Friday, January 10, 2014

Trial judge’s expressions of impatience/annoyance do not necessarily demonstrate bias

Martin v. Sansome, 2014 ONCA 14:

[31]       Bias is a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 58. The burden of establishing bias is on the party arguing that it exists. The test, found in Wewaykum, at para. 60, is long-established:

[W]hat 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[?]

[32]       There is a strong presumption of judicial impartiality. The threshold is high for finding an apprehension of bias: Wewaykum, at para. 76.

[33]        In Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, 265 O.A.C. 247, leave to appeal to S.C.C. refused, 33613 (July 18, 2010), at para. 230, this court provided additional guidance:

A determination of whether a trial judge’s interventions give rise to a reasonable apprehension of unfairness is a fact-specific inquiry and must be assessed in relation to the facts and circumstances of a particular trial. The test is an objective one. Thus, the trial record must be assessed in its totality and the interventions complained of must be evaluated cumulatively rather than as isolated occurrences, from the perspective of a reasonable observer throughout the trial.

[34]       And again at para. 233:

The reasons a trial judge may properly intervene include the need to focus the evidence on the matters in issue, to clarify evidence, to avoid irrelevant or repetitive evidence, to dispense with proof of obvious or agreed matters and to ensure that the way a witness is answering or not answering questions does not unduly hamper the progress of the trial.

[35]       This trial required a more proactive approach than is customary. I have reviewed those instances in which the trial judge intervened in the examination of witnesses. In most cases, they were motivated by an effort to focus the evidence on the matters in issue, clarify evidence and move a difficult trial along. In a few instances, the trial judge’s questions were inappropriate, his language was ill-advised, or he transmitted his reaction to the distressing evidence that he heard.

[36]       Some of the trial judge’s conduct reflected his impatience and annoyance. The trial judge acknowledged this. In his orally delivered reasons, he apologized to the parties for his impatience at times. He explained: “I heard far too much evidence about things that were irrelevant, most of which Mr. Martin insisted upon presenting, despite my frequent entreaties to focus on the main issue”.

[37]       While judges are expected to conduct the proceedings before them in a courteous and civil manner, and I cannot condone the trial judge’s expressions of impatience and annoyance, “[i]solated expressions of impatience or annoyance by a trial judge as a result of frustrations … do not of themselves create unfairness”: Chippewas, at para. 243.

[38]       As the respondent argues, the trial judge made clear efforts to assist the appellant. For example, he provided instructions on how to call and subpoena witnesses, gave the appellant an extension of time to provide a list of witnesses, and attempted to help the appellant to focus his evidence and structure his questions. He also interrupted the evidence to ensure that the appellant understood the main issues in the proceedings and the implications of the proceedings.

[39]       I have also considered those instances in which the trial judge’s comments or questions were inappropriate. If taken alone, these statements could create the impression that he favoured the respondent’s case over the appellant’s. However, I am not satisfied that when considered in the context of the trial, as a whole, a reasonable person would have the impression that the trial judge was predisposed to decide the issues before him in favour of the respondent.

No comments: