Apprehension of Bias and the Lawyer's Duty to Assert it

     A lawyer representing a client has an affirmative duty to initiate a motion asserting an apprehension of bias against a court or tribunal hearing his or her client's case where the lawyer reasonably believes the circumstances justify such a motion and his or her client so instructs.  The jurisprudence on this issue stipulates that such a motion must be brought promptly.  Indeed, the failure to bring such a motion at first instance will foreclose the ability to raise this issue on appeal.  Regrettably, lawyers, judges and adjudicators are human beings and the very act of bringing such a motion has the potential to cause defensiveness in a judge or adjudicator and yes - a potential allegation of incivility to the governing body.

     In this post I wish to attempt to delineate the governing law on the issue of apprehension of bias and why a lawyer is duty bound to assert such a claim where he or she reasonably believes that there are facts and circumstances which justify the bringing of such a motion.  In addition, I wish to also delineate some of the circumstances which our courts have found to create a reasonable apprehension of bias. As with many other areas of law the circumstances giving rise to a reasonable apprehension of bias are infinite and turn on the overall facts and circumstances of the case.

Justice must be
seen to be done:

     Bias is the antithesis of the Rule of Law.  A trial or hearing which suffers from bias denudes itself of legality by virtue of denying the subject litigant a fair and impartial hearing. A denial of a right to a fair hearing cannot be cured by the tribunal's subsequent decision.  A decision of a tribunal which denied the parties of a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal.  The damage created by the apprehension of bias can not be remedied.  The hearing, and any subsequent order resulting from it, must be void. (see Nfld Telephone   v.  Nfld Public Utilities [1992] 1 S.C.R. 626.

A serious decision
by counsel:

     The decision to bring a motion alleging an apprehension of bias is one of the most serious decisions that a lawyer must make in the representation of any client and especially on behalf of a client who faces serious consequences from the subject legal proceedings.  While one act or comment on the part of a judge or adjudicator is capable of  establishing a reasonable apprehension of bias it is advisable to thoroughly evaluate the record of the proceedings to date and identify at least three items which could tend to support such an allegation.

     In seeking to identify the supporting evidence for an apprehension of bias claim it is recommended that one identify the key issues in the case and organize the evidence in the following categories:  1.  evidence of a closed mind on a material issue;  2.   evidence of an animus against the client;   3.   evidence of an animus against counsel; and 4.  evidence of a preference or bias towards one party in the litigation.  Before embarking on the application make sure to seek input from colleagues in order to asses the reasonableness of your concerns.  It is possible that others who are removed from the litigation may be able to provide a more objective basis of the claim than one who is engrossed it it.  Lastly avoid being "baited" into allegations of actual or personal bias by the judge or adjudicator.  That is not the point at all.

The Test for Reasonable
Apprehension of Bias:

     "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.  In the words of the Court of Appeal, that 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."  (see Committee for Justice and Liberty   v. National Energy Board [197] 1 S.C.R. 369)

Closed Mind:

     Evidence of a closed mind on a material issue in a trial or other legal proceeding by a judge or adjudicator is compelling evidence in support of an apprehension of bias. This ground places reliance on statements made by the judge or adjudicator typically within the proceedings.  Since judges and adjudicators are entitled to ask questions and make comments during a legal proceeding it is not every statement or intervention which will be found to constitute evidence of an apprehension of bias.

     In R  v.  Brown 2003 Canli 52142 (ON CA) the Court of Appeal for Ontario had opportunity to clarify the law in this area.  This was the case in which Dee Brown, then a member of the Toronto Raptors, was stopped and charged with an alcohol related offence.  His lawyer, Steven Skurka, brought a Charter application asserting an arbitrary stop motivated by racial profiling.  The trial judge made several comments tending to indicate his disapproval with the argument of racial profiling advanced on behalf of Mr. Brown and went on to convict Mr. Brown.  The conviction was set aside on a Summary Conviction appeal and in a subsequent appeal to the Court of Appeal by the Crown the Court of Appeal had the following to say:

[96]   "As a general proposition, it may be said that a trial judge has considerably more scope to intervene during the submissions segment of the trial than during the evidence segment.  The purpose of the intervening is to enable the judge to obtain the assistance of counsel on matters that are of concern to him or her in order to fully understand the case that is being submitted.  Judicial interventions for this purpose do not have to take any particular form and I do not rule out blunt statement of the judge's tentative conclusions, provided that their purpose is to afford counsel the opportunity to "bring the judge around."  I think that some of the trial judge's statements could be understood as serving this purpose.  Others, however, such as those expressing the trial judge's view that the allegations in the application were "serious, offensive, nasty or malicious," are somewhat like conversation-stoppers and serve mainly to indicate the judge's general antipathy to the application and not to elicit helpful responses." 

Sarcasism and cynicism
have no place in the process:

     R   v.  Moore 2004 Canli 4354 (ON SC) provides a splendid example of the application of the principle that justice must be seen to be done.  In that case the defendant was charged with "over 80" and ran a defence challenging the accuracy of the breathalyzer reading and called other evidence with a view to raising a reasonable doubt. The trial judge went on to reject the defendant's evidence and convicted him.  On appeal the trial judge's reasons for judgment were alleged to demonstrate a patent distaste both for those who defend cases of over 80 and for the law that the court is obligated to administer.    The trial judge went on the make the following statements in his reasons for judgement:

"Smarter minds than mine have determined that I am not allowed to use that in my assessment of his credibility, and so I do not."  - "Smarter minds that mine have determined that I am not allowed to use that in this case to determine whether he had more than 80 milligrams of alcohol per 100 milliliters of his blood." - "Smarter minds than mine have determined that there is no presumption of accuracy on those machines. Notwithstanding, thousands and thousands of people plead guilty because they register more than 80 on those machines but in cases where the evidence to the contrary is adduced, I must give the accused the benefit of the doubt if I have some doubt that the evidence to the contrary has raised a doubt about the guilt of the accused."

     In setting aside the conviction and ordering a new trial Langdon J. stated, "Mr. Daley did not suggest that the trial judge deliberately disregarded the law that bound him.  But the tone of passages quoted plainly suggests to a disinterested and informed observer that the trial judge approached the Carter defence, not with an open mind and impartial mind, but with cynicism and a degree of intolerance that, if it was not apparent as the trial proceeded, became apparent retrospectively as the decision was given in court."





       

   

   

   

Judicial Independence and the Practice of Indemnifying Judicial Officers for Defence Costs

     Did you know that the practice of indemnifying judicial officers for their legal costs in defending allegations of judicial misconduct is a common occurrence in all jurisdictions and at every level of court in Canada ?  A recent article in the Toronto Star entitled "Taxpayers billed for guilty justices' legal fees" takes issue with this long established custom suggesting that doctors and other professionals are not indemnified for their legal costs so this long established practice ought to stop. The piece goes on to demonstrate a gross lack of understanding of the principle of judicial independence by quoting a number of individuals including the following - "The government does not pay the legal costs of citizens who are acquitted, let alone someone who is found guilty."

     Equating judicial officers with "other professionals" and persons charged with criminal offences fails to appreciate the constitutional principle which underlies this long  established practice.  In our system there exists a divide between the judiciary and what is commonly referred to as government. A fundamental principle in our system is that judicial officers must be independent from the influence of government in order to properly discharge their judicial duties. Judicial officers must be granted security of tenure.  Justices of the Peace in Ontario are statutorily entitled to serve until age 70 and unless removed for cause following a public hearing.  Another component of judicial independence is financial security.  Judicial officers must be adequately compensated to ensure impartiality and independence.

     The practice of indemnification of legal costs for judicial officers is directly related to the financial security requirement and the principle that justice must be seen to be done.  The judicial misconduct adjudicative process is in place to protect the public interest in judicial independence and the rule of law.  The mere possibility that the "government" could theoretically bankrupt a sitting judicial officer through this process undermines judicial independence and the rule of law.  Judicial officers are not "other professionals" and criminal defendants.  Indemnification of the legal costs of judicial officers is in fact a reasonable restraint on the "government" which protects and preserves the cornerstone of our justice system - judicial independence and the rule of law.

NOTE:  This piece is written to draw attention to an issue of public importance.  Democracy and the rule of law work better with the free communication of ideas.  Tax payers in Ontario cover the bill for much less serious and fundamental rights as judicial independence. Virtually every police service collective agreement in Ontario has a legal indemnification clause entitling police officers indemnification for legal costs.  Taxpayers in Ontario pay substantially more for the defence of police officers than judicial officers.  It is not even close !

     

Why Jian Ghomeshi's Prosecution May be a Wrongful Conviction in the Making ?

     As the authorities investigate and deliberate on whether or not to charge Jian Gomeshi under the Criminal Code they ought to take a serious read of the Executive Summary and Recommendations of The Commission on Proceedings Involving Guy Paul Morin.  Readers will recall that Guy Paul Morin was charged with the murder of his next door neighbor, Christine Jessop.  He was tried not once but twice.  Mr. Morin was acquitted at his first trial in 1986.  A new trial was ordered by the Court of Appeal for Ontario(affirmed by the Supreme Court of Canada).  Mr. Morin was tried a second time and found guilty of first degree murder.  Mr. Morin appealed and on the basis of fresh evidence tendered by the Crown and defence he was acquitted of the charge on January 23rd, 1995.  DNA evidence established that Mr. Morin was not the donor of semen stains found on the deceased's body.  The authorities acknowledged that Mr. Morin was innocent, apologized and compensated him.

     As a result of Mr. Morin's wrongful conviction we in Ontario were the beneficiaries of the Hon. Fred Kaufman's insightful report to the Government of Ontario into, among other things, the conduct of the criminal investigation in Mr. Morin's case.  Two investigative flaws identified in the Morin Inquiry and other similar inquiries as significant contributors to wrongful convictions,  "Tunnel Vision" and "Noble Cause Corruption",  may likely present a challenge to the authorities in any prosecution of Mr. Ghomeshi.

     Tunnel Vision was defined by the Morin Iquiry as "the single minded overly  narrow focus on an investigation or prosecutorial theory as to unreasonably colour the evaluation of information received and one's conduct in response to the information."

     Noble Cause Corruption refers to the practice where police officers violate legal or ethical standards in pursuit of what they perceive to be the benefit of society at large.

Tunnel Vision:

     The Jian Ghomeshi allegations are a perfect case-study for the phenomenon of tunnel vision in a criminal investigation - dated complaints of sexual and violent crimes against women by a man who can be described as a public figure or celebrity in an era of political-correctness where there exists "mainstream guilt" for historical wrongs perpetrated against women under the colour of law.  The complainants all know the subject of the criminal investigation.  The subject of the investigation knows the complainants.  They key issue is one of  consent at the time of the alleged conduct  -except for acts which the complainant can not at law consent to(bodily harm for example).  The complainants allege a lack of consent.  Mr. Ghomeshi, as I understand it, has publicly asserted that he acted with consent.

Consent a state of mind:

     A key question for investigators in a case such as this is an explanation for the delay in advancing the criminal complaint.  Delay on its own will not always impair the credibility or reliability of a complaint but it must be carefully investigated.  The rationale for this can be found once one appreciates that consent is a state of mind at the time of the offence which unlike DNA evidence
is not fixed and is subject to change by the complainant either intentionally or unintentionally.

Objective and Subjective
Requirement:

     A complainant can objectively consent to an act thereby inviting an action only to then later
assert a lack of consent depending on their objective.  I raised this legal point in Webb   v.  Waterloo Region Police Services Board et al 2002 Canli 41983 (Ont. C.A.) - a case in which the defendant, a gay man, was cruising in an area known for consensual cruising activity between men encountered an undercover police officer who accepted an invitation to go into the woods with the plaintiff only to arrest and charge him for sexual assault when contact occurred. My use of the word objective above is not to imply that I have any knowledge that the complainants in the Ghomeshi case actually possess any improper objective as I do not know that.  I use it because in the Webb case I was successful in obtaining an admission from the officer that he concealed his identity from Mr. Webb and accepted his invitation to go into the woods knowing what goes on there because he was playing a role and Webb would not have committed the offence had he known.

     Publicity with respect to legal proceedings involving the alleged perpetrator may be a key element which may lead a complainant to effectively reevaluate their consent to a dated occurrence. What may have been consensual because the complainant accepted the conduct at the time can be subsequently deemed "inappropriate conduct" following widespread publicity of sexual misconduct or criminal allegations against the alleged perpetrator.  A complainant may reason that on receipt of the "new information" from the publicity they now feel naive and violated where they did not at the material time. The publicity may provide a new perspective for the complainant to evaluate the historical conduct which she may have consented to in the past and bring forward her "true opinion" on the question.

Nobel Cause Corruption:

     The current waive of political-correctness fueled by the the intense public coverage in this case make it susceptible to Noble Cause Corruption.  Political-correctness on the issues of sexual harassment and sexual assault by men against women has reached a point where,
if left unchecked, the issues of consent, credibility and reliability are secondary to the allegation itself.  The so called victim's narrative and the acceptance of this narrative holus bolus appears on the verge of creating a strict liability offence and dispensing with established legal principles like the presumption of innocence.  This is the climate in which these allegations are received.

     No one - especially the police, prosecutors and even the judiciary - want to be called
out as "condoning" the allegations and "impeding" the victim's right to "vindication".  Vindication under this regime of political-correctness is a finding of guilt.  Reports are already being attributed to at least one of the complainants on the "positive reception" she has received from the police.  Police for their part have already announced that they want to make available all of the resources available - such as counselling etc. to persons who come forward.  In light of these reports one wonders to what extent investigators may be reluctant to ask hard questions of the complainants.  What may often happen in such circumstances is the phenomenon where police adopt the "tell your story to the judge approach". In employing this approach police officers simply take the information at face value and leave the unanswered questions to either the prosecutor or the trial judge.

Challenge for investigators:

     Investigators tasked with investigating a case like Mr. Ghomeshi's must start with a recognition
of the nature and potential frailties associated with the legal concept of consent. Unless there is evidence of bodily harm consent would be a defence to the subject allegations.  Police must be objective, impartial and thorough in their investigations.  Police must not be afraid to ask the hard and perhaps embarrassing questions.  Police are not legally obligated to lay criminal charges at the whim or direction of anyone.  Police may lay a criminal charge where they have formulated reasonable grounds for believing that an offence has been committed.  Political-correctness and publicity ought to have no role in  the execution of this police function.  The forum for victims to seek vindication is the civil forum and not the criminal law forum.