, in support of that
finding, she noted that she accepted the evidence of R.D.S. that
"he was told to shut up or he would be under arrest".
55 At no time did
Judge Sparks rule that the probable overreaction by Constable Stienburg
was motivated by racism. Rather, she tied her finding of probable
overreaction to the evidence that Constable Stienburg had threatened to
arrest the appellant R.D.S. for speaking to his cousin. At the same
time, there was evidence capable of supporting a finding of racially
motivated overreaction. At an earlier point in the proceedings, she had
accepted the evidence that the other youth arrested that day, was
handcuffed and thus secured when R.D.S. approached. This constitutes
evidence which could lead one to question why it was necessary for both
boys to be placed in choke holds by Constable Stienburg, purportedly to
secure them. In the face of such evidence, we respectfully disagree with
the views of our colleagues Cory and Major JJ. that there was no
evidence on which Judge Sparks could have found "racially
motivated" overreaction by the police officer.
56 While it seems
clear that Judge Sparks did not in fact relate the officer's
probable overreaction to the race of the appellant R.D.S., it should be
noted that if Judge Sparks had chosen to attribute the behaviour
of Constable Stienburg to the racial dynamics of the situation, she
would not necessarily have erred. As a member of the community, it was
open to her to take into account the well-known presence of racism in
that community and to evaluate the evidence as to what occurred against
that background.
57 That Judge
Sparks recognized that police officers sometimes overreact when
dealing with non-white groups simply demonstrates that in making her
determination in this case, she was alive to the well-known racial
dynamics that may exist in interactions between police officers and
visible minorities. As found by Freeman J.A. in his dissenting judgment
at the Court of Appeal (1995), 145 N.S.R. (2d) 284, at p. 294:
The case was racially charged, a
classic confrontation between a white police officer representing the
power of the state and a black youth charged with an offence. Judge
Sparks was under a duty to be sensitive to the nuances and implications,
and to rely on her own common sense which is necessarily informed by her
own experience and understanding.
58 Given these
facts, the question is whether a reasonable and right-minded person,
informed of the circumstances of this case, and knowledgeable about the
local community and about Canadian Charter values, would perceive
that the reasons of Judge Sparks would give rise to a reasonable
apprehension of bias. In our view, they would not. The clear evidence of
prejudgment required to sustain a reasonable apprehension of bias is
nowhere to be found.
59 Judge Sparks'
oral reasons show that she approached the case with an open mind, used
her experience and knowledge of the community to achieve an
understanding of the reality of the case, and applied the fundamental
principle of proof beyond a reasonable doubt. Her comments were based
entirely on the case before her, were made after a consideration of the
conflicting testimony of the two witnesses and in response to the
Crown's submissions, and were entirely supported by the evidence. In
alerting herself to the racial dynamic in the case, she was simply
engaging in the process of contextualized judging which, in our view,
was entirely proper and conducive to a fair and just resolution of the
case before her.
V. Conclusion
60 In the result,
we agree with Cory J. as to the disposition of this case. We would allow
the appeal, overturn the findings of the Nova Scotia Supreme Court
(Trial Division) and the majority of the Nova Scotia Court of Appeal,
and restore the acquittal of the appellant R.D.S.
The judgment of Cory and Iacobucci JJ.
was delivered by
61 CORY
J. -- In this appeal, it must be determined whether a reasonable
apprehension of bias arises from comments made by the trial judge in
providing her reasons for acquitting the accused.
I. Facts
62 R.D.S. is an
African-Canadian youth. When he was 15 years of age he was charged with
three offences: unlawfully assaulting Constable Donald Stienburg;
unlawfully assaulting Constable Stienburg with the intention of
preventing the arrest of N.R.; and unlawfully resisting Constable
Stienburg in the lawful execution of his duty.
63 The Crown
proceeded with the charges by way of summary conviction. There were only
two witnesses at the trial: R.D.S. himself and Constable Stienburg.
Their accounts of the relevant events differed widely. The credibility
of these witnesses would determine the outcome of the charges.
A. Constable Stienburg's Evidence
64 Constable
Stienburg testified that he was in his police cruiser with his partner
when a radio transmission alerted them that other officers were in
pursuit of a stolen van. In the car was a "ride-along", Leslie
Lane, who was unable to testify at the trial. The occupants of the
stolen van were described as "non-white" youths. When
Constable Stienburg and his partner arrived at the designated area they
saw two black youths running across the street in front of them.
Constable Stienburg detained one of the individuals, N.R., while his
partner pursued the other. He testified that there were a number of
other people standing around at the time.
65 N.R. was
detained outside the police car since the "ride along" was in
the back seat. While Constable Stienburg was standing by the side of the
road with N.R., the accused, R.D.S., came towards Constable Stienburg on
his bicycle. Constable Stienburg testified that R.D.S. ran into his
legs, and while still on the bicycle, yelled at him and pushed him.
R.D.S. was then arrested for interfering with the arrest of N.R., and
Constable Stienburg called for back-up. Constable Stienburg stated that
he put both R.D.S. and N.R. in "a neck restraint". When R.D.S.
was finally brought to the police station, he was read his rights, and
charged with the three offences.
66 In
cross-examination, it was suggested to Constable Stienburg that R.D.S.
had been overcharged. It was pointed out that R.D.S. had no prior record
and it was suggested, although not particularly clearly, that R.D.S. had
been singled out because he was black.
B. Testimony of R.D.S.
67 R.D.S. testified
that he remembered that the weather on the particular day was misty and
humid. While riding his bike from his grandmother's to his mother's
house he saw the police car and the crowd standing beside it. A friend
told him that his cousin N.R. had been arrested. R.D.S. approached the
crowd, and stopped his bike when he saw N.R. and the officer. R.D.S.
then tried to talk to N.R. to ask him what had happened and to find out
if he should tell N.R.'s mother. Constable Stienburg told him:
"Shut up, shut up, or you'll be under arrest too". When R.D.S.
continued to ask N.R. if he should call his mother, Constable Stienburg
arrested R.D.S. and put him in a choke hold. R.D.S. indicated that he
could not breathe, and that he heard a woman tell the officer to
"Let that kid go . . . ." He also heard her ask for his phone
number. He could not talk so N.R. gave the number to her. R.D.S.
indicated that the crowd standing around were all "little
kids" under the age of 12. He denied that he ran into anyone or
that he intended to run into anyone on his bike. He also testified that
his hands remained on the handlebars, and he did not push the officer.
68 In
cross-examination, he indicated that the reason he approached the crowd
was because he was "being nosey". He remembered that N.R. was
handcuffed when he arrived. Both R.D.S. and N.R. were placed in a choke
hold at the same time. He repeated his denial that he touched the
officer either with his bicycle or his hands. He also denied that he
said anything to Constable Stienburg prior to his arrest. He indicated
that all his questions were directed to N.R.
C. History of Proceedings
69 In Youth Court,
Judge Sparks weighed the evidence of the two witnesses and determined
that R.D.S. should be acquitted. In her oral reasons, she made comments
which were challenged as raising a reasonable apprehension of bias. They
are the subject of this appeal. After the reasons had been given and an
appeal to the Nova Scotia Supreme Court (Trial Division) had been filed
by the Crown, Judge Sparks issued supplementary reasons which outlined
in greater detail her impressions of the credibility of both witnesses
and the context in which her comments were made.
70 In the Trial
Division, Glube C.J.S.C., sitting as summary conviction appeal judge,
allowed the Crown's appeal. She held in oral reasons that a new trial
was warranted on the basis that the remarks of Judge Sparks gave rise to
a reasonable apprehension of bias. This decision was upheld in the Nova
Scotia Court of Appeal by Flinn J.A. and Pugsley J.A., Freeman J.A.
dissenting.
II. Judgments Below
A. Youth Court
71 In her oral
reasons, Judge Sparks reviewed the details of Constable Stienburg's
testimony, and noted that R.D.S.'s evidence was directly opposed to it.
In describing R.D.S.'s testimony, she observed that she was impressed
with his clear recollection of the weather conditions on that day, and
his candour in pointing out that he was simply being nosey in
approaching the crowd. She also noted that his description of being
placed in the choke hold was vivid. R.D.S. stated clearly that when he
was placed in the choke hold, he could not speak and had difficulty
breathing. In fact, he was unable to respond when a woman asked him for
his phone number so she could notify his mother.
72 The Youth Court
Judge paid particular attention to R.D.S.'s testimony that N.R. was
handcuffed when R.D.S. arrived on the scene. This aspect of R.D.S.'s
testimony suggested that N.R. was not a threat to the officer.
Significantly, Constable Stienburg did not mention that N.R. was
handcuffed, and gave the court the distinct impression that he had
difficulty restraining N.R. In Judge Sparks' view, R.D.S.'s testimony
that N.R. was handcuffed had "a ring of truth" to it, which
raised questions in her mind about the divergence between R.D.S.'s
evidence and the evidence of Constable Stienburg on this point.
73 In general,
Judge Sparks described R.D.S's demeanour as "positive", even
though he was not particularly articulate. She found him to be a
"rather honest young boy". In particular, she was struck by
his openness in acknowledging his own "nosiness" and by his
surprise at the hostility of the police officer. Judge Sparks indicated
that she was not saying that she accepted everything that R.D.S. said,
but noted that "certainly he has raised a doubt in my mind".
She still had queries about "what actually transpired on the
afternoon of October the 17th". As a result, she concluded that the
Crown had not discharged its evidentiary burden to prove all the
elements of the offence beyond a reasonable doubt.
74 She concluded
her reasons with the controversial remarks that gave rise to this
appeal. They are as follows:
The Crown says, well, why would the
officer say that events occurred the way in which he has relayed them to
the Court this morning. I am not saying that the Constable has misled
the court, although police officers have been known to do that in the
past. I am not saying that the officer overreacted, but certainly police
officers do overreact, particularly when they are dealing with non-white
groups. That to me indicates a state of mind right there that is
questionable. I believe that probably the situation in this particular
case is the case of a young police officer who overreacted. I do accept
the evidence of [R.D.S.] that he was told to shut up or he would be
under arrest. It seems to be in keeping with the prevalent attitude of
the day.
At any rate, based upon my comments and
based upon all the evidence before the court I have no other choice but
to acquit.
In conclusion, she agreed with the
defence counsel that the accused had been overcharged, and that the
first two counts duplicated each other. However, nothing turned on this
since she dismissed all three charges.
B. Nova Scotia Supreme
Court (Trial Division), [1995] N.S.J. No. 184 (QL)
75 On appeal, Glube
C.J.S.C. expressed the view that she could not consider the
supplementary reasons provided by the Youth Court Judge. The decision
was, in her view, made in the oral reasons at the original trial, and
the supplementary reasons did not form the basis for the Crown's appeal.
If Judge Sparks had intended to issue additional reasons, she should
have indicated this to counsel either at the trial or shortly
thereafter. Both parties agreed that Judge Sparks was functus officio
when she issued her supplementary reasons, and that they could not be
considered. Glube C.J.S.C. indicated that her own review of the case law
supported this conclusion.
76 Glube C.J.S.C.
then considered the allegations of actual and apprehended bias made by
the Crown on the basis of Judge Sparks' final remarks in her oral
reasons. She rejected the defence's argument that there is no appeal on
questions of fact and summarized the general principles pertaining to
appellate review of those findings. She observed, at para. 17, that a
Crown's appeal from an acquittal will only succeed "where the
verdict is unreasonable or not supported by the evidence".
77 She expressed
the view that if a reasonable apprehension of bias arises, the verdict
would not be supported by the evidence. Relying on R. v. Wald
(1989), 47 C.C.C. (3d) 315 (Alta. C.A.), she indicated that the
entitlement to an impartial decision-maker applies to the Crown as well
as the accused. The principles of fundamental justice "includ[e]
natural justice and a duty to act fairly" (para. 21). These
principles impose a duty on the decision-maker to be and to appear to be
impartial. If these principles apply to administrative tribunals, they
must apply even more to courts.
78 Glube C.J.S.C.
found nothing in the transcript of the hearing itself that would give
rise to an impression that Judge Sparks was biased. Furthermore, if the
reasons of Judge Sparks had ended with her conclusion that the Crown had
not satisfied its burden of proof, there would be no basis for the
appeal. Judge Sparks had made clear findings of credibility that
favoured the accused. Unfortunately, however, she went on and made the
impugned comments. Glube C.J.S.C. was of the view that there was no
basis in the evidence for Judge Sparks' statements. In particular, there
was no evidence of the "prevalent attitude of the day" (para.
24). She stated at para. 25 that "judges must be extremely careful
to avoid expressing views which do not form part of the evidence".
79 She found that
the test for reasonable apprehension of bias is an objective one, based
on what the reasonable, right-minded person with knowledge of the facts
would conclude. In her view, the reasonable person would conclude that
there was a reasonable apprehension of bias on the part of Judge Sparks,
in spite of her thorough review of the facts and her findings of
credibility. As a result, a new trial was warranted.
C. Court of Appeal
(1995), 145 N.S.R. (2d) 284
(i) Flinn J.A. (Pugsley
J.A. concurring)
80 Flinn J.A. noted
that the Crown can only appeal a summary conviction acquittal on a
question of law with leave of the court. If the summary conviction
appeal court judge made no error of law, then there is no appeal from
her decision. He then rejected the accused's argument that Glube C.J.S.C.
had improperly reexamined and redetermined issues of credibility. Since
her decision was based on reasonable apprehension of bias, she did not
err in law in declining to defer to the trial judge's findings.
81 Flinn J.A.
reviewed the test for reasonable apprehension of bias. He concluded that
bias reflects the inability of the judge to act impartially. The test is
objective and the standard of reasonableness applies to the person who
perceives the bias, as well as the apprehension of bias itself. The test
requires a consideration of what the reasonable, right-minded person,
with knowledge of all the facts, would think with regard to the
apprehension of bias. The apprehension must be reasonable, and suspicion
or conjecture is not enough. Finally, it is not necessary to show that
actual bias influenced the result.
82 In Flinn J.A.'s
opinion, Glube C.J.S.C. made no error in applying the test to the
decision of the Youth Court Judge. She was correct to point out that
there was no evidence to justify Judge Sparks' comments. Whether or not
the comments reflected "an unfortunate social reality", the
issue was whether Judge Sparks considered factors not in evidence when
she made her critical findings of credibility and decided to acquit the
accused. Judge Sparks used her general comments to conclude that
Constable Stienburg overreacted. There was no evidence regarding
"the prevalent attitude of the day" or the reasons why the
officer overreacted. Concerns regarding overreaction were not canvassed
in cross-examination of the officer, and the officer had no opportunity
to address these concerns in his testimony.
83 As a result,
Flinn J.A. was of the view that "[t]he unfortunate use of these
generalizations, by the Youth Court judge" would lead a reasonable,
fully informed person to conclude that Judge Sparks had based her
findings of credibility at least partially on the basis of matters not
in evidence. This was unfair. The appeal was therefore dismissed.
84 Finally, Flinn
J.A. rejected the argument that Glube C.J.S.C. had inappropriately
adopted a formal equality approach to the question of reasonable
apprehension of bias. He agreed with the Crown that the appellant's Charter
argument on this point was not properly raised by the appeal, and in any
event, that Glube C.J.S.C.'s approach was not inappropriate.
(ii) Freeman J.A.
(dissenting)
85 Freeman J.A.
agreed with the articulation of the law set out by the majority.
However, he was of the view at p. 292 that "it was perfectly proper
for the trial judge, in weighing the evidence before her, to consider
the racial perspective". He was not satisfied that this gave rise
to a perception that she was biased.
86 He indicated
that although it was not clear what Judge Sparks meant by her reference
to the "prevalent attitude of the day", it was possible that
she was referring to the attitudes exhibited on the day of R.D.S.'s
arrest. There was evidence before her on that point. At any rate, he was
prepared to give Judge Sparks the benefit of the doubt on this remark,
and to regard it as a neutral factor in the decision. The only remaining
remarks related to the possible racism of the police.
87 Freeman J.A. was
struck by the delicate racial dynamics of the courtroom. In his view, at
p. 294, "Judge Sparks was under a duty to be sensitive to the
nuances and implications, and to rely on her own common sense which is
necessarily informed by her own experience and understanding". He
noted the unfortunate truth that most individuals generally know that
police officers have on occasion misled the court or overreacted when
dealing with non-white groups. Judge Sparks did not state that the
officer did either of these things. Such a finding would have required
evidence.
88 Judge Sparks did
state that the officer overreacted, but she related it to her finding
that she believed R.D.S.'s statement that the officer told him to shut
up or he would be under arrest. This was not a biased conclusion, since
it indicated her concern that the charges might have arisen more as a
result of R.D.S.'s verbal interference, than of any physical act. There
was certainly some evidence on which Judge Sparks could conclude that
the officer overreacted, and this determination was within her purview.
If the finding of overreaction did not give rise to a reasonable
apprehension of bias, Freeman J.A. was not satisfied that any other
comments made by Judge Sparks would do so. He would have allowed the
appeal.
III. Issues
89 Only one issue
arises on this appeal:
Did the comments made by Judge Sparks
in her reasons give rise to a reasonable apprehension of bias?
IV. Analysis
A. Can this Court
Consider Judge Sparks' Supplementary Reasons?
90 Glube C.J.S.C.
correctly concluded that the supplementary reasons issued by Judge
Sparks after the appeal had been filed could not be taken into account
in assessing whether or not the reasons of Judge Sparks gave rise to a
reasonable apprehension of bias. The parties did not dispute this
determination in the Court of Appeal. In this Court, the appellant did
not raise this issue in argument and proceeded on the basis that the
supplementary reasons were not before the Court. The respondent Crown
submitted in oral argument that the supplementary reasons should be
considered as part of the overall picture in determining whether a
reasonable apprehension of bias arose from Judge Sparks' conduct. The
Crown appeared to be suggesting that the very fact of their issuance, as
well as their substance, was an important factor in the impression of
bias that was created. At this late stage it would be most unfair to
accept that submission. Accordingly, the supplementary reasons should
not be considered.
B. Ascertaining the
Existence of a Reasonable Apprehension of Bias
(i) Fair Trial and The
Right to an Unbiased Adjudicator
91 A system of
justice, if it is to have the respect and confidence of its society,
must ensure that trials are fair and that they appear to be fair to the
informed and reasonable observer. This is a fundamental goal of the
justice system in any free and democratic society.
92 It is a
well-established principle that all adjudicative tribunals and
administrative bodies owe a duty of fairness to the parties who must
appear before them. See for example >Newfoundland
Telephone Co. v. Newfoundland (Board of Commissioners of Public
Utilities), [1992] 1 S.C.R. 623, at p. 636. In order to fulfil
this duty the decision-maker must be and appear to be unbiased.
The scope of this duty and the rigour with which it is applied will vary
with the nature of the tribunal in question.
93 For very good reason
it has long been determined that the courts should be held to the
highest standards of impartiality. Newfoundland Telephone, supra,
at p. 638; >Idziak
v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at pp.
660-61. This principle was recently confirmed and emphasized by the
majority in >R.
v. Curragh Inc., [1997] 1 S.C.R. 537, at para. 7, where it was
said "[t]he right to a trial before an impartial judge is of
fundamental importance to our system of justice". The right to
trial by an impartial tribunal has been expressly enshrined by ss.
7 and 11(d) of the Canadian Charter of Rights and Freedoms.
94 Trial judges in
Canada exercise wide powers. They enjoy judicial independence, security
of tenure and financial security. Most importantly, they enjoy the
respect of the vast majority of Canadians. That respect has been earned
by their ability to conduct trials fairly and impartially. These
qualities are of fundamental importance to our society and to members of
the judiciary. Fairness and impartiality must be both subjectively
present and objectively demonstrated to the informed and reasonable
observer. If the words or actions of the presiding judge give rise to a
reasonable apprehension of bias to the informed and reasonable observer,
this will render the trial unfair.
95 Canada is not an
insular, homogeneous society. It is enriched by the presence and
contributions of citizens of many different races, nationalities and
ethnic origins. The multicultural nature of Canadian society has been
recognized in s. 27 of the Charter. Section 27 provides that the Charter
itself is to be interpreted in a manner that is consistent with the
preservation and enhancement of the multicultural heritage of Canadians.
Yet our judges must be particularly sensitive to the need not only to be
fair but also to appear to all reasonable observers to be fair to all
Canadians of every race, religion, nationality and ethnic origin. This
is a far more difficult task in Canada than it would be in a homogeneous
society. Remarks which would pass unnoticed in other societies could
well raise a reasonable apprehension of bias in Canada.
96 Usually, in a
criminal trial, actual or perceived judicial bias is alleged by the
accused. However, nothing precludes the Crown from making a similar
allegation. Indeed it has a duty to make such a submission in
appropriate circumstances. Even in the absence of explicit
constitutional protection, it is an important principle of our legal
system that a trial must be fair to all parties -- to the Crown as well
as to the accused. See, for example, R. v. Gushman, [1994] O.J.
No. 813 (Gen. Div.). In Curragh, supra, this Court recently
upheld an allegation of perceived bias arising from the conduct of a
trial judge towards a Crown attorney. In a slightly different context,
it has been held that if a judge forms or appears to form a biased
opinion against a Crown witness, for example, a sexual assault
complainant, the trial may be unfair to the Crown: Wald, supra,
at p. 336.
97 The question
which must be answered in this appeal is whether the comments made by
Judge Sparks in her reasons give rise to a reasonable apprehension that
she was not impartial as between the Crown and the accused. The Crown's
position, in essence, is that Judge Sparks did not give the essential
and requisite appearance of impartiality because her comments indicated
that she prejudged an issue in the case, or to put it another way, she
reached her determination on the basis of factors which were not in
evidence.
(ii) Standard of Review
98 Before dealing
with the issue of apprehended bias, it is necessary to address an
argument raised by the appellant and the interveners African-Canadian
Legal Clinic et al. They stressed that this appeal turns entirely on
findings of credibility. There were only two witnesses, and their
evidence was contradictory. Judge Sparks' role was therefore simply to
determine the issue of credibility. The appellant and the interveners
argued that it is a well-established principle of law that appellate
courts should defer to such findings, and that Glube C.J.S.C. improperly
reviewed Judge Sparks' findings of credibility. In my view, these
submissions are not entirely correct.
99 If actual or
apprehended bias arises from a judge's words or conduct, then the judge
has exceeded his or her jurisdiction. See Curragh, supra, at para.
5; Gushman, supra, at para. 28. This excess of jurisdiction can
be remedied by an application to the presiding judge for
disqualification if the proceedings are still underway, or by appellate
review of the judge's decision. In the context of appellate review, it
has recently been held that a "properly drawn conclusion that there
is a reasonable apprehension of bias will ordinarily lead inexorably to
the decision that a new trial must be held": Curragh, supra,
at para. 5.
100 If a
reasonable apprehension of bias arises, it colours the entire trial
proceedings and it cannot be cured by the correctness of the subsequent
decision. See Newfoundland Telephone, supra, at p. 645; see also Curragh,
supra, at para. 6. Thus, the mere fact that the judge appears to
make proper findings of credibility on certain issues or comes to the
correct result cannot alleviate the effects of a reasonable apprehension
of bias arising from other words or conduct of the judge. In the context
of an application to disqualify a judge from sitting in a particular
lawsuit, it has been held that where there is a reasonable apprehension
of bias, "it is impossible to render a final decision resting on
findings as to credibility made under such circumstances": Blanchette
v. C.I.S. Ltd., [1973] S.C.R. 833, at p. 843. However, if the
words or conduct of the judge, viewed in context, do not give rise to a
reasonable apprehension of bias, the findings of the judge will not be
tainted, no matter how troubling the impugned words or actions may be.
101 Therefore,
while the appellant is correct that appellate courts have wisely adopted
a deferential standard of review in examining factual determinations
made by lower courts, including findings of credibility, it is somewhat
misleading to characterize the issue in this appeal as one of
credibility alone. If Judge Sparks' findings of credibility were tainted
by bias, real or apprehended, they would be made without jurisdiction,
and would not warrant appellate deference. On the other hand, if her
findings were not tainted by bias, then the case turned entirely on her
findings of credibility and an appellate court should not interfere with
those findings, unless they were clearly unreasonable or not supported
by the evidence. See for example, >R.
v. W. (R.), [1992] 2 S.C.R. 122, at pp. 131-32.
102 Thus the sole
issue is whether Judge Sparks' reasons demonstrated actual or
perceivable bias. If they did, then Glube C.J.S.C. not only had the
jurisdiction to overturn them but also an obligation to order a new
trial. A judicial determination at first instance that real or
apprehended bias exists may itself be worthy of some deference by
appellate courts: Huerto v. College of Physicians and Surgeons
(1996), 133 D.L.R. (4th) 100 (Sask. C.A.), at p. 105. However, an
allegation of judicial bias raises such serious and sensitive issues
that the basic interests of justice require appellate courts to retain
some scope to review that determination.
(iii) What is Bias?
103 It may be
helpful to begin by articulating what is meant by impartiality. In
deciding whether bias arises in a particular case, it is relatively rare
for courts to explore the definition of bias. In this appeal, however,
this task is essential, if the Crown's allegation against Judge Sparks
is to be properly understood and addressed. See Prof. Richard F. Devlin,
"We Can't Go On Together with Suspicious Minds: Judicial Bias and
Racialized Perspective in R. v. R.D.S." (1995), 18 Dalhousie L.J.
408, at pp. 438-39.
104 In >Valente
v. The Queen, [1985] 2 S.C.R. 673, at p. 685, Le Dain J. held
that the concept of impartiality describes "a state of mind or
attitude of the tribunal in relation to the issues and the parties in a
particular case". He added that "[t]he word `impartial' . . .
connotes absence of bias, actual or perceived". See also >R.
v. Généreux, [1992] 1 S.C.R. 259, at p. 283. In a more
positive sense, impartiality can be described -- perhaps somewhat
inexactly -- as a state of mind in which the adjudicator is
disinterested in the outcome, and is open to persuasion by the evidence
and submissions.
105 In contrast, bias
denotes a state of mind that is in some way predisposed to a particular
result, or that is closed with regard to particular issues. A helpful
explanation of this concept was provided by Scalia J. in Liteky v.
U.S., 114 S.Ct. 1147 (1994), at p. 1155:
The words [bias or prejudice] connote a
favorable or unfavorable disposition or opinion that is somehow wrongful
or inappropriate, either because it is undeserved, or because it
rests upon knowledge that the subject ought not to possess (for example,
a criminal juror who has been biased or prejudiced by receipt of
inadmissible evidence concerning the defendant's prior criminal
activities), or because it is excessive in degree (for example, a
criminal juror who is so inflamed by properly admitted evidence of a
defendant's prior criminal activities that he will vote guilty
regardless of the facts). [Emphasis in original.]
Scalia J. was careful to stress that
not every favourable or unfavourable disposition attracts the label of
bias or prejudice. For example, it cannot be said that those who condemn
Hitler are biased or prejudiced. This unfavourable disposition is
objectively justifiable -- in other words, it is not "wrongful or
inappropriate": Liteky, supra, at p. 1155.
106 A similar
statement of these principles is found in R. v. Bertram, [1989]
O.J. No. 2123 (H.C.), in which Watt J. noted at pp. 51-52:
In common usage bias describes a
leaning, inclination, bent or predisposition towards one side or another
or a particular result. In its application to legal proceedings, it
represents a predisposition to decide an issue or cause in a certain way
which does not leave the judicial mind perfectly open to conviction.
Bias is a condition or state of mind which sways judgment and renders a
judicial officer unable to exercise his or her functions impartially in
a particular case.
See also R. v. Stark, [1994] O.J.
No. 406 (Gen. Div.), at para. 64; Gushman, supra, at para. 29.
107 Doherty J.A.
in R. v. Parks (1993), 15 O.R. (3d) 324 (C.A.), leave to appeal
denied, [1994] 1 S.C.R. x, held that partiality and bias are in fact not
the same thing. In addressing the question of potential partiality or
bias of jurors, he noted at p. 336 that:
Partiality has both an attitudinal and
behavioural component. It refers to one who has certain preconceived
biases, and who will allow those biases to affect his or her verdict
despite the trial safeguards designed to prevent reliance on those
biases.
In demonstrating partiality, it is
therefore not enough to show that a particular juror has certain
beliefs, opinions or even biases. It must be demonstrated that those
beliefs, opinions or biases prevent the juror (or, I would add, any
other decision-maker) from setting aside any preconceptions and coming
to a decision on the basis of the evidence: Parks, supra, at pp.
336-37.
108 This analysis
is certainly not exhaustive. Different factors may determine the issue
where, for example, the allegation relates to direct pecuniary bias or
some other personal interest in the outcome of a case. Yet the concepts
articulated can be used as guiding principles in the consideration of
this case.
(iv) The Test for Finding
a Reasonable Apprehension of Bias
109 When it is
alleged that a decision-maker is not impartial, the test that must be
applied is whether the particular conduct gives rise to a reasonable
apprehension of bias. Idziak,
supra, at p. 660. It has long been held that actual bias need not be
established. This is so because it is usually impossible to determine
whether the decision-maker approached the matter with a truly biased
state of mind. See Newfoundland Telephone, supra, at p. 636.
110 It was in this
context that Lord Hewart C.J. articulated the famous maxim: "[it]
is of fundamental importance that justice should not only be done, but
should manifestly and undoubtedly be seen to be done": The
King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B.
256, at p. 259. The Crown suggested that this maxim provided a separate
ground for review of Judge Sparks' decision, and implied that the
threshold for appellate intervention is lower when reviewing a decision
for "appearance of justice" than for "appearance of
bias". This submission cannot be sustained. The Sussex Justices
case involved an allegation of bias. The requirement that justice should
be seen to be done simply means that the person alleging bias does not
have to prove actual bias. The Crown can only succeed if Judge Sparks'
reasons give rise to a reasonable apprehension of bias.
111 The manner in
which the test for bias should be applied was set out with great clarity
by de Grandpré J. in his dissenting reasons in Committee
for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R.
369, at p. 394:
[T]he apprehension of bias must be a
reasonable one, held by reasonable and right-minded persons, applying
themselves to the question and obtaining thereon the required
information. . . . [The] test is "what would an informed person,
viewing the matter realistically and practically -- and having thought
the matter through -- conclude. . . ."
This test has been adopted and applied
for the past two decades. It contains a two-fold objective element: the
person considering the alleged bias must be reasonable, and the
apprehension of bias itself must also be reasonable in the circumstances
of the case. See Bertram, supra, at pp. 54-55; Gushman, supra,
at para. 31. Further the reasonable person must be an informed
person, with knowledge of all the relevant circumstances, including
"the traditions of integrity and impartiality that form a part of
the background and apprised also of the fact that impartiality is one of
the duties the judges swear to uphold": R. v. Elrick, [1983]
O.J. No. 515 (H.C.), at para. 14. See also Stark, supra, at para.
74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34. To that
I would add that the reasonable person should also be taken to be aware
of the social reality that forms the background to a particular case,
such as societal awareness and acknowledgement of the prevalence of
racism or gender bias in a particular community.
112 The appellant
submitted that the test requires a demonstration of "real
likelihood" of bias, in the sense that bias is probable, rather
than a "mere suspicion". This submission appears to be
unnecessary in light of the sound observations of de Grandpré J. in Committee
for Justice and Liberty, supra, at pp. 394-95:
I can see no real difference between
the expressions found in the decided cases, be they `reasonable
apprehension of bias', `reasonable suspicion of bias', or `real
likelihood of bias'. The grounds for this apprehension must, however,
be substantial and I entirely agree with the Federal Court of Appeal
which refused to accept the suggestion that the test be related to the
"very sensitive or scrupulous conscience". [Emphasis added.]
Nonetheless the English and Canadian
case law does properly support the appellant's contention that a real
likelihood or probability of bias must be demonstrated, and that a mere
suspicion is not enough. See R. v. Camborne Justices, Ex parte Pearce,
[1954] 2 All E.R. 850 (Q.B.D.); Metropolitan Properties Co. v. Lannon,
[1969] 1 Q.B. 577 (C.A.); R. v. Gough, [1993] 2 W.L.R. 883 (H.L.);
Bertram, supra, at p. 53; Stark, supra, at para. 74; Gushman,
supra, at para. 30.
113 Regardless of
the precise words used to describe the test, the object of the different
formulations is to emphasize that the threshold for a finding of real or
perceived bias is high. It is a finding that must be carefully
considered since it calls into question an element of judicial
integrity. Indeed 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. See Stark, supra,
at paras. 19-20. Where reasonable grounds to make such an allegation
arise, counsel must be free to fearlessly raise such allegations. Yet,
this is a serious step that should not be undertaken lightly.
114 &n |