The criteria for establishing perceived judicial bias have been summarised and applied in R v Edwards, 2024 SCC 15.
This case is about whether the composition of courts martial in Canada infringes the s 11(d) Charter right to an independent and impartial tribunal.
But of wider interest is the description of the attributes of the informed and reasonable person. The issue is whether such a person would perceive the tribunal as independent.
At [84]-[85] it is observed that there is a strong presumption of judicial impartiality. The reasonable and informed person, according to the established jurisprudence,
has knowledge of all the relevant circumstances
views the matter realistically and practically
is apprised of and takes into account all relevant circumstances
is well informed
is alive to the relevant contextual considerations
is right minded
thinks the matter through
applies themself to the question and obtains the relevant information
has a degree of mature and informed judgement
Even so, there can be judicial differences over what conclusion such a reasonable and informed person would reach. This case produced a dissent from Karakatsanis J. The difficulties can readily be appreciated from her judgment, particularly at [152]-[153], [161], [168], [185]-[193], and [194]-[208].
