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REASONABLE APPREHENSION OF BIAS-CONDUCTING A BAIL HEARING BEFORE A TRIAL

R. v. Valle-Quintero, 2021 ONCA 390, June 8, 2021, at paragraphs 6 to 9:

The appellant argues that a number of factors give rise to a reasonable apprehension of bias. First, he complains that A. O’Marra J. presided over a bail review only two months prior to being nominated as the trial judge. In addition, A. O’Marra J. declined the appellant’s recusal motion after he refused to permit the appellant to sit at the counsel table after the appellant resiled from his earlier willingness to do so with ankle shackles on.

In oral submissions, the appellant’s counsel concentrated on the fact that A. O’Marra J. stepped down after pronouncing the verdict in light of the Crown’s intention to pursue a dangerous offender application, announcing that the sentencing proceedings would be taken over by B. O’Marra J. The appellant submits that this raises a reasonable apprehension of bias because the two are in fact related to one another as first cousins. We disagree.

First, there is a strong presumption of judicial integrity and impartiality that the appellant has not displaced: see Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 25. Presiding over a bail review and seeing an accused’s criminal record does not disqualify a judge from presiding over a trial. Judges (as they regularly do in voir dire proceedings, for example) are expected and able to disabuse themselves of any prejudicial evidence that they might otherwise have encountered.

Nor does the trial judge’s refusal of the defence request that the appellant be permitted to sit at the counsel table disclose any reasonable basis for an apprehension of bias.