Supreme Court of Canada finds reasonable apprehension of bias in Trial Judge in minority laguage rights case.

"The Yukon Francophone School Board is the first and only school board in the Yukon. It has responsibility for one school, École Émilie‑Tremblay, a French‑language school founded in 1984. In 2009, the Board sued the Yukon government for what it claimed were deficiencies in the provision of minority language education. The trial judge ruled in the Board’s favour on most issues.

The Court of Appeal concluded that there was a reasonable apprehension of bias on the part of the trial judge based on a number of incidents during the trial as well as the trial judge’s involvement as a governor of a philanthropic francophone community organization in Alberta. Accordingly, it ordered a new trial except on three issues, only two of which were appealed to this Court: the trial judge’s conclusion that, under s. 23 of the Charter , the Board had the unilateral right to set admission criteria so as to include students who are not covered by s. 23 ; and the trial judge’s decision that the Yukon is required to communicate with the Board in French."

In Yukon Francophone School Board, Education Area #23 v.Yukon, the S.C.C. held (7:0) that the appeal from the Court of Appeal’s conclusion that there was a reasonable apprehension of bias requiring a new trial is dismissed, but the Board’s claims pursuant to the Languages Act should be joined with the other issues remitted by the Court of Appeal for determination at a new trial.

From the decision:

Justice Abella wrote as follows (at paras. 20-23, 25-26, 55-56, 59, 61, 74-76):

"The test for a reasonable apprehension of bias is undisputed and was first articulated by this Court as follows:

. . . 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. [Citation omitted; Committee for Justice and Liberty v. National Energy Board, 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting)]

This test — what would a reasonable, informed person think — has consistently been endorsed and clarified by this Court: e.g., Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, at para. 60;C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at para. 199; Miglin v. Miglin, [2003] 1 S.C.R. 303, at para. 26; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 46; R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 11 per Major J., at para. 31 per L’Heureux-Dubé and McLachlin JJ., at para. 111 per Cory J.; Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267, at para. 45; R. v. Lippé, [1991] 2 S.C.R. 114, at p. 143; Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 684.

The objective of the test is to ensure not only the reality, but the appearance of a fair adjudicative process. The issue of bias is thus inextricably linked to the need for impartiality. In Valente, Le Dain J. connected the dots from an absence of bias to impartiality, concluding “[i]mpartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case” and “connotes absence of bias, actual or perceived”: p. 685. Impartiality and the absence of the bias have developed as both legal and ethical requirements. Judges are required — and expected — to approach every case with impartiality and an open mind: see S. (R.D.), at para. 49, per L’Heureux-Dubé and McLachlin JJ.

In Wewaykum, this Court confirmed the requirement of impartial adjudication for maintaining public confidence in the ability of a judge to be genuinely open:

  • . . . public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.
  • The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind. [Emphasis added; paras. 57-58.]

Because there is a strong presumption of judicial impartiality that is not easily displaced (Cojocaru v. British Columbia Women’s Hospital and Health Centre, [2013] 2 S.C.R. 357, at para. 22), the test for a reasonable apprehension of bias requires a “real likelihood or probability of bias” and that a judge’s individual comments during a trial not be seen in isolation: see Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, at para. 2; S. (R.D.), at para. 134, per Cory J.

The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias, as a result, is inherently contextual and fact-specific, and there is a correspondingly high burden of proving the claim on the party alleging bias: see Wewaykum, at para. 77; S. (R.D.), at para. 114, per Cory J. As Cory J. observed in S. (R.D.):

. . . allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overriding principle that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather it must be considered in the context of the circumstances, and in light of the whole proceeding. [Emphasis added; para. 141.]

While the threshold for a reasonable apprehension of bias is high, in my respectful view, the “fine balance” was inappropriately tipped in this case. The trial judge’s actions in relation to the confidentiality of student files, the request to have Mr. DeBruyn testify by affidavit, the disparaging remarks, and the unusual costs award and procedure, taken together and viewed in their context, would lead a reasonable and informed person to see the trial judge’s conduct as giving rise to a reasonable apprehension of bias.

That said, I respectfully part company with the Court of Appeal when it concluded that the trial judge’s current service as a governor of the Fondation franco-albertaine substantially contributed to a reasonable apprehension of bias. The trial judge had been appointed to the Alberta Court of Queen’s Bench in 2002 and the Supreme Court of Yukon in 2005. Before being appointed to the bench, the trial judge played a key role in the creation of École du Sommet in St. Paul, Alberta and served as a school trustee on the Conseil scolaire Centre-Est de l’Alberta from 1994 until 1998. From 1999 to 2001, he served as a member of the executive of the Association canadienne-française de l’Alberta, an organization that lobbies on behalf of and promotes the francophone community in Alberta. He was a governor of the Fondation franco-albertaine while he was a judge. Its “mission” is to [translation] “[e]stablish charitable activities to enhance the vitality of Alberta’s francophone community”, and its “vision” is for “[a] francophone community in Alberta that is autonomous, dynamic and valued”. It is this latter affiliation that triggered the Court of Appeal’s admonition.

While I fully acknowledge the importance of judges avoiding affiliations with certain organizations, such as advocacy or political groups, judges should not be required to immunize themselves from participation in community service where there is little likelihood of potential conflicts of interest.

Membership in an association affiliated with the interests of a particular race, nationality, religion, or language is not, without more, a basis for concluding that a perception of bias can reasonably be said to arise. We expect a degree of mature judgment on the part of an informed public which recognizes that not everything a judge does or joins predetermines how he or she will judge a case. Canada has devoted a great deal of effort to creating a more diverse bench. That very diversity should not operate as a presumption that a judge’s identity closes the judicial mind.

… the Yukon has not delegated the function of setting admission criteria for children of non-rights holders to the Board. In the absence of any such delegation, there is no authority for the Board to unilaterally set admission criteria which are different from what is set out in the Regulation. This does not preclude the Board from claiming that the Yukon has insufficiently ensured compliance with s. 23 , and nothing stops the Board from arguing that the Yukon’s approach to admissions prevents the realization of s. 23 ’s purpose: see Mahe, at pp. 362-65. But that is a different issue from whether the Board has, in the absence of delegation from the Yukon, the unilateral right to decide to admit children other than those who are covered by s. 23 or the Regulation.

This bring us to the second issue decided by the Court of Appeal, namely, whether the Yukon is required, by virtue of s. 6(1) of the Languages Act, to communicate with and provide services to the Board and its employees in French. Section 6(1) provides:

  • 6(1) Any member of the public in the Yukon has the right to communicate with, and to receive available services from, any head or central office of an institution of the Legislative Assembly or of the Government of the Yukon in English or French, and has the same right with respect to any other office of any such institution if
  • (a) there is a significant demand for communications with and services from that office in both English and French; or
  • (b) due to the nature of the office, it is reasonable that communications with and services from that office be in both English and French.

The Court of Appeal decided that this case was not a suitable vehicle for the determination of rights under s. 6 of the Languages Act. In my respectful view, it is unclear to me why this should be so. The Board’s Languages Act claims raise significant factual issues that may well lead to a finding that parts of the claims were justified. Whether a particular communication is covered by s. 6(1) may depend both on the nature of the communication and the capacity in which it is communicated. As the Court of Appeal observed, it is unlikely that the question has a simple answer given that the Board and its personnel engage in various types of communications with the government. This argues, it seems to me, for a determination at the new trial with the benefit of a full evidentiary record, not for a dismissal of the claims."

Note: This is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.