Wednesday, May 16, 2012

Removing a judge for conflict

Bailey v. Barbour, 2012 ONCA 325 deals with when a judge must recuse themselves because of conflict.

The issue is a difficult one. Parties will, on occasion, seek to remove a judicial officer not because they wish an impartial judge but rather because they believe the existing judicial officer will be impartial but contrary to the party. Judicial officers ought not to be removed lightly. That said, where a genuine apprehension of potential bias exists the judicial officer ought to remove themselves.

The Court writes:

[16]       The inquiry into whether a conflict exists sufficient to prompt a decision-maker to recuse him or herself must be fact-specific. As his short oral ruling demonstrates, the trial judge correctly identified the test to be applied for determining whether there exists a reasonable apprehension of bias: What would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude? Would he or she think it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly?

[17]       This test was first articulated by Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394. Ever since, the Supreme Court of Canada has consistently endorsed the standard, including in the case referred to by the trial judge, Wewaykum Indian Band, although the court has also sought from time to time to clarify and develop it.

[18]       Thus, for example, in his reasons in R. v. S. (R. D.), [1997] 3 S.C.R. 484, Cory J. explained, at para. 111, that the test set down by Grandpré J. contains a "two-fold objective element": not only must the person considering the alleged bias be reasonable, but "the apprehension of bias itself must also be reasonable in the circumstances of the case." Cory J. added, at para. 113, that:

[T]he threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.

[19]       In addition to this "high" threshold set out by Cory J., the Supreme Court has made clear that, in those cases where a party seeks the recusal or disqualification of a judge, allegations of judicial bias will have to overcome the strong presumption of judicial impartiality. Moreover, "in any case where the impartiality of the judge is in question, the appearance of the matter is just as important as the reality": R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 2), [1999] 1 All E.R. 577 (H.L.), at p. 592.

[20]       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 the appearance of judicial impartiality. He put the matter this way:

[I]n 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 cannot stand.

[21]       This passage from Lord Denning M. R. in Metropolitan Properties Co. was cited with approval by Major J. in his dissenting reasons in S. (R. D.), at para. 11, and by this court in Benedict v. Ontario (2000), 51 O.R. (3d) 147 (C.A.). In Benedict, the court also noted, at para. 20, that while Lord Denning M. R. used the phrase "real likelihood",  variations in the expression such as "reasonable apprehension", "reasonable likelihood", and "reasonable suspicion" should not be regarded as involving any substantive difference in the approach to be taken, and indeed amount to the same standard.
[25]       Whenever a party takes the position that a reasonable apprehension of bias exists, the judge must weigh the submission carefully and contextually, taking account of all relevant circumstances. The trial judge did not follow that course in this case. Had he done so, he would have given greater consideration to his wife's involvement in the narrative, and he would not have concluded that the appellant's claim for disqualification was based only on "a general sense of unease" falling "well short of the threshold that justifies the order sought."

[26]       In our view, the appellant has met the high threshold necessary to establish a reasonable apprehension of bias. The circumstances created a reasonable apprehension of bias, necessitating a new trial before a different judge of the court.

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