Tuesday, June 12, 2007

Bias and sensitivity

It seems that a reasonable apprehension that the judge is biased will be sufficient grounds for a rehearing, regardless of whether the judge’s decision was correct. This is a reflection of the absolute nature of the accused’s right to a fair hearing: a conviction resulting from an unfair hearing will be quashed. There are many examples of cases where this has occurred, without the appellate court investigating the merits of the conviction, as the index to these blogs reveals. I discussed the High Court of Australia’s decision in Antoun v R on 8 February 2006, and suggested that

“We might, by now, anticipate that a case of apprehended bias would be a substantial miscarriage of justice, given the fundamental importance of the appearance of justice, but one must acknowledge that there is, at least, an argument that whereas actual bias would be a substantial miscarriage of justice, apprehended bias falls short of that in cases where there was no loss of a real chance of acquittal.”

As yet there is no example of a court making this, at least theoretically possible, distinction between apprehended and actual bias. A recent example of apprehended bias is R v Teskey [2007] SCC (7 June 2007). Here the Supreme Court of Canada was concerned with a case where a judge, sitting alone, had announced his verdict some four months after hearing the evidence, without giving reasons, and 11 months passed before the written reasons were given, by which time the defendant had appealed against his conviction.

The decision of the majority was delivered by Charron J. Apparent bias and actual bias were seen as equally objectionable:

“21 As reiterated in R v S. (R.D.) [1997] SCC 324, [1997] 3 SCR 484, fairness and impartiality must not only be subjectively present but must also be objectively demonstrated to the informed and reasonable observer. Even though there is a presumption that judges will carry out the duties they have sworn to uphold, the presumption can be displaced. The onus is therefore on the appellant to present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the reasons constitute an after-the-fact justification of the verdict rather than an articulation of the reasoning that led to it.”

In Teskey, the facts were relatively complex and the case against the defendant was circumstantial. Delay in giving reasons would not, of itself, have been sufficient to sustain a claim of apparent bias, but other matters combined to support a reasonable apprehension of bias. These were (para 23):
  •  the trial judge’s obvious difficulty in arriving at a verdict in the months following the completion of the evidence;
  •  the absolutely bare declaration of guilt without any indication of the underlying reasoning;
  •  the trial judge’s expressed willingness to reconsider the verdicts immediately after their announcement;
  •  the nature of the evidence that called for a detailed consideration and analysis before any verdict could be reached;
  •  the failure of the trial judge to respond to repeated requests from counsel to give reasons;
  •  the contents of the reasons referring to events long after the announcement of the verdict suggesting that they were crafted post-decision;
  •  the inordinate delay in delivering the reasons coupled with the absence of any indication that his reasons were ready at any time during the 11 months that followed or that the trial judge had purposely deferred their issuance pending disposition of the dangerous offender application.

In this appeal the Court of Appeal had had regard to the judge’s written reasons in upholding the conviction, and the Supreme Court held that the Court of Appeal should not have done that. Instead of remitting the case to the Court of Appeal for it to consider the question of the conviction on the basis of the record of the hearing, a retrial was ordered. Although the only indication of bias appears to have arisen from the post-hearing events, the judge-alone procedure carries with it a right to have reasons given for the decision, and those become part of the material proper for consideration on appeal. This was a case where it would seem to a reasonable person that the reasons were a justification for the verdict, rather than the verdict being a result of the reasons, and this approach would naturally have obscured any errors of reasoning that had led to the verdict. The appellant was therefore deprived of the opportunity to challenge the reasons for the verdict.

Abella J delivered the dissenting judgment of herself, Bastarache and Deschamps JJ. This placed emphasis on the presumption of judicial integrity and the high threshold required to displace that presumption. There was nothing in the case, in the opinion of the minority, to displace that presumption.

Is talk of presumptions and thresholds really appropriate in this context? Why should there be obstacles to exposing bias? Certainly, cogent evidence of bias should be required, but it does not follow that a high standard of proof of bias should be reached before the appellate court will look at the issue. Some people would see the conferment, by the judges at common law, of this sort of immunity on their judicial colleagues as rather sanctimonious; a bias against bias.

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