Saturday, October 3, 2015

The Appearance of Judicial Impartiality is as Important as the Reality

   Judicial impartiality is arguably the most fundamental component of a system of law governed by what we have come to term The Rule of Law.  In such a system the lawyer plays a pivotal role in bringing this element to fruition.  It is the lawyer who - on behalf of his or her client asserts and ensures that this fundamental element of our system of justice is respected and upheld.

The public interest:

   It is in the public interest for lawyers to seek to bring this right to fruition on behalf of their clients.  Indeed, it can reasonably be argued that this aspect of a lawyer's work is an essential and necessary component to the proper functioning of the administration of justice.

Established and Accepted
Principle of Law:

   The House of Lords, Supreme Court of Canada and the Court of Appeal for Ontario have all recognized that the appearance of judicial impartiality is as important as the reality in very clear language.  Below is what they have had to say on this very important subject.

[60]   It has also been held, in order to maintain public confidence in the administration of justice, the appearance of judicial impartiality is as important as the reality.  In Metropolitan Properties Co. (F.G.C.) Ltd.  v.  Lannon [1968] 3 All E.R. 304 (C.A.) at p. 310, Lord Denning M.R. stressed the importance of judicial impartiality.  He said:

[1]   In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself...It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people.  Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit.  And if he does sit, his decision can not stand.

[62]   This reasoning accords with the decision of the Lord Nolan in R  v. Bow Street Metropolitan Stipendiary Magistrate et al [1999] 1 All E.R. 577  (H.L.0 at p. 592: "In any case where the impartiality of a judge is in question the appearance of the matter is just as important as the reality."

[63]   The appearance of impartiality was emphasized in Wewakum  Indian Band   v.  Canada [2003] 2 S.C.R. 259, at para 66:

"Where disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was."

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