Simon's Megalomaniacal Legal Resources

Bias in Adjudicators - Unfavourable Comments

. R. v. B.C.M.

In R. v. B.C.M. (Ont CA, 2023) the Court of Appeal considered a judicial bias argument in a criminal appeal where the court characterized the defendant behaviour in extreme moral terms. The defendant received a sentence of twelve years for "sexual assault causing bodily harm, sexual exploitation, uttering threats, incest, and making and possession of child pornography" against his biological daughter:

Is there a reasonable apprehension of bias?

[21] The appellant contends that the trial judge’s use of language in her reasons to describe the appellant and his actions was overly severe and displaces the presumption of judicial impartiality and meets the very high threshold of a reasonable apprehension of bias against him. In support of his submissions, the appellant points to the trial judge’s highly critical descriptions of his testimony, such as: “[t]he best he could do”, “outlandishly denied”, “shocking lies”, “descended to the loathsome depth of incriminating [his son]”, and “as futile as it is absurdly self serving”; and of his actions, for example: “wanton viewing pleasure” and “[d]espicable is an understatement”. In particular, the appellant highlights the following passage that appears at the end of the trial judge’s conclusion on the sexual offences:

[The appellant’s] take no prisoners, scorched-earth defence strategy etches a stunning picture of depravity and heartlessness. What I see is a father with callous disregard for the wellbeing and plight of his daughter and his baby and a profound indifference towards his young son. By any measure [the appellant] has transcended the bounds of human decency. He will live on in ignominy for his deeds.

[22] The appellant submits that the trial judge’s use of language was intemperate and unnecessary to her analysis, and that her apparent disgust with the appellant and his actions is so palpable in her written reasons that it must have seeped into her analysis and caused her to lose objectivity.

[23] We start our analysis of this ground with a review of the governing principles. The test for bias is well established: “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude”, as to whether “it is more likely than not that [the trial judge], whether consciously or unconsciously, would not decide fairly”: Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting, but not on this point). There is a high threshold and a heavy burden on the party who seeks to rebut the strong presumption of judicial impartiality: R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 32, per L’Heureux-Dubé and McLachlin JJ, at para. 113, per Cory J.; R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at paras. 84-85, citing R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18. In assessing the question of bias, the trial judge’s actions and reasons must be viewed as a whole and in the context of the entire proceeding: R.D.S., at para. 141, per Cory J.

[24] Trial judges have the discretion and independence to write their decisions as they see fit. To the extent that their use of language is unrestrained, they risk courting allegations of bias. Judicial restraint is necessary to uphold public confidence in the impartiality of the judiciary. While trial judges are human and are not expected to remain as immovable as a statue, as this court noted in R. v. P.G., 2017 ONCA 351, 138 O.R. (3d) 343, at para. 50, “[a] trial judge's duty is to try the case impartially – without favour or prejudice. His personal feelings about the appellant were irrelevant and ought not to have played any role in his decision.”

[25] The trial judge’s use of strong language was unnecessary for her determination of the issues before her and detracted from what was otherwise an excellent analysis. That said, to the extent that the trial judge’s comments may be seen to be overly strong, they do not suggest a reasonable apprehension of bias. When her comments are seen in their proper context, they do not demonstrate a closed mind against the appellant. See: R. v. McCullough, 1998 CanLII 6208 (Ont. C.A.), at para. 17, leave to appeal refused, [1999] S.C.C.A. No. 37.

[26] The trial judge’s reasons must be considered as a whole and in the context of the entire trial. Each case turns on its own facts. The circumstances of this case are different from the situation in P.G., on which the appellant relies. P.G. involved allegations that the minor complainant was repeatedly sexually assaulted by her mother’s boyfriend. Unlike the present case, the trial judge’s intemperate use of language permeated the trial proceedings and seeped into his reasons. The outcome of the trial turned on the trial judge’s credibility assessments of the witnesses, since, unlike here, there was no physical evidence like DNA or cellphone evidence. His credibility assessments of the complainant’s mother and her boyfriend contained very little analysis but were largely filled with sarcastic invective and denigrating comments. For example, as this court noted at para. 47 of its reasons, in assessing the evidence and demeanour of the accused, who was from Australia, the trial judge “viewed his crying [when he testified] as being nothing more than crocodile tears. They have large crocodiles in Australia”. This court found that the trial judge clearly engaged in uneven scrutiny of the Crown and defence evidence as he rejected all of the accused’s evidence effectively because of minor inconsistencies. A new trial was ordered.

[27] Here, the appellant limits his critique of the trial judge’s submissions to a few isolated passages in the trial judge’s detailed reasons. He does not allege, nor does the trial transcript indicate, that there is any suggestion of bias towards or unfair treatment of the appellant throughout the proceedings. Indeed, the trial judge allowed the appellant’s s. 276 application under the Criminal Code to admit evidence of the complainant’s other sexual conduct and worked with the parties on the areas of questioning to be allowed. Moreover, for the reasons earlier indicated, there is no basis to conclude that the trial judge engaged in an unfair or uneven scrutiny of the evidence. Her reasons demonstrate a thorough, even-handed consideration of the evidence and a correct application of the relevant legal principles. In particular, she analyzed separately the effect of the DNA paternity evidence and fairly recognized that the finding of guilt on a singular incident of sexual assault did not prove the commission of the other offences. As a result, she carried out a detailed, independent assessment of the evidence related to each of the other charges. The trial judge’s analysis and conclusions were unaffected by her expressed repugnance for the appellant’s offences.

[28] For these reasons, we reject the appellant’s contention that the trial judge’s analysis and conclusions were tainted by a reasonable apprehension of bias. The appellant received a fair trial.

. Anthony v. Vinczer

In Anthony v. Vinczer (Ont CA, 2022) the Court of Appeal identifies comments made by a judge that do not reflect bias:

[6] The appellant failed to make out a proper foundation for the bias allegation. Inevitably, in ongoing proceedings between parties that are heard by the same judge, comments are necessarily going to be made by the judge disposing of a particular step in the proceeding that a party may not like. That reality does not establish bias on behalf of the judge concerned. An informed person, viewing the matter realistically and practically, would not conclude that unfavourable comments of the type involved here would amount to a showing of bias by the presiding judge: Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting); Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21.

. Kahsai v. Hagos

In Kahsai v. Hagos (Ont CA, 2022) the Court of Appeal commented on the autonomy granted a trial judge with respect to trial management:

[4] The appellant’s claim that the trial judge’s management of the trial was unfair and favoured the respondent does not bear up under scrutiny. The management of a trial is confided to the trial judge; it is not this court’s function to micromanage a trial in retrospect: R. v. Samaniego, 2020 ONCA 439, 151 O.R. (3d) 449, at paras. 15-17, aff’d 2022 SCC 9. The trial judge was patient with the parties and counsel, allowing the trial to stretch well beyond the estimated schedule. We will not criticize her modest efforts to corral counsel. Those efforts were balanced and reasonable.