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.