R. v. S. (R.D.)

R. v. S. (R.D.)
Collection
Supreme Court Judgments
Date
1997-09-26
Report
[1997] 3 SCR 484
Case number
25063
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Nova Scotia
Subjects
Courts
Notes
SCC Case Information: 25063
Decision Content
R. v. S. (R.D.), [1997] 3 S.C.R. 484
R.D.S. Appellant
v.
Her Majesty The Queen Respondent
and
The Women’s Legal Education and Action Fund,
the National Organization of Immigrant and Visible
Minority Women of Canada, the African Canadian
Legal Clinic, the Afro-Canadian Caucus of Nova Scotia
and the Congress of Black Women of Canada Interveners
Indexed as: R. v. S. (R.D.)
File No.: 25063.
1997: March 10; 1997: September 26.
Present: Lamer C.J. and La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for nova scotia
Courts -- Judges -- Impartiality -- Reasonable apprehension of bias -- Testimony of the only two witnesses (accused and police officer) at odds and that of accused accepted -- Police officer white and accused a black youth -- Oral reasons making reference to police and racism in general context -- Youth Court Judge’s comments not tied to officer appearing before the Court -- Whether reasonable apprehension of bias.
A white police officer arrested a black 15-year-old who had allegedly interfered with the arrest of another youth. The accused was charged with unlawfully assaulting a police officer, unlawfully assaulting a police officer with the intention of preventing an arrest, and unlawfully resisting a police officer in the lawful execution of his duty. The police officer and the accused were the only witnesses and their accounts of the relevant events differed widely. The Youth Court Judge weighed the evidence and determined that the accused should be acquitted. While delivering her oral reasons, the Judge remarked in response to a rhetorical question by the Crown, that police officers had been known to mislead the court in the past, that they had been known to overreact particularly with non-white groups, and that that would indicate a questionable state of mind. She also stated that her comments were not tied to the police officer testifying before the court. The Crown challenged these comments as raising a reasonable apprehension of bias. After the reasons had been given and after an appeal to the Nova Scotia Supreme Court (Trial Division) had been filed by the Crown, the Judge issued supplementary reasons which outlined in greater detail her impressions of the credibility of both witnesses and the context in which her comments were made. The Crown’s appeal was allowed and a new trial was ordered on the basis that the Judge’s remarks gave rise to a reasonable apprehension of bias. This judgment was upheld by a majority of the Nova Scotia Court of Appeal. At issue here is whether the Judge’s comments in her reasons gave rise to a reasonable apprehension of bias.
Held (Lamer C.J. and Sopinka and Major JJ. dissenting): The appeal should be allowed.
(1) Consideration of Supplementary Reasons
Per curiam: The supplementary reasons issued by the Youth Court Judge after the appeal had been filed could not be taken into account in assessing whether her reasons gave rise to a reasonable apprehension of bias.
(2) Reasonable Apprehension of Bias
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The courts should be held to the highest standards of impartiality. Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. The trial will be rendered unfair if the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer. Judges must be particularly sensitive to the need not only to be fair but also to appear to all reasonable observers to be fair to all Canadians of every race, religion, nationality and ethnic origin.
If actual or apprehended bias arises from a judge’s words or conduct, then the judge has exceeded his or her jurisdiction. This excess of jurisdiction can be remedied by an application to the presiding judge for disqualification if the proceedings are still underway, or by appellate review of the judge’s decision. A reasonable apprehension of bias, if it arises, colours the entire trial proceedings and cannot be cured by the correctness of the subsequent decision. The mere fact that the judge appears to make proper findings of credibility on certain issues or comes to the correct result cannot alleviate the effects of a reasonable apprehension of bias arising from the judge’s other words or conduct. However, if the judge’s words or conduct, viewed in context, do not give rise to a reasonable apprehension of bias, the findings of the judge will not be tainted, no matter how troubling the impugned words or actions may be.
The basic interests of justice require that the appellate courts, notwithstanding their deferential standard of review in examining factual determinations made by lower courts, including findings of credibility, retain some scope to review that determination given the serious and sensitive issues raised by an allegation of bias.
Impartiality can be described as a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias denotes a state of mind that is in some way predisposed to a particular result or that is closed with regard to particular issues. Whether a decision-maker is impartial depends on whether the impugned conduct gives rise to a reasonable apprehension of bias. Actual bias need not be established because it is usually impossible to determine whether the decision-maker approached the matter with a truly biased state of mind.
The apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. The test is what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. This test contains a two-fold objective element: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold. The reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community. The jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence. The test applies equally to all judges, regardless of their background, gender, race, ethnic origin, or any other characteristic.
The requirement for neutrality does not require judges to discount their life experiences. Whether the use of references to social context is appropriate in the circumstances and whether a reasonable apprehension of bias arises from particular statements depends on the facts. A very significant difference exists between cases in which social context is used to ensure that the law evolves in keeping with changes in social reality and cases, such as this one, where social context is apparently being used to assist in determining an issue of credibility.
Consideration of whether the existence of anti-black racism in society is a proper subject for judicial notice would be inappropriate here because an intervener and not the appellant put forward the argument with respect to judicial notice.
The individualistic nature of a determination of credibility and its dependence on intangibles such as demeanour and the manner of testifying requires the judge, as trier of fact, to be particularly careful and to appear to be neutral. When making findings of credibility a judge should avoid making any comment that might suggest that the determination of credibility is based on generalizations or stereotypes rather than on the specific demonstrations of truthfulness or untrustworthiness that have come from the particular witness during the trial. At the commencement of their testimony all witnesses should be treated equally without regard to their race, religion, nationality, gender, occupation or other characteristics. It is only after an individual witness has been tested and assessed that findings of credibility can be made.
Situations where there is no evidence linking the generalization to the particular witness might leave the judge open to allegations of bias on the basis that the credibility of the individual witness was prejudged according to stereotypical generalizations. Although the particular generalization might be well-founded, reasonable and informed people may perceive that the judge has used this information as a basis for assessing credibility instead of making a genuine evaluation of the evidence of the particular witness’ credibility.
That judges should avoid making comments based on generalizations when assessing the credibility does not lead automatically to a conclusion of reasonable apprehension of bias. In some limited circumstances, the comments may be appropriate.
The argument that the trial was rendered unfair for failure to comply with “natural justice” could not be accepted. Neither the police officer nor the Crown was on trial.
Per La Forest, L’Heureux-Dubé, Gonthier and McLachlin JJ.: Judges, while they can never be neutral in the sense of being purely objective, must strive for impartiality. Their differing experiences appropriately assist in their decision-making process so long as those experiences are relevant, are not based on inappropriate stereotypes, and do not prevent a fair and just determination based on the facts in evidence.
The apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. The reasonable person must know and understand the judicial process, the nature of judging and the community in which the alleged crime occurred. He or she demands that judges achieve impartiality and will be properly influenced in their deliberations by their individual perspectives. Finally, the reasonable person expects judges to undertake an open-minded, carefully considered and dispassionately deliberate investigation of the complicated reality of each case before them.
Judicial inquiry into context provides the requisite background for the interpretation and the application of the law. An understanding of the context or background essential to judging may be gained from testimony from expert witnesses, from academic studies properly placed before the court, and from the judge’s personal understanding and experience of the society in which the judge lives and works. This process of enlargement is a precondition of impartiality. A reasonable person, far from being troubled by this process, would see it as an important aid to judicial impartiality.
The reasonable person approaches the question of whether there exists a reasonable apprehension of bias with a complex and contextualized understanding of the issues in the case. He or she understands the impossibility of judicial neutrality but demands judicial impartiality. This person is cognizant of the racial dynamics in the local community, and, as a member of the Canadian community, is supportive of the principles of equality. Before finding a reasonable apprehension of bias, the reasonable person would require some clear evidence that the judge in question had improperly used his or her perspective in the decision-making process; this flows from the presumption of impartiality of the judiciary. Awareness of the context within which a case occurred would not constitute evidence that the judge was not approaching the case with an open mind fair to all parties; on the contrary, such awareness is consistent with the highest tradition of judicial impartiality.
(3) Application of the Test
Per La Forest, L’Heureux-Dubé, Gonthier and McLachlin JJ.: The oral reasons at issue should be read in their entirety, and the impugned passages should be construed in light of the whole of the trial proceedings and in light of all other portions of the judgment. They indicated that the Youth Court Judge approached the case with an open mind, used her experience and knowledge of the community to achieve an understanding of the reality of the case, and applied the fundamental principle of proof beyond a reasonable doubt. Her comments were based entirely on the case before her, were made after a consideration of the conflicting testimony of the two witnesses and in response to the Crown’s submissions, and were entirely supported by the evidence. In alerting herself to the racial dynamic in the case, she was simply engaging in the process of contextualized judging which was entirely proper and conducive to a fair and just resolution of the case before her. Although the Judge did not make a finding of racism, there was evidence on which such a finding could be made.
The impugned comments were not unfortunate, unnecessary, or close to the line. They reflected an entirely appropriate recognition of the facts in evidence and of the context within which this case arose -- a context known to the judge and to any well-informed member of the community.
Per Cory and Iacobucci JJ.: The Youth Court Judge conducted an acceptable review of all the evidence before making the impugned comments.
The generalized remarks about a history of racial tension between police officers and visible minorities were not linked by the evidence to the actions of the police officer here. They were worrisome and came very close to the line. Yet, however troubling when read individually, they were not made in isolation and must all be read in the context of the whole proceeding, with an awareness of all the circumstances that a reasonable observer would be deemed to know. A reasonable, informed person, aware of all the circumstances, would not conclude that they gave rise to a reasonable apprehension of bias or that they tainted her earlier findings of credibility. The high standard for a finding of reasonable apprehension of bias was not met.
Per Lamer C.J. and Sopinka and Major JJ. (dissenting): A fair trial is one that is based on the law and its outcome determined by the evidence, free of bias, real or apprehended. Evidence showing propensity has been repeatedly rejected. Trial judges must base their findings on the evidence before them. Notwithstanding the opportunity to do so, no evidence was introduced showing that this police officer was racist and that racism motivated his actions or that he lied.
The Youth Court Judge’s statements were not simply a review of the evidence and her reasons for judgment in which she was relying on her life experience. Even though a judge’s life experience is an important ingredient in the ability to understanding human behaviour, to weighing the evidence and to determining credibility, it is not a substitute for evidence. No evidence supported the conclusions that the Judge reached. Her comments fell into stereotyping the police officer. Judges, as arbiters of truth, cannot judge credibility based on irrelevant witness characteristics. All witnesses must be placed on equal footing before the court.
What the Judge actually intended by the impugned statements is irrelevant conjecture. Given the concern for both the fairness and the appearance of fairness of the trial, the absence of evidence to support the judgment is an irreparable defect.
Cases Cited
By Cory J.
Applied: Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; considered: R. v. Parks (1993), 15 O.R. (3d) 324, leave to appeal denied, [1994] 1 S.C.R. x; Pirbhai Estate v. Pirbhai, [1987] B.C.J. No. 2685 (QL), leave to appeal denied, [1988] 1 S.C.R. xii; Foto v. Jones (1974), 45 D.L.R. (3d) 43; referred to: R. v. Wald (1989), 47 C.C.C. (3d) 315; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; R. v. Curragh Inc., [1997] 1 S.C.R. 537; R. v. Gushman, [1994] O.J. No. 813 (QL); Blanchette v. C.I.S. Ltd., [1973] S.C.R. 833; R. v. W. (R.), [1992] 2 S.C.R. 122; Huerto v. College of Physicians and Surgeons (1996), 133 D.L.R. (4th) 100; Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Généreux, [1992] 1 S.C.R. 259; Liteky v. U.S., 114 S.Ct. 1147 (1994); R. v. Bertram, [1989] O.J. No. 2123 (QL); R. v. Stark, [1994] O.J. No. 406 (QL); The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256; R. v. Elrick, [1983] O.J. No. 515 (QL); R. v. Lin, [1995] B.C.J. No. 982 (QL); R. v. Camborne Justices, Ex parte Pearce, [1954] 2 All E.R. 850; Metropolitan Properties Co. v. Lannon, [1969] 1 Q.B. 577; R. v. Gough, [1993] 2 W.L.R. 883; R. v. Smith & Whiteway Fisheries Ltd. (1994), 133 N.S.R. (2d) 50; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Wilson (1996), 29 O.R. (3d) 97; R. v . Glasgow (1996), 93 O.A.C. 67; White v. The King, [1947] S.C.R. 268; Brouillard v. The Queen, [1985] 1 S.C.R. 39; Inquiry pursuant to s. 13(2) of Territorial Court Act, Re, [1990] N.W.T.R. 337; R. v. Teskey (1995), 167 A.R. 122.
By L’Heureux-Dubé and McLachlin JJ.
Applied: Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; referred to: Valente v. The Queen, [1985] 2 S.C.R. 673 ; R. v. Lippé, [1991] 2 S.C.R. 114; Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267; United States v. Morgan, 313 U.S. 409 (1941); R. v. Smith & Whiteway Fisheries Ltd. (1994), 133 N.S.R. (2d) 50; Blanchette v. C.I.S. Ltd., [1973] S.C.R. 833; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Parks (1993), 15 O.R. (3d) 324; Moge v. Moge, [1992] 3 S.C.R. 813; R. v. Smith (1991), 109 N.S.R. (2d) 394; Nova Scotia (Minister of Community Services) v. S.M.S. (1992), 110 N.S.R. (2d) 91; R. v. Burns, [1994] 1 S.C.R. 656.
By Major J. (dissenting)
Metropolitan Properties Co. v. Lannon, [1969] 1 Q.B. 577; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256.
Statutes and Regulations Cited
Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 18.
Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 5.
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d), 15 , 27 .
Criminal Law Amendment Act, 1975, S.C. 1974-75-76, c. 93, s. 8.
Authors Cited
Blackstone, Sir William. Commentaries on the Laws of England, Book III. Oxford: Clarendon Press, 1778.
Canadian Judicial Council. Commentaries on Judicial Conduct. Cowansville, Que.: Yvon Blais, 1991.
Cardozo, Benjamin N. The Nature of the Judicial Process. New Haven: Yale University Press, 1921.
Devlin, Richard F. “We Can’t Go On Together with Suspicious Minds: Judicial Bias and Racialized Perspective in R. v. R.D.S.” (1995), 18 Dalhousie L.J. 408.
Nedelsky, Jennifer. “Embodied Diversity and the Challenges to Law” (1997), 42 McGill L.J. 91.
Nova Scotia. Royal Commission on the Donald Marshall, Jr., Prosecution. Royal Commission on the Donald Marshall Jr. Prosecution. Halifax: The Commission, 1989.
Omatsu, Maryka. "The Fiction of Judicial Impartiality" (1997), 9 C.J.W.L. 1.
Paciocco, David M., and Lee Stuesser. The Law of Evidence. Concord, Ont.: Irwin Law, 1996.
APPEAL from a judgment of the Nova Scotia Court of Appeal (1995), 145 N.S.R. (2d) 284, 418 A.P.R. 284, 102 C.C.C. (3d) 233, 45 C.R. (4th) 361, dismissing an appeal from a judgment of the Nova Scotia Supreme Court (Trial Division), [1995] N.S.J. No. 184 (QL), allowing an appeal from acquittal by Sparks F.C.J. with oral reasons December 2, 1994, with supplementary written reasons, [1994] N.S.J. No. 629 (QL). Appeal allowed, Lamer C.J. and Sopinka and Major JJ. dissenting.
Burnley A. Jones and Dianne Pothier, for the appellant.
Robert E. Lutes, Q.C., for the respondent.
Yola Grant and Carol Allen, for the interveners the Women’s Legal Education and Action Fund and the National Organization of Immigrant and Visible Minority Women of Canada.
April Burey, for the interveners the African Canadian Legal Clinic, the Afro-Canadian Caucus of Nova Scotia and the Congress of Black Women of Canada.
The reasons of Lamer C.J. and Sopinka and Major JJ. were delivered by
1 Major J. (dissenting) -- I have read the reasons of Justices L’Heureux-Dubé and McLachlin and those of Justice Cory and respectfully disagree with the conclusion they reach.
2 The appellant (accused) R.D.S. was a young person charged with assault on a peace officer. At trial, the Crown’s only evidence came from the police officer allegedly assaulted. The appellant testified as the only witness in his defence. The testimony of the two witnesses differed in material respects. The trial judge gave judgment immediately after closing arguments and acquitted the appellant.
3 This appeal should not be decided on questions of racism but instead on how courts should decide cases. In spite of the submissions of the appellant and interveners on his behalf, the case is primarily about the conduct of the trial. A fair trial is one that is based on the law, the outcome of which is determined by the evidence, free of bias, real or apprehended. Did the trial judge here reach her decision on the evidence presented at the trial or did she rely on something else?
4 In the course of her judgment the trial judge said:
The Crown says, well, why would the officer say that events occurred the way in which he has relayed them to the Court this morning. I am not saying that the Constable has misled the court, although police officers have been known to do that in the past. I am not saying that the officer overreacted, but certainly police officers do overreact, particularly when they are dealing with non-white groups. That to me indicates a state of mind right there that is questionable. I believe that probably the situation in this particular case is the case of a young police officer who overreacted. I do accept the evidence of [R.D.S.] that he was told to shut up or he would be under arrest. It seems to be in keeping with the prevalent attitude of the day.
At any rate, based upon my comments and based upon all the evidence before the court I have no other choice but to acquit. [Emphasis added.]
5 In view of the manner in which this appeal was argued, it is necessary to consider two points. First, we should consider whether the trial judge in her reasons, properly instructed herself on the evidence or was an error of law committed by her. The second, and somewhat intertwined question, is whether her comments above could cause a reasonable observer to apprehend bias. The offending comments in the statement are:
(i)“police officers have been known to [mislead the court] in the past”;
(ii)“police officers do overreact, particularly when they are dealing with non-white groups”;
(iii)“[t]hat to me indicates a state of mind right there that is questionable”;
(iv)“[i]t seems to be in keeping with the prevalent attitude of the day”; and,
(v)“based upon my comments and based upon all the evidence before the court I have no other choice but to acquit.”
6 The trial judge stated that “police officers have been known to [mislead the court] in the past” and that “police officers do overreact, particularly when they are dealing with non-white groups” and went on to say “[t]hat to me indicates a state of mind right there that is questionable.” She in effect was saying, “sometimes police lie and overreact in dealing with non-whites, therefore I have a suspicion that this police officer may have lied and overreacted in dealing with this non-white accused.” This was stereotyping all police officers as liars and racists, and applied this stereotype to the police officer in the present case. The trial judge might be perceived as assigning less weight to the police officer’s evidence because he is testifying in the prosecution of an accused who is of a different race. Whether racism exists in our society is not the issue. The issue is whether there was evidence before the court upon which to base a finding that this particular police officer’s actions were motivated by racism. There was no evidence of this presented at the trial.
7 Our jurisprudence has repeatedly prohibited the introduction of evidence to show propensity. In the present case had the police officer been charged with assault the trial judge could not have reasoned that as police officers have been known to mislead the Court in the past that based on that evidence she rejected this police officers credibility and found him guilty beyond reasonable doubt.
8 In the same vein, statistics show that young male adults under the age of 25 are responsible for more accidents than older drivers. It would be unacceptable for a court to accept evidence of that fact to find a defendant liable in negligence yet that is the consequence of the trial judge’s reasoning in this appeal.
9 It is possible to read the trial judge’s reference to the “prevalent attitude of the day” as meaning her view of the prevalent attitude in society today. If the trial judge used the “prevalent attitude of society” towards non-whites as evidence upon which to draw an inference in this case, she erred, as there were no facts in evidence from which to draw that inference. It would be stereotypical reasoning to conclude that, since society is racist, and, in effect, tells minorities to “shut up,” we should infer that this police officer told this appellant minority youth to “shut up.” This reasoning is flawed.
10 Trial judges have to base their findings on the evidence before them. It was open to the appellant to introduce evidence that this police officer was racist and that racism motivated his actions or that he lied. This was not done. For the trial judge to infer that based on her general view of the police or society is an error of law. For this reason there should be a new trial.
11 In addition to not being based on the evidence, the trial judge’s comments have been challenged as giving rise to a reasonable apprehension of bias. The test for finding a reasonable apprehension of bias has challenged courts in the past. It is interchangeably expressed as a “real danger of bias,” a “real likelihood of bias,” a “reasonable suspicion of bias” and in several other ways. An attempt at a new definition will not change the test. Lord Denning M.R. captured the essence of the inquiry in his judgment in Metropolitan Properties Co. v. Lannon, [1969] 1 Q.B. 577 (C.A.), at p. 599:
[I]n considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand: see Reg. v. Huggins; and Rex v. Sunderland Justices, per Vaughan Williams L.J. Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough: see Reg. v. Camborne Justice, Ex parte Pearce, and Reg. v. Nailsworth Licensing Justices, Ex parte Bird. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: “The judge was biased.”
See also Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256.
12 The appellant and the interveners argued that the trial judge’s statements were simply a review of the evidence and were her reasons for judgment. They said she was relying on her life experience and to deny that is to deny reality. I disagree.
13 The life experience of this trial judge, as with all trial judges, is an important ingredient in the ability to understand human behaviour, to weigh the evidence, and to determine credibility. It helps in making a myriad of decisions arising during the course of most trials. It is of no value, however, in reaching conclusions for which there is no evidence. The fact that on some other occasions police officers have lied or overreacted is irrelevant. Life experience is not a substitute for evidence. There was no evidence before the trial judge to support the conclusions she reached.
14 The trial judge could not decide this case based on what some police officers did in the past without deciding that all police officers are the same. As stated, the appellant was entitled to call evidence of the police officer’s conduct to show that there was in fact evidence to support either his bias or racism. No such evidence was called. The trial judge presumably called upon her life experience to decide the issue. This she was not entitled to do.
15 The bedrock of our jurisprudence is the adversary system. Criminal prosecutions are less adversarial because of the Crown’s duty to present all the evidence fairly. The system depends on each side’s producing facts by way of evidence from which the court decides the issues. Our system, unlike some others, does not permit a judge to become an independent investigator to seek out the facts.
16 Canadian courts have, in recent years, criticized the stereotyping of people into what is said to be predictable behaviour patterns. If a judge in a sexual assault case instructed the jury or him- or herself that because the complainant was a prostitute he or she probably consented, or that prostitutes are likely to lie about such things as sexual assault, that decision would be reversed. Such presumptions have no place in a system of justice that treats all witnesses equally. Our jurisprudence prohibits tying credibility to something as irrelevant as gender, occupation or perceived group predisposition.
17 Similarly, we have eliminated the requirement for corroboration of the complainant’s evidence. The absolute requirement of corroboration for particular sexual offences and the lesser requirement of a warning to the jury about relying on the victim’s uncorroborated testimony have been abolished: see Criminal Law Amendment Act, 1975, S.C. 1974-75-76, c. 93, s. 8, and S.C. 1980-81-82-83, c. 125, s. 5. Also eliminated is the need for corroboration in cases where a prosecution is based on the unsworn evidence of children: see S.C. 1987, c. 24, s. 18. The elimination of corroboration shows the present evolution away from stereotyping various classes of witnesses as inherently unreliable.
18 It can hardly be seen as progress to stereotype police officer witnesses as likely to lie when dealing with non-whites. This would return us to a time in the history of the Canadian justice system that many thought had past. This reasoning, with respect to police officers, is no more legitimate than the stereotyping of women, children or minorities.
19 In my opinion the comments of the trial judge fall into stereotyping the police officer. She said, among other things, that police officers have been known to mislead the courts, and that police officers overreact when dealing with non-white groups. She then held, in her evaluation of this particular police officer’s evidence, that these factors led her to “a state of mind right there that is questionable”. The trial judge erred in law by failing to base her conclusions on evidence.
20 Judges, as arbiters of truth, cannot judge credibility based on irrelevant witness characteristics. All witnesses must be placed on equal footing before the court.
21 The trial judge concluded the impugned part of her reasons with the following: “[a]t any rate, based upon my comments and based upon all the evidence before the court I have no other choice but to acquit.” What did she mean by basing her judgment, in part, upon her own comments? Did she mean based on her stereotyping of police officers? Or, did she mean based on her comments analysing the evidence of the parties? Based on the trial record what is clear is that the trial judge did not reach her conclusion on any facts presented at the trial.
22 It is irrelevant conjecture as to what the trial judge actually intended by these statements. I agree with my colleague Cory J., that there are other plausible explanations of these impugned comments. It may be that all of her remarks were merely intended as a hypothetical response to the Crown’s suggestion that the police officer had no reason to lie, and therefore innocuous. However, we are concerned with both the fairness and the appearance of fairness of the trial, and the absence of evidence to support the judgment is an irreparable defect.
23 I agree with the approach taken by Cory J. with respect to the nature of bias and the test to be used to determine if the words or actions of a judge give rise to apprehension of bias. However, I come to a different conclusion in the application of the test to the words of the trial judge in this case. It follows that I disagree with the approach to reasonable apprehension of bias put forward by Justices L’Heureux-Dubé and McLachlin.
24 The error of law that I attribute to the trial judge’s assessment of the evidence or lack of evidence is sufficiently serious that a new trial is ordered.
25 In the result, I would uphold the disposition of Flinn J.A. in the Court of Appeal (1995), 145 N.S.R. (2d) 284, and dismiss the appeal.
The reasons of La Forest and Gonthier JJ. were delivered by
26. Gonthier J. -- I have had the benefit of the reasons of Justice Cory, the joint reasons of Justices L’Heureux-Dubé and McLachlin and the reasons of Justice Major. I agree with Cory J. and L’Heureux-Dubé and McLachlin JJ. as to the disposition of the appeal and with their exposition of the law on bias and impartiality and the relevance of context. However, I am in agreement with and adopt the joint reasons of L’Heureux-Dubé and McLachlin JJ. in their treatment of social context and the manner in which it may appropriately enter the decision-making process as well as their assessment of the trial judge’s reasons and comments in the present case.
The following are the reasons delivered by
L’Heureux-Dubé and McLachlin JJ. --
I. Introduction
27 We have read the reasons of our colleague, Justice Cory, and while we agree that this appeal must be allowed, we differ substantially from him in how we reach that outcome. As a result, we find it necessary to write brief concurring reasons.
28 We endorse Cory J.’s comments on judging in a multicultural society, the importance of perspective and social context in judicial decision-making, and the presumption of judicial integrity. However, we approach the test for reasonable apprehension of bias and its application to the case at bar somewhat differently fromour colleague.
29 In our view, the test for reasonable apprehension of bias established in the jurisprudence is reflective of the reality that while judges can never be neutral, in the sense of purely objective, they can and must strive for impartiality. It therefore recognizes as inevitable and appropriate that the differing experiences of judges assist them in their decision-making process and will be reflected in their judgments, so long as those experiences are relevant to the cases, are not based on inappropriate stereotypes, and do not prevent a fair and just determination of the cases based on the facts in evidence.
30 We find that on the basis of these principles, there is no reasonable apprehension of bias in the case at bar. Like Cory J. we would, therefore, overturn the findings by the Nova Scotia Supreme Court (Trial Division) and the majority of the Nova Scotia Court of Appeal that a reasonable apprehension of bias arises in this case, and restore the acquittal of R.D.S. This said, we disagree with Cory J.’s position that the comments of Judge Sparks were unfortunate, unnecessary, or close to the line. Rather, we find them to reflect an entirely appropriate recognition of the facts in evidence in this case and of the context within which this case arose -- a context known to Judge Sparks and to any well-informed member of the community.
II. The Test for Reasonable Apprehension of Bias
31 The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369. Though he wrote dissenting reasons, de Grandpré J.’s articulation of the test for bias was adopted by the majority of the Court, and has been consistently endorsed by this Court in the intervening two decades: see, for example, Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Lippé, [1991] 2 S.C.R. 114; Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267. De Grandpré J. stated, at pp. 394-95:
. . . the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information.... [T]hat test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
The grounds for this apprehension must, however, be substantial and I ... refus[e] to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.
32 As Cory J. notes at para. 92, the scope and stringency of the duty of fairness articulated by de Grandpré depends largely on the role and function of the tribunal in question. Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges “are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances”: United States v. Morgan, 313 U.S. 409 (1941), at p. 421. The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentar