In a recent decision (Clayson-Martin v. Martin,
20015 ONCA 596), the Court of Appeal for Ontario overturned a family trial
judge’s decision on the basis of a reasonable apprehension of bias.
The case involved a custody and access dispute over children
aged 10 and 7. At trial, the judge granted the wife sole custody of the
children. The wife appealed that decision because it provided for the
children to have generous access to the husband. The wife submitted that
access should have been terminated because the husband tried to kill her.
The case garnered some notoriety in the news because of the alleged attempted
murder. The couple separated as a result of an incident which occurred
while they were on vacation in Jamaica. Each party alleged that at the
end of the vacation, while they were on a deserted road from which the husband
had wanted to photograph their hotel, the other attacked with a knife.
The marriage was in trouble in 2010. The wife wanted
to separate from the husband. He persuaded her to go on one last trip
with him to Jamaica for a week in December to try to save the marriage.
After leaving the hotel on December 23, 2010, the husband
drove the wife to a secluded road where on the wife’s evidence, he slit her
throat, forced her into the vehicle after she attempted to flee, strangled her
and then drove 17 kilometres before she was able to jump from the moving
vehicle and escape. She was taken to a hospital by a passerby.
On the husband’s evidence, he testified that the wife
attacked him with a knife. He assumed, although he did not see, that she
sustained a wound on her neck by her own hand when he, in self-defence, pushed
her hand bearing the knife away from him. This story differs from the one
he told Jamaican police at the time of the incident. At that time he said
that his wife was injured by a Jamaican man who had attempted to rob the
couple.
Surprisingly, the trial judge concluded that he could not
find on a balance of probabilities that the husband had attacked the wife and
that if anything, the evidence “tilts in the opposite direction”. He was
not prepared to make a finding either way.
Before the Court of Appeal, the wife’s counsel began her
argument by outlining the facts that were not in dispute:
- the wife suffered a knife wound to her throat, 10 cm in length extending from ear to ear, and which caused profuse bleeding;
- there were only two people present at the time, the wife and the husband;
- the wife suffered a deep cut to her thumb;
- the husband suffered no knife injuries;
- the husband forcibly carried the wife back to the car, shoved her in the driver’s side and held her as he drove from the scene;
- the husband drove for 10 kilometres with the wife bleeding profusely and did not stop once to get help;
- the husband also drove into a dirt road during this time;
- the wife was observed to have her feet dangling out of the car and screaming for help;
- the wife either jumped, was pushed, or slipped out of the moving car;
- the husband, after the wife exited the car, continued to drive, leaving the wife with her throat slit by the side of the road;
- the husband did not stop or use his cell phone to get help;
- the husband repeatedly told police that a big Jamaican man had attached them, slit the wife’s throat and fought with them;
- the husband admitted that the story he told police involving a Jamaican man was a complete fabrication;
- his stated reason for telling this lie was to protect his wife from being charged with his attempted murder;
- the husband maintained this lie even after he was arrested and charged with attempted murder of his wife;
- the wife’s version of what occurred has been consistent throughout: “my husband slit my throat”.
There were several grounds of dispute including that the
trial judge’s conduct during the trial raised a reasonable apprehension of
bias.
On that issue, the Court of Appeal found as follows:
“The test for bias is well settled – would a reasonable
and informed person viewing the matter realistically and practically and having
thought it through, conclude that the judge, consciously or unconsciously would
not decide fairly.”
The objective of the test is to ensure not only the reality,
but also the appearance of a fair and adjudicated process. The court
found that the trial judge did not analyse the evidence that came from an
independent witness that collaborated the wife’s version of the event.
Instead he rejected the entirety of this evidence because of a minor
inconsistency – an inconsistency by which he was also mistaken in the
detail. The trial judge was dismissive of expert evidence which supported
the wife’s version of the events. Again, he focused on a minor inconsistency.
The trial judge was extremely critical of the wife’s
evidence, which was troubling in contrast to the generosity with which he
treated inconsistency in the husband’s evidence. While the wife’s
inconsistencies were all emphasised, the significant and material
inconsistencies in the husband’s evidence were ignored. This suggested an
uneven treatment of the evidence and amounts to an error of law.
When questioning witnesses himself, the trial judge appeared
to be filling holes in the husband’s testimony.
The trial judge was extremely rude and disruptive of the
wife’s counsel.
In the end, the court found that the trial judge
committed several reversible errors. The trial judge relied on inadmissible hearsay
evidence that permeated his entire credibility analysis. He treated the
evidence of the parties unevenly in a way that gave rise to a reasonable
apprehension of bias and amounted to an error in law. Lastly, he
failed to consider the full range of factors effecting the best interest of the
children which also constituted a reversible error. As a result of these and other errors, the
court set the decision aside and ordered a new trial.
Regards,
Blair
