1. The Role, Independence and Impartiality of Judges

Judges are evidently central to the judicial process, both as umpires in the adversarial process, in some cases asof triers of fact, and often as those who pass sentences. It is therefore cardinal, as recognized both constitutionally and internationally, that judges be both independent and impartial. Independence refers to judges' independence from other bodies; impartiality to the absence of bias. In fact, the right to a trial free from bias is protected by Charter Sections 7 and 11. By contrast, authoritarian systems have long characterized themselves by a mix of dependency of judges on the Executive or the legislature, and occasionally by the partiality of judges. The two are connected, and a judge may both lack independence and impartiality. For an example of how lack of independence and impartiality can be pushed to extremes, the Nazi criminal justice system is instructive. Although in the liberal tradition one typically thinks of bias as being directed against defendants, it could also be directed against victims, witnesses, or the Crown. This is one case, however, where we move beyond the traditional focus on the defendant: certain perceptions of bias against a variety of participants in the trial may destroy faith in judicial impartiality.

Whilst lack of indepencence may occasionally be relatively easier to prove, it is of course difficult to ascertain what is going through judges' minds in terms of bias. By the same token, judges do not simply apply rules mechanically. They work with their mind in rendering justice, and like any other member of society, have private opinions as to what justice should be. In fact, some measure of individual emotion and compassion on the judge’s part may in fact be necessary for the proper functioning of our legal system. However there exists a fine line which must not be crossed. A judge’s passionate commitment to a cause pleaded before her may turn into bias when manifested externally. Doing so poses an important problem to the functioning of justice more generally. A judge must appear to be impartial regardless of the emotional responses felt during trial in order to preserve faith in and respect for our judiciary organs. A strong element of reserve is therefore called for on the part of judges in order to ensure that citizens consider the judiciary as a reliable dispute resolution organ. Were citizens to loose trust in the judiciary’s ability to remain impartial, respect for justice would crumble and so would some of the bonds uniting citizens into a principled liberal democracy.

What it means for a judge to be impartial is expounded upon in detail by RDS v. The Queen, the seminal decision on this question in Canadian law. The principal parameters of the law operate as follows. Firstly, the case law rightly presumes that judges will duly carry out their oath of office, commanding the observance of an unbiased and diligent behaviour. RDS v. The Queen thus reminds one that a finding of bias is a difficult finding, one made against a presumption and therefore surpassing mere suspicion. There must be a marked deviation from the habitual reserve commanded by the judicial office. Judges may go as far as to express a measure of sympathy, and even acknowledge based on the facts presented in evidence that certain social injustices do have a bearing on the decision to be rendered. It was for instance recognized that a judge was allowed to qualify Pakistan as a “corrupt society” in judgment as the very of corruption in Pakistan had been alleged by a party to prove a point in issue for the case. Similarly, in the RDS decision, the judge had made several comments on the issue of racism towards indigenous black communities in Nova Scotia police work – all of which, in context, were made in response to submissions made in connection with the resolution of the case. A judge may also pass one comment or adopt slightly unsympathetic nonverbal behaviour without rebuking the presumption.

The criterion developed by the case law to assess judicial bias is that of a reasonable deviation, determined by a reasonable person informed of the facts of the case. “Informed by the facts of the case” demands a holistic and contextualized approach. All comments or behaviour potentially demonstrative of bias must be taken into consideration as a whole. Each must be placed in context in order to evaluate whether such comments constituted a reasonable response in light of the submissions made at bar. If racism or other such sensitive issues were discussed by the parties, and had a rational link with the issue of the case, more tolerance is called for. If the comments were made spontaneously, and without close connection to the evidence and rights invoked by the parties, less tolerance is called for. The level of spontaneity and disconnectedness from the facts and rights alleged at bar will thus be central.

Bias may also manifest itself in the judges’ interference with the management of the case. Curragh provides an example. Moving away from the expression of comments on racism and police work in RDS, the judge in this case directly elected to interfere with the proceedings in a number of ways. For private reasons the judge expressed to the crown office over the phone his desire that the crown attorney in the case before him be removed and that, in the negative, he would take steps “to secure that end.” The judge insisted that the crown disclose certain documents which it had a good reason to withhold and for this reason ultimately went as far as to order a stay of the proceedings. On appeal the court mentioned that his attempt at interfering with the crown’s work in and of itself constitutes a reasonable apprehension of bias.

More generally, one could argue that in an adversarial system it is required of judges that they avoid taking sides and thus potentially disrupt the adversarial nature of the proceedings. In Gunning the judge interfered this time with the role of jury. Where the judge normally instructs the jury as to the state of the law and passively lets them deliberate on their connection to the facts, the judge in this case directed the jury to a given conclusion. Conclusions may be formulated by the judge to the jury only where a defense alleged has no “air of reality.” As a corollary of the trial judge’s duty to instruct the jury on the law, this principle demands that a judge should withdraw a defence from the consideration of the jury when there is no evidence upon which a properly instructed jury acting reasonably could find in the accused’s favour. In this case the judge overstepped this rule and directed the jury to a given conclusion where the minimal threshold had been met – enough had been presented for a jury to debate. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.

A demonstration of bias on the part of a judge leads to a judgement being rendered “ultra vires” – in excess of jurisdiction. This is because the judgement is proven to have been rendered on a basis other than the facts and rights alleged at bar. Their filtering into the judgement was corrupted by the judge’s impartiality. In this case a mere appeal cannot suffice, as the judge’s bias may have tainted the entirety of the facts introduced into judgement. Instead of having the judgement corrected on appeal, parties typically appeal the case in order to have a new trial ordered in first instance. In a blatant case of bias parties may apply for the judge to be disqualified directly, before the judgement may be rendered. This procedure is however difficult and seldom successful.

It is also worth noting that judges will be scrutinized more generally for their behaviour in Court. In the context of overcoming centuries of prejudice in relation to sexual assault, it has become particularly important that judges (notably male judges) not resort to language that might seem to contradict the law on sexual assault or exhibit sexist prejudice. The case of Judge Robin Camp is an interesting example. When they are public persona, as Supreme Court judges are, even comments made outside the court room may have a significant impact on the perception of their impartiality.

Further sources:

• • Abrahamson, Shirley S. “Judging in the Quiet of the Storm” (1992) 24 St Mary’s LJ 965

  • Maroney, Terry A. “The Persistent Cultural Script of Judicial Dispassion” (2011) 99:2 California Law Review 629.

  • Feigenson, Neal R. “Sympathy and Legal Judgment: A Psychological Anaylsis” (1997) 65 Tenn L Rev 1.

  • Council of Europe, Challenges for judicial independence and impartiality in the member states ofthe Council of Europe, 24 March 2016.

  • Bryden, Philip & Jula Hughes. “The Tip of the Iceberg: A Survey of the Philosophy and Practice of Canadian Provincial and Territorial Judges concerning Judicial Disqualification” (2010) 48 Alta L Rev 569.

  • Rachlinski, Jeffrey J., Sheri Lynn Johnson, Andrew J. Wistrich, and Chris Guthrie. “Does Unconscious Racial Bias Affect Trial Judges?” Notre Dame Law Review 84, no. 3 (2009): 9–11.

  • Office of the High Commissioner for Human Rights, Chapter 4. INDEPENDENCE AND IMPARTIALITY OF JUDGES, PROSECUTORSAND LAWYERS, pp. 116-138.

  • “Tax judge issues rare ruling in own defence”, online: Financial Post

• Dugard, John. “Should Judges Resign - A Reply to Professor Wacks” (1984) 101 S African LJ 286.

  • Backhouse, Constance B. “Gender and Race in the Construction of’Legal Professionalism’: Historical Perspectives,” 2003.

  • Boyle, Christine, Brenna Bhandar, Constance Backhouse, and Marilyn MacCrimmon. “R. v. RDS: An Editor’s Forum.” Can. J. Women & L. 10 (1998): 159.

  • Cairns Way, Rosemary. “Deliberate Disregard: Judicial Appointments under the Harper Government,” 2014.

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  • Grossman, Nienke. “Sex Representation on the Bench and the Legitimacy of International Criminal Courts.” International Criminal Law Review 11, no. 3 (July 1, 2011): 643–53. https://doi.org/10.1163/157181211X576474.

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  • Mahoney, Kathleen. “Judicial Bias: The Ongoing Challenge Symposium.” Journal of Dispute Resolution 2015 (2015): 43–70.

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