Sunday, November 30, 2014

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."





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