“Justice Katarynych in Ontario (Director, Family Responsibility Office) v. Samra, 2008 ONCJ 465, 59 R.F.L. (6th) 219 provides an excellent summary of the law of recusal on the basis of judicial bias or lack of impartiality. The relevant portion of his decision is reproduced below:
18 An allegation of judicial bias is one that counsel should make “only after careful and anxious reflection.” A finding of real or perceived bias is serious business. It calls into question an element of judicial integrity — not simply the personal integrity of the judge, but the integrity of the entire administration of justice.
19 When considering the issue of bias in regard to a judge, there is a starting presumption of impartiality; specifically, that judges in their exercise of any judicial duty, will be faithful to that part of their oath of office that requires them to act impartially, which in its essence is a state of mind in which the judge is disinterested in the outcome and is open to persuasion by the evidence and submissions.
20 Bias, on the other hand, denotes a state of mind or attitude that is in some way predisposed to a particular result or that is closed to a particular issue.
21 The criteria for determining when an apprehension of bias arises are those first enunciated in Committee for Justice & Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369:
…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. Would he think that it is more likely than not that [the judge], whether consciously or unconsciously, would not decide fairly?
22 It is a test that has been consistently followed in Canada for more than 20 years.
23 There is a two-fold objective element to this test:
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- the person considering the alleged bias must be reasonable; and
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- the apprehension of the bias itself must also be reasonable in the circumstances of the case.
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24 Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. The grounds advanced for this apprehension must be substantial. The test is not related to the “very sensitive or scrupulous conscience”.
25 The onus of demonstrating real or perceived bias lies with the person who is alleging its existence.
26 The belief of the applicant and his counsel that the applicant would not receive a fair hearing before a particular judge is not the standard against which apprehension of bias is measured. The apprehension of bias must be considered objectively through the eyes of a fully informed, reasonable person who is reacting reasonably in the circumstances.
27 If the applicant is to succeed, the evidence in the motion must rise above the imaginary or conjectural sentiments of the applicant and demonstrate real likelihood or probability of bias.
28 The applicant’s task is to show wrongful or inappropriate declarations showing a state of mind that sways judgment — a predisposition that is so great that the judge is not open to persuasion upon presentation of new evidence or new arguments.
29 The presumption of judicial impartiality will only be displaced with cogent evidence that something a judge has done gives rise to actual bias or a reasonable apprehension of bias — evidence that would cause a reasonable person who understands the contextual issues and the law governing the case to believe that the particular judge would not entertain the various points of view with an open mind.
30 The specific complaints raised by the applicant in support of his recusal motion are to be construed in light of the entire proceedings. Regard must be had to the cumulative effect of all of the relevant factors. See R. v. S. (R.D.), supra. See also R. v. Giroux, supra.
31 Judicial officers should not accede too readily to allegations of actual or appearance of bias. Although it is important that justice be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to the applicant’s suggestions, encourage parties to believe that, by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”