The Test

The test is whether a reasonable observer, fully informed of all of the relevant facts, would view the conduct of the Justice of the Peace as giving rise to a reasonable apprehension of bias: R v Lappie, 2016 ONCA 289 at para 20

The fundamental principles are as follows: 

  1. First, there is a presumption of judicial integrity, that is to say, that judges will carry out their oath of office

  2. Second, this presumption of judicial integrity does not relieve a judge from their sworn duty to be impartial

  3. Third, although the threshold for a successful claim of actual or apprehended bias is high, it is not insurmountable. The presumption of judicial integrity can be displaced by cogent evidence that demonstrates that something the judge did or said gives rise to a reasonable apprehension of bias

  4. Fourth, in accordance with general principle, the onus of rebutting the presumption of integrity, or put another way, of demonstrating bias, rests upon the party who alleges it, in this case, the appellant

  5. Fifth, allegations of reasonable apprehension of bias, thus inquiries into whether such a claim has been made out, are entirely fact-specific

  6. Sixth, the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining the required information about it. The test is “What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Inherent in this test is a two-fold objective element. The person considering the alleged bias must be reasonable. And the apprehension of bias must also be reasonable in all the circumstances of the case. The reasonable person must be informed, impressed with the knowledge of all the circumstances, including the traditions of integrity and impartiality that form a part of the background and cognizant of the fact that impartiality is one of the duties judges swear to uphold.

  7. Finally, stereotypical reasoning may give rise to a reasonable apprehension of bias: R v Richards, 2017 ONCA 424 at paras 42-50

Judicial comments made in an unrelated proceeding cannot support an inference of bias in the case at hand, unless the accused can demonstrate a sound basis for perceiving that any decision made at trial was grounded in prejudice, generalizations or stereotypical reasoning: Richards, at para 58

Trial Judge's Intervention in Proceeding

A trial judge is not required to sit passively while counsel present the case as they see fit. A judge intervene in the adversarial process, and sometimes this is essential to ensure that justice is done in substance and appearance. 

 

A trial judge interventions constitute a "trial management power." A trial judge may intervene to: focus the evidence on issues material to a determination of the case;  clarify evidence as it has been given and is being given; avoid admission of evidence that is irrelevant; curtail the needless introduction of repetitive evidence; dispense with proof of the obvious or uncontroversial; ensure the way that a witness answers or fails to respond to questions does not unduly hamper the progress of the trial; and to prevent undue protraction of trial proceedings. In doing so, a trial judge should confine herself to her own responsibilities, leaving counsel and the jury to their respective functions. R v Murray, 2017 ONCA 393 at paras 91-92; R v DC, 2017 ONCA 143 at para

Standard of Review

On appeal, a strong presumption exists that a trial judge has not intervened unduly at trial. However, the following are some interventions that may attract appellate review: 

  • questioning an accused or witnesses in such a way as to convey an impression that the judge aligns him or herself with the case for the Crown;

  • questioning witnesses in such a way as to make it impossible for counsel to present the defence case;

  • intervening to such an extent in the testimony of the accused that it prevents the accused from telling his or her story; and

  • inviting the jury to disbelieve the accused or other defence witnesses: Murray at paras 94-95

The question on appeal is whether the interventions created the appearance of an unfair trial to a reasonable person present throughout the trial proceedings. The issue is assessed from the perspective of a reasonable observer present throughout the trial. The analysis is contextual and requires an evaluation of the interventions cumulatively, likewise their cumulative effect on the actual or apparent fairness of the trial. What is generally critical is what occurred in the presence of the jury: Murray at paras 96-97

A judicial determination at first instance that real or apprehended bias exists may itself be worthy of some deference by appellate courts. 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: R v PG, 2017 ONCA 351 at para 22 (citing RDS)

In cases involving a second level of appeal, because of the importance of the issue and the fact that it raises a question of law, the second appellate court must review the reasons of the trial judge anew and no deference is owed to the determination of the SCAC judge on this issue: PG at para 23

 

Examples

In DC, for example, the trail judge's interjections did not raise a reasonable apprehension of bias because they did not interfere with counsel's ability to fully and fairly advance a defence. The interjections were made during both the Crown and Defence case, and were said to be intended only to insure that procedural and evidentiary rules were followed, clarify questions asked by counsel, clarify answers, and move the trial forward in an orderly fashion when questioning had bogged down on a collateral matter. 

In contrast, in Murray, the trial judge's repeated interjections during the testimony of a key defence witness "marred the appearance of fairness" and indicated to a reasonable observer that he had "cast his lot with the prosecution:" para 105