Tuesday, October 6, 2015

Court of Appeal Reverses Another Trial Judge on Bias

   Once again, the Court of Appeal for Ontario has reversed a trial judge on the basis of, among other grounds,  a reasonable apprehension of bias - confirming that the right to a fair and impartial trial is a fundamental right of all litigants in our legal system.  In Clayson-Martin  v.  Martin 2015 ONCA 596 the court ordered a new trial following its finding that the trial judge "treated the evidence of the parties unevenly in a way that gave rise to a reasonable apprehension of bias and amounted to an error of law." (at para142)

   Readers may recall that this is the case in which a couple were vacationing in Jamaica and the wife suffered a serious slash to her neck which she maintained was caused by the husband and he was charged with attempt murder. In subsequent proceedings for custody and access to their children the wife asserted, among other points, that since the husband tried to kill her he ought not get access to their children.  The trial judge granted the wife sole custody but also provided what the wife characterized as generous access to the children.  The wife appealed, on among other grounds, a reasonable apprehension of bias in the trial judge which adversely impacted trial fairness.

   On the issue of bias the wife raised the following grounds which is reproduced from the Court of Appeal's judgement:

[17]   Second, she argues that the trial judge's conduct during the trial raises a reasonable apprehension of bias.  The wife submits that the trial judge misapprehended evidence, gave uneven scrutiny to witness evidence supporting the wife as compared to evidence supporting the husband, and differentially assessed the credibility of the wife versus the husband.  She further argues that the trial judge failed to maintain and carry out his role as the independent arbiter: entering the fray, faking over the questioning of witnesses, and advancing theories raised by neither party.  She submits that he demonstrated disdain for the applicant, was on numerous occasions disrespectful to her counsel, and that his interim rulings demonstrate his bias in the husband's favour.

   The following are some of the more salient points from the Court's judgement on the bias issue:

[70]   The Supreme Court of Canada recently noted at para 11 in Yukon Francaphone School Board 2015 SCC 25:

"The objective of the test is to ensure not only the reality, but the appearance of a fair adjudicative process."

[84]   There was no considered analysis of this important evidence which came from a completely independent witness and corroborated the wife's version of the event.

[85]   Instead the trial judge rejects the entirety of this evidence because of a minor inconsistency: an inconsistency about which he was also mistaken in the detail.

[95]   Again, the trial judge is dismissive of the evidence which supports the wife's version of events.  And again focuses on a minor inconsistency between her evidence at the criminal trial where she said: "I grabbed my throat with my left hand and he came at me again...and because my hand was over my throat, he got my thumb, my left thumb."

[96]   And at this trial where she said, "as I was grabbing my neck the knife got my thumb."  The trial judge described the wife's evidence on this point as "all over the map" at the trial before him.  The evidence simply does not bear this out.

[97]   The trial judge's treatment of the wife's evidence is particularly troubling when contrasted with his generosity in treating inconsistencies in the husband's evidence.

[101]   While the trial judge imposes a very exacting standard of the wife's evidence - calling evidence that is in fact quite consistent "all over the map", the jarring inconsistencies in the husband's version get a pass.

[105]   In my view, the trial judge's comparative credibility analysis is troubling.  He brought the wife to task for minor inconsistencies while excusing the husband in the face of glaring contradictions. This suggests an uneven treatment of the evidence and amounts to an error of law.

Treatment of Counsel and Client:

   Although the Appellant(wife) properly asserted as a basis of the trial judge's reasonable apprehension of bias his treatment of her counsel and herself and the Court of Appeal makes reference to it in their judgement it is appears that the court did not expressly make a finding of bias on this point. The court said:

[115]   At the same time, none of these comments, either alone or view together, would themselves have risen to the level of reasonable apprehension of bias.

   Arguably, the treatment of counsel and the Appellant combined with the findings of bias which the court did find would tend to strengthen the Appellant's assertion that she did not receive a fair trial.  At the of the day the underlying rationale for the requirement of impartiality is to preserve and ensure the litigant's right to a fair and impartial trial.

NOTE;  This is a brief summary of the court's judgement.  Readers are encouraged to read the court's actual judgment which can be found on the Court of Appeal's website.

Ernest J. Guiste is available to provide legal opinions to litigants who feel they may have been denied a fair trial.  Call for an appointment:  (416) 364-8908 or E mail your questions to: ejguiste.rightslawyer@gmail.com  

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