The Supreme Court of Canada recently released a decision
which established the test for determining bias in a trial judge. In the
case of Yukon Francophone School Board, Education Area #23 v. Yukon
(Attorney General), 2015 SCC 25, the Supreme Court partially allowed an
appeal from the Court of Appeal for the Yukon.
In this case, the Yukon Francophone School Board (“School
Board”) which had responsibility for one school, a French-language school
founded in 1984, sued the Yukon government for what it claimed were
deficiencies in the provision of minority language education. The trial
judge ruled in the School Board’s favour on most issues.
The Yukon government appealed to the Court of Appeal which
concluded that there was a reasonable apprehension that the trial judge was
biased based on a number of incidents during the trial as well as the trial
judge’s involvement as a governor of a philanthropic francophone community
organization in Alberta. The Court of Appeal ordered a new trial.
The School Board appealed the matter to the Supreme Court of
Canada. The Supreme Court partially allowed the appeal and agreed with
the Court of Appeal’s conclusion that there was a reasonable apprehension of
bias requiring a new trial.
The Supreme Court held that the test for a reasonable apprehension
of bias is what would a reasonable, informed person think? It ruled that the objective of such a test is to protect public confidence in the legal
system by ensuring not only the reality but the appearance of a fair
adjudicative process. The Court held that impartiality and the absence of bias have developed
as both legal and ethical requirements. Judges are required and expected
to approach every case with impartiality and an open mind. Judicial
impartiality and mutuality do not mean that a judge must have no prior
conceptions, opinions or sensibilities. However, they require that the
judge’s identity and experiences not close his or her mind to the evidence and
the issues.
In this case, the court found that the threshold for finding
a reasonable apprehension of bias had been met. In addition to several
disparaging and disrespectful remarks made by the judge to counsel for the
Yukon, several incidents, when viewed together, led to the conclusion.
- On one occasion, counsel for the Yukon attempted to cross-examine a witness based on confidential information. After hearing some argument on the issue, the judge told counsel that he would entertain addition arguments on the following day. However, he started the next day’s proceeding with a ruling against the Yukon without giving the parties an opportunity to present further argument.
- He then characterized Yukon’s behaviour as reprehensible and accused counsel for the Yukon of playing games.
- When Yukon requested to submit affidavit evidence from a witness who had suffered a stroke, the judge accused counsel for the Yukon of trying to delay the trial and suggested that he was acting in bad faith. He warned counsel for the Yukon that he could be ordered to pay costs personally if he brought the application. The Supreme Court held that there was no basis for the accusations.
- The judge refused to allow Yukon to file a reply on the costs after the trial. After releasing his reasons on the merits, the judge required each party to file their costs submissions on the same day. The School Board sought solicitor and client costs, punitive damages and solicitor and client costs retroactive to 2002. The trial judge refused to allow the Yukon to file a reply factum which the Court of Appeal held was a mistake.
The Supreme Court held that all of these incidents taken
together and viewed in their context would lead a reasonable and informed
person to see the trial judge’s conduct as giving rise to a reasonable
apprehension of bias.
However, the Supreme Court held that the Court of Appeal
had erred when it concluded that the trial judge’s current service as a governor of
the francophone organization substantially contributed to a reasonable
apprehension of bias. The court held that membership in an association
affiliated with the interest of a particular race, nationality, religion, or
language was not, without more, a basis for concluding that a perception of
bias could reasonably said to arise. The court held that Canada has
devoted a great deal of effort to creating a more diverse bench. That
very diversity should not operate as a presumption that a judge’s identity
closes the judicial mind.
Regards,
Blair
