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Test for Reasonable Apprehension of Bias


The test is whether a reasonable and informed person, having knowledge of all relevant circumstances and studying the matter realistically and practically, would conclude that the judge's conduct raises a reasonable apprehension of bias: R v Provencher, 2015 ONCA 510 at para 7: R v Siddiqi, 2015 ONCA 548 at para 6; R v Nero, 2016 ONCA 160 at para 29

Trial judges enjoy a presumption of integrity. The test to displace the presumption of integrity is high because it calls into question both the integrity of the presiding judge and the administration of justice itself: R v Arnaout, 2015 ONCA 655 at para 19; R v Nero, 2016 ONCA 160 at para 30


The inquiry into a reasonable apprehension of bias is entirely fact-specific: R v Nero, 2016 ONCA 160 at para 32


As a general rule, allegations of bias or a reasonable apprehension of bias should be advanced as soon as it is reasonably possible to do so:  R v Nero, 2016 ONCA 160 at para 33; see especially para 36


The onus of demonstrating bias lies with the party who alleges its existence, and is based on a balance of probabilities: Nero at para 31


Where a of reasonable apprehension of bias is initiated by counsel at trial but never pursued, this is a factor that militates against a finding of bias: Nero at para 35 




Examples of a Reasonable Apprehension of Bias


The presumption of judicial integrity can be rebutted where the reasons for conviction are delivered months later or constitute an after-the-fact amendment, thereby calling into question whether the reasons are simply an after the fact justification for a decision reached much earlier – or are actually an articulation of the reasoning that led to the decision: R v Arnaout, 2015 ONCA 655 at paras 19-23


In the case of an after-the-fact amendment, the remedy may be to simply exclude the post-verdict reasons and assess whether the original reasons are sufficient



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