In a recent (and very odd) decision - R. v. H. (C.D) 2015 ONCA102 - the Ontario Court of Appeal set aside a trial judge’s acquittals of an accused on a number of charges including sexual assault, possession of a weapon and unlawful confinement and ordered a new trial on the grounds that the trial judge’s conduct gave rise to a reasonable apprehension of bias.
The trial judge had acquitted the accused of sexual assault of his wife, but had found him guilty of the included offence of simple assault. However, before sentencing the accused, the trial judge declared a mistrial based on a reasonable apprehension of bias that arose out of a meeting that he had in his chambers with the police officer in charge of the case immediately after he delivered the reason for his verdicts.
During the break between the verdict and the decision on sentencing, the trial judge asked to see the officer in charge of the case in his chambers. When she arrived the judge told her she had missed valuable evidence. The evidence at trial had been that the complainant and the accused had met on a website called Match.com and during the alleged sexual assault encounter, the accused had become angry and searched the website to see the complainant’s other contacts on the site. The judge told the officer that he had gone on to the website the night before and created a fake profile of himself. The judge said that had defence counsel done the same thing, she would have been able to "hang the victim with all of the available information" because a large amount of information was entered on the site including how many drinks a desired partner should consume.
In setting aside the acquittals and ordering a new trial, the Court of Appeal (Justices Laskin, Feldman and Simmons) held that two considerations supported their conclusions: (1) in declaring a mistrial, the trial judge himself recognized that the verdicts were tainted by reasonable apprehension of bias; and (2) the conduct of the trial judge in conducting his own evidentiary research while the decision was under reserve – whether or not he had already written his reasons or had accessed any actual details about the complainant – and his comment to the officer about using website information to “hang” the complainant, created the appearance of bias.
The long-accepted test for reasonable apprehension of bias was set out by de Grandpré J., in a Supreme Court of Canada case - Committee for Justice and Liberty v. Canada (National Energy Board), as follows: “The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question obtaining thereon the required information…the test is “what 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.”
Further, the Court of Appeal held that in order to maintain public confidence in the administration of justice, the appearance of judicial impartiality is as important as the reality.
The trial judge’s conversation with the officer about the evidence tainted the perceived fairness of the process. Conducting his own research was contrary to the basic principle that judges and jurors must make their judicial decisions based only on the evidence presented in court on the record.
His comment to the officer about “hanging” the complainant may have had an innocent explanation, but viewed objectively, from the standpoint of a reasonable person, it created the impression that consciously or unconsciously the trial judge would not decide fairly and in particular would not fairly decide the credibility of the complainant. The Court of Appeal cited instances in the trial record where the judge had commented negatively about the complainant and her credibility.