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Bias in Adjudicators - Remedies. R. v. Dalia
In R. v. Dalia (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, this brought against "convictions for possession of fentanyl and cocaine for the purpose of trafficking and for possession of the proceeds of crime".
The court considers 're-litigation', here of an evidentiary application after the first judge recused themselves:[18] The parties agreed that the application to relitigate should be determined by analogy to s. 653.1 of the Criminal Code, R.S.C. 1985, c. C-46. This section provides that rulings on the admissibility of evidence are presumptively valid in new proceedings following a mistrial. Goodman J. accordingly applied the test set out by this court in R. v. Victoria, 2018 ONCA 69, 359 C.C.C. (3d) 179, with respect to s. 653.1 applications.[2] To rebut the presumptive incorporation of prior rulings in subsequent proceedings, a party must demonstrate, on a balance of probabilities, that “it would not be in the interests of justice” that the prior rulings bind the parties in the later trial: Victoria, at para. 52.
[19] Goodman J. correctly noted that the factors relevant to the “interests of justice” listed at para. 55 in Victoria do not include any reference to a possible legal error as the basis for relitigating a motion. But even if a legal error were an avenue available to permit relitigation under s. 653.1, he was not persuaded that Krawchenko J.’s ruling disclosed an error. Goodman J. furthermore declined to find that the ruling was “so intertwined with the impugned commentary about the strength of the warrant itself, that it is impossible to divorce one from the other and as a result the entire ruling must be relitigated.”[3]
[20] The appellant contends that Victoria is distinguishable, because the motion to relitigate in that case was not premised on a reasonable apprehension of bias. I disagree.
[21] As Goodman J. observed, this case is factually on all fours with Victoria. At the outset of his trial, Mr. Victoria applied for leave to cross-examine the author of the ITO used to obtain the search warrants. After dismissing the application from the bench, the trial judge undertook to provide written reasons for his ruling. A few weeks later, however, he instead gave reasons explaining why he had determined that the evidence obtained through the search warrants should be admitted. This was problematic because no arguments had yet been heard either on this issue or on the validity of the warrants. Mr. Victoria’s counsel sought a mistrial, which the trial judge granted.
[22] When the trial resumed before a new trial judge, the Crown sought a ruling that he was bound by the first trial judge’s dismissal of the application to cross-examine. The defence argued otherwise. The trial judge found in the Crown’s favour on this issue. He ultimately convicted Mr. Victoria after determining that the search warrants were valid and that the evidence obtained through their execution was admissible.
[23] Mr. Victoria appealed his convictions, arguing the trial judge erred in concluding he was bound by the ruling made prior to the mistrial refusing leave to cross-examine. This court dismissed the appeal. It deferred to the trial judge’s decision, finding that he had not erred in law, erred in principle, failed to consider a relevant factor or considered an irrelevant factor, and that his decision was not plainly unreasonable: Victoria, at para. 57.
[24] In Victoria, the defence sought a fresh opportunity to argue for leave to cross-examine an affiant, in part on the basis that the application judge had expressed a view on the ultimate validity of the warrant prior to hearing argument on it. Mr. Victoria did not propose to rely on any fresh evidence or argument. This court characterized this as an attempt at “relitigation, pure and simple in the hope of achieving a different result, the very consequence Parliament sought to avoid when it enacted s. 653.1”: Victoria, at para. 59.
[25] Goodman J. reached the same conclusion here, on the same reasoning. He noted this court’s determination in Victoria, at para. 54, that the “interests of justice” to be considered under s. 653.1 include not only the parties’ interests but the “interests of the public, including its interests in timely and efficient criminal trials, the effective use of limited court resources, finality and the integrity of the criminal trial process”.[4] He found that, as in Victoria, the basis for seeking leave to cross-examine remained “essentially the same”; “there [was] no new evidence that ha[d] arisen in this matter” nor were there any “substantive, new arguments to be advanced.” He further found that, as in Victoria, there was “no articulable prejudice to the applicant in denying re-litigation”, given the appellant’s right to appeal Krawchenko J.’s ruling.[5]
[26] The potential bias of the judge who dismissed the application for leave to cross-examine in Victoria was, as here, a premise of both the motion to relitigate and on appeal. In his submissions on the mistrial motion, Mr. Victoria contended that “dismissal of [the] s. 8 challenges to the searches and [the] motion to exclude the evidentiary fruits of those searches under s. 24(2), without having heard argument on either issue, gave rise to a reasonable apprehension of bias”: Victoria, at para. 13. The second trial judge found that the denial of an opportunity to relitigate would not prejudice the defence: Victoria, at para. 33. Before this court, Mr. Victoria argued that the proceedings preceding the mistrial were procedurally unfair, and this procedural unfairness warranted departure from the presumptive application of prior rulings in later proceedings and required a new trial: Victoria, at para. 36. This is the same broad argument advanced by the appellant in this appeal, which, as in Victoria, I would also reject.
[27] Second, there is no basis to find that, following Krawchenko J.’s self-recusal, Goodman J. erred in concluding that relitigation was not in the interests of justice. The appellant contends that Krawchenko J.’s remarks at the end of his decision refusing leave to cross-examine indicate bias and cannot be severed from the rest of his decision. I disagree. . Vento Motorcycles, Inc. v. Mexico
In Vento Motorcycles, Inc. v. Mexico (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, this from a Chapter 11 decision by a three-arbitrator NAFTA tribunal, here against Mexico.
Here the court considers it's consequential response to a finding of bias, what it refers to as it's remedy:Remedying a breach of procedural fairness
[29] The common law has historically been strict in response to a breach of procedural rights. A failure to provide a fair hearing has resulted in the quashing of the substantive decision, regardless of the result that might otherwise have obtained. It has never been necessary for an applicant seeking relief to establish that the outcome of the relevant decision would – or even might – have been different but for the unfair hearing procedure. Procedural fairness is “an independent, unqualified right” rooted “in the sense of procedural justice which any person affected by an administrative decision is entitled to have”; courts may not “deny that right and sense of justice on the basis of speculation as to what the result might have been”: Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, at p. 661.
[30] Exceptions are rare and demonstrate the strength of the rule. Courts will sustain decisions marred by procedural errors only in highly unusual circumstances. For example, in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R. 202, the Supreme Court held that Mobil Oil had established a breach of procedural fairness but declined to quash the decision at issue because its disposition of the legal question before it guaranteed that Mobil Oil would be unsuccessful on a rehearing. The court emphasized that “the apparent futility of a remedy will not bar its recognition” but explained that circumstances are different when the answer to a legal question is inevitable: Mobil Oil, at p. 228 (emphasis added).
[31] The rule against bias is stricter still. No matter what gives rise to a reasonable apprehension of bias, once the finding is made the adjudicator is disqualified. If a decision has already been reached, the decision is void. As Cory J. explained on behalf of a unanimous Supreme Court of Canada, “it is impossible to have a fair hearing or to have procedural fairness if a reasonable apprehension of bias has been established”. Moreover, “[t]he damage created by apprehension of bias cannot be remedied. The hearing, and any subsequent order resulting from it, is void”: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623, at p. 645. This principle has been reaffirmed by this court. See, e.g., Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856, 272 O.A.C. 177, at para. 64.
[32] This approach reinforces the seriousness of an apparent failure of impartiality. No one whose rights, interests, or privileges are at stake can be required to accept a decision made by an adjudicator whose ability to decide fairly is – for whatever reason – reasonably in doubt. The importance of the rule against bias transcends the interests of the parties to a particular dispute: bias is intolerable in any system that aspires to the rule of law. The finding of a reasonable apprehension of bias requires the disqualification of an adjudicator and the nullification of any decision they have made. Nothing less will do.
[33] Of course, courts have the inherent authority to control their own processes and to protect them from abuse. They may refuse to entertain an allegation of bias if, for example, the applicant for relief has not acted conscientiously by raising the bias allegation at the earliest opportunity. In these circumstances the court may find that the applicant has waived the protection of the rule against bias by raising it for tactical purposes. But the common law does not establish a discretion to refuse to remedy a reasonable apprehension of bias because the finding is for some reason not considered sufficiently serious, or because it would be somehow inconvenient to provide the required remedy. A finding of a reasonable apprehension of bias is necessarily serious and must be made in the knowledge of the result that follows: the adjudicator is disqualified and the substantive decision is void.
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