Tuesday, October 7, 2014

An annoyed judge may disqualify themselves

Cabana v. Newfoundland and Labrador, 2014 NLCA 34 :

[45]        The manner in which a judge conducts a hearing may result in a reasonable apprehension of bias disqualifying the judge from hearing proceedings involving a particular litigant.  As a general rule, the patient and courteous treatment of all litigants will serve to maintain the community's confidence in and respect for the courts and the justice system (Ethical Principles of Judgessupra, under "Adjudicative Duties").  In this context, the fact that a litigant is not represented by counsel may be a relevant consideration.   

[46]        In this case, Mr. Cabana submits that the judge exhibited hostility towards him and did not appear to approach his case with an open mind.  He submits that this was particularly exhibited in the judge's response to his attempt to present evidence to support his request that she recuse herself.          

[47]        On the Friday before the hearing on recusal, set to commence on the following Monday, the judge advised Mr. Cabana to assemble his facts.  Mr. Cabana did not have legal counsel.  He was left to determine what facts he should marshal and how he should obtain them.  This was not an obvious or easy task.  

[48]        When Mr. Cabana sought to enter the information regarding the judge's pre-appointment political donations, the judge could have explained to Mr. Cabana why the information was not relevant and would not be considered, or she could have received the information and dealt with it in her recusal decision.  Instead, the judge responded to Mr. Cabana using intemperate and hostile language.  Key quotations from the transcript of proceedings at the February 25thhearing are as follows:


Q.        … It seems to me that you spent a great deal of energy on the weekend researching my prior life and you now want to seek to rely on political donations that were either made by me personally or that are being made or have been made by my husband's firm as part of the assertions relative to the impartiality claim.


Q.        … Now I want to caution you, Mr. Cabana, that I think you've crossed the line here, okay?


Q.        … While judges are subject to appropriate scrutiny, what I expect from you and from all the counsel that are here from you today and every day is a focus on what's relevant … .  So when documents are forwarded to the Court or when statements are made that become vexatious, scandalous or embarrassing, there are consequences, but if somebody gets out of line in a courtroom, there are other types of consequences … .  Findings of contempt can be made. …


Q.        I want you to treat this as a warning from me …


Q.        … I'm not going to entertain any reference from you of contributions made by anybody to political parties as far back as 1996 …  I became a Justice of this Court in March of 2007 and I consider these types of things to be irrelevant, pre-appointment matters that suggest  ̶  I'm going to say suggest for the moment – a vendetta.  Okay, and this is where I think you crossed the line.


Q.        A vendetta.  So that's where I think you crossed the line, so do not in your arguments or any further submissions that you are going to make on this issue of impartiality, get into that, … 

(Emphasis added.)

[49]        Clearly, the judge was offended that Mr. Cabana sought to use her pre-appointment political donations as a basis for reasonable apprehension of bias.  That is understandable, but by her words she demonstrated what could reasonably be considered to be an animus against Mr. Cabana.  Impartiality and an open ear are critical for the judicial role. 

[50]        If the judge had briefly adjourned and upon returning to the bench received Mr. Cabana's submissions on donations, if she had indicated that she had spoken in haste and assured Mr. Cabana that his application would be impartially dealt with, the reasonable and right-minded person at the back of the courtroom that day would have had their concerns assuaged.  No such "rescue" of the situation was made

1 comment:

Ernest Julius Guiste said...

Interesting point Mr. Morton !