Preferring the evidence of a police witness as having extra credibility is not proper

Laver v. Swrjeski, 2014 ONCA 294 deals with reasonable apprehension of bias.   Preferring the evidence of a police witness as having extra credibility is not proper:

Issue 1: Did certain comments made by the application judge during the argument of the application create a reasonable apprehension of bias?

[17]   The issue of reasonable apprehension of bias was most recently discussed and considered by this court in Martin v. Sansome, 2014 ONCA 14. In that case, the context was interventions by a trial judge during the examination of witnesses. This court set out the legal framework for the assessment of bias in the following passage at paras. 31-33:

[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.

[18]   In Martin v. Sansome, the appellant was a self-represented litigant. The trial judge tried to help him with procedural issues, but was apparently impatient and frustrated with the slow progress of the trial. On appeal, the court concluded, at para. 39, that, although some of the trial judge’s comments could create the impression of favouring the respondent when viewed in isolation, when the entire record was viewed as a whole, the court was not satisfied that “a reasonable person would have the impression that the trial judge was predisposed to decide the issues before him in favour of the respondent.”

[19]   In this case, the comments of the application judge did not come in the context of witness testimony but during the oral argument of the application. The application judge made two types of comments that could raise a concern in the mind of a reasonable person that he was predisposed to decide the issues before him in favour of the respondent.

[20]   The first were comments about the credibility of police officers and his concern about making an adverse credibility finding about a police officer. In this case the respondent and his common law wife were officers while the appellant, the mother, was not.

[21]   The second was a number of adverse comments about the credibility of the appellant which were based on misapprehensions of the evidence or the law.

[22]   The following are examples of some of the comments made by the application judge:

Excerpt group #1:

Mr. Spiteri: …That has to be viewed in light of all of the evidence. As the Court of Appeal said itself, you look at it all, including the credibility of the witnesses, the credibility of the parties. In terms of the evidence, you have the affidavit evidence. In terms of the evidence, you have Affidavit evidence…

The Court: Okay, let me stop you there. That’s my concern, gentlemen, and let me just lay it on the line. Someone is not being truthful, and we have police officers, whom I know and respect and, gentlemen, you’re asking me to make a finding that one of them isn’t being truthful, and I’m prepared to do that, but there’d better be some strong, strong evidence.

…

I have to make a finding of credibility, and I don’t want to do that with police officers and with senior police officers, because I – as my recently deceased father said, “Your reputation is like your virginity, son. You lose it once”, and I don’t want to make a decision on the record, available to the public, where I am forced to say one side is being truthful and one side is not, so I simply – that’s the elephant in the room, gentlemen, because of what these folks do for a living. I wouldn’t be so concerned if they were federal civil servants. Frankly, I wouldn’t be concerned at all, but they are Ottawa police officers, who I have huge respect for, given that I was a defence lawyer for 23 years, and reputation is all they have. It’s all we have as lawyers, judges, everybody, so I’m just letting you know. I’m very troubled by what I may have to do.

…

… I’m going to make a finding that someone is not being truthful, and if I’m a police officer or a judge or a lawyer or somebody else, I don’t want somebody making a finding that I’m not truthful, and unless there’s some other way that I can decide this case without making that finding, I don’t know how I can. I don’t know, gentlemen, I’m asking.

...

But you understand my concern and my uber-sensitivity given that I’ve work – you know, I’ve done cases with all these officers. I don’t know them personally. I know them professionally, and so that’s my – and maybe I’m being over-sensitive here because of my background, but all you have is a reputation, gentlemen…

…

Mr. Spiteri: And I do want to qualify this, Your Honour. I’m not suggesting that Mr. Swrjeski is a liar. That’s not what I’m suggesting.

The Court: Okay, thank goodness, because I’m going to have a real hard time making that kind of finding. I think, except being called a child molester, being called a liar is about the about the worst thing you can possibly be called.

Mr. Spiteri: That’s not…

The Court: Okay, so I just – okay, that makes me feel much better, because I’m not comfortable using that word with professional people.

…

The Court: Take your time, please, because I can tell you both, gentlemen, this case is not going to be decided – I’m not going to make any finding nailing anybody’s reputation here. The case is going to be decided based on the evidence and based on the balance of probabilities, but there’s no way that I’m going to make a finding that either one of your clients is lying or misleading or anything like that; not going to happen.

It’s based on evidence, just so we’re clear, so when you’re making your reply you might want to deal with that issue, because I’m very uncomfortable because I know these people. I worked with them for a long time, so I even thought, frankly, I was going to excuse myself, but then I thought, no, I don’t know them that well. I’ve never, you know, socialised with them ever. I’ve just had them as – when they accused my client of wrongdoing- or clients. Anyway, go ahead. Carry on.

…

Excerpt group #2:

The Court: Because just by her own financial statement, the woman at the very least is worth over a hundred grand, so that’s – I have a problem with that poor as a church mouse impression when the reality is, you know, you’re not. (Referring to the appellant)

…

Excerpt group #3:

The Court: … So I’m just saying: that causes me a great deal of concern when basically the only document that you can refer to as a so-called “document” is this one where he says “Owed to Louise, 35,000” and then he gives an explanation saying “Look, take the money. As long as I have my daughter I’m fine”. That’s your strongest piece of evidence versus the other. So we’re going to take 10 minutes, speak to your client and see if we can come up with some explanation or something, because you know, worst case scenario, she’s sworn a false affidavit. Best case scenario, there’s a confusion or a misunderstanding about filling out the form and whoever her family lawyer was didn’t explain it to her properly. But you can’t say you’re paying these expenses when the evidence is you’re not paying a dime. I have a concern about that.

…

Excerpt group #4:

The Court: … Go to part 7-F, counsel. “Money owed to you”. Why is that zero? If she regarded this money as a loan why is that zero? Even 35 – like, I can understand not putting 70. I get that, because half of it is her daughter’s. I understand that. But why doesn’t she indicate that “I’m owed 35,000 by my son-in-law”?

Mr. Spiteri: And I go back to what I said earlier. The two, Mr. and Mrs. Laver, had treated this inheritance – remember: these documents were prepared for purposes of NFP. It was for family law purposes.

The Court: Sure.

Mr. Spiteri: And she…

The Court: But they still have to be accurate, Mr. Spiteri.

Mr. Spiteri: Fair enough. And all…

The Court: And you’re under oath. 

…

Excerpt group #5:

The Court: Well no. A disability payment is tax free,

Mr. Spiteri. I know that.

Mr. Spiteri: It says “income tax deducted from pay”.

The Court: Well, that might well be, but what I do know is a disability pension is tax free. So maybe she has some other monies coming in but you don’t – it’s illegal to tax a disability pension. You can’t tax it.

Mr. Spiteri: I think, Your Honour, that’s dependent on who paid the premium.

The Court: Okay.

Mr. Spiteri: If the premium was paid exclusively by the insured, then that’s quite right, that’s the case.

The Court: Is your client paying income tax or not?

Mr. Spiteri: Well, I’m only looking at this. And it’s saying here $264 is paid in income tax.

The Court: Well why don’t you ask her? She’s here. Was her disability pension tax free or not?

Ms. Laver: No, it wasn’t.

Mr. Spiteri: It was not tax free.

The Court: Okay. All right. Go ahead.

[23]   Excerpt group 1 contains the comments by the application judge where he indicates that he would have trouble making a credibility finding against a police officer, and later suggests that he had considered recusing himself because of his feelings of connection to Ottawa police officers with whom he used to work when he was in legal practice as a criminal lawyer.

[24]   As it turned out, the application judge believed the respondent, a police officer, and accepted his explanation for disowning the document that on its face is an acknowledgement of debt to the appellant. He disbelieved the appellant, who is not a police officer.

[25]   Applying the test for reasonable apprehension of bias, in my view it is clear that a reasonable observer would conclude that it was more likely than not that, consciously or unconsciously, the application judge would not impartially decide whom to believe. The application judge’s comments indicate his partiality to the evidence given by police officers. Even though he gave other reasons for deciding whose evidence he believed, those reasons are tainted by his comments.

[26]   Excerpts 2, 3 and 4 are examples of comments about the appellant’s credibility, and where the application judge asked counsel to ask the appellant for an explanation, although there was no oral evidence being taken. Again, in my view, the application judge’s comments created a reasonable apprehension of bias, by making clear that he challenged the appellant’s explanations for perceived inconsistencies in documents that were collateral to the application, and that, before the conclusion of the application, he had decided that he did not believe the appellant.

[27]   Finally, excerpt 5 is an example of the application judge’s comments regarding an issue of the taxability of a disability pension. The application judge was mistaken on the issue but appeared to insist on his view in the face of the evidence to the contrary on the appellant’s document, which specifically stated that tax had been deducted. Based on his misunderstanding regarding the taxability of the pension, the application judge appeared to conclude that the appellant had kept more money from her pension than she actually had indicated. In my view, the application judge’s attitude towards the evidence of the appellant added to the impression of a reasonable observer that the application judge would be unable to assess the appellant’s evidence with impartiality.

[28]   In aggregate, these comments, when considered in the context of the hearing as a whole, would cause a reasonable person to believe that the application judge was predisposed to make the credibility determinations before him in favour of the respondent.