Bastarache J.
Bastarache J. — I have considered the notice of motion of the applicant as if it was addressed to me in the form of an application for recusal on the basis of apprehension of bias. I deny the motion.
The test for apprehension of bias takes into account the presumption of impartiality. A real likelihood or probability of bias must be demonstrated (R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paras. 112 and 113). I find nothing in the material submitted by the applicant that would cause a reasonable person who understands the complex and contextual issues to believe that I would not entertain the various points of view with an open mind.
Given the nature of the aforesaid material, it is fitting to quote Cory J. in S. (R.D.), at para. 119, on the relevance of past experience to the question of apprehension of bias:
The requirement for neutrality does not require judges to discount the very life experiences that may so well qualify them to preside over disputes. It has been observed that the duty to be impartial
does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge. Rather, the wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave.
True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.
(Canadian Judicial Council, Commentaries on Judicial Conduct (1991), at p. 12.)
It is obvious that good judges will have a wealth of personal and professional experience, that they will apply with sensitivity and compassion to the cases that they must hear. The sound belief behind the encouragement of greater diversity in judicial appointments was that women and visible minorities would bring an important perspective to the difficult task of judging. See for example the discussion by the Honourable Maryka Omatsu, "The Fiction of Judicial Impartiality" (1997), 9 C.J.W.L. 1. See also Devlin, supra, at pp. 408‑9.
The same reasoning was adopted by the Constitutional Court of South Africa in a decision delivered on June 4, 1999 (South Africa (President) v. South African Rugby Football Union, [1999] S.A.J. No. 22 (QL)). That court noted in particular that no recusal application could be founded on a relationship of advocate unless the advocacy was regarding the case to be heard (see para. 79). It reviewed the similarity of the tests in the United Kingdom, the United States, Australia and Canada (see paras. 35 to 44).
The writings referred to by the applicant do not reveal any prejudgment of the issues in this case. As formulated by Le Dain J. in Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 685, partiality is “a state of mind or attitude . . . in relation to the issues and the parties in a particular case”, a real predisposition to a particular result. The applicant would have to show wrongful or inappropriate declarations showing a state of mind that sways judgment in order to succeed.
In conclusion, I find that no evidence was adduced demonstrating that my beliefs or opinions expressed as counsel, law professor or otherwise would prevent me from coming to a decision on the basis of the evidence.
For these reasons, I would deny the motion.
Cases cited
- R. v. S. (R.D.) 25063-1997-09-26 paras 112 and 113, para 119 ¶ 2, ¶ 3
- Devlin Devlin, supra, at pp. 408 pp. 408 ¶ 3
- Valente v. The Queen 17583-1985-12-19 p 685 ¶ 5