CAPCJ / ACJCP

Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

REASONABLE APPREHENSION OF BIAS

In R. v. Cowan, 2022 ONCA 432, June 1, 2022, the accused was convicted of the offence of second-degree murder.  After the jury had entered the conviction, but before sentence was imposed, the trial judge met the Crown prosecutor of the offence for drinks and then dinner. In appealing from conviction, the accused argued that these events raised a reasonable apprehension of bias:

…the trial judge’s decision to attend a post-conviction, but pre-sentence, ‘drinks’ meeting with the prosecution team at a local restaurant immediately after the verdict was announced, and the trial judge’s decision immediately thereafter to go to dinner with only the trial Crown, taken alone or together, rises to the level of establishing a reasonable apprehension of bias.

The circumstances that occurred were summarized, in part, in the following manner (at paragraph 25):

· Almost immediately after the verdict and jury recommendations on sentence were completed, the judge contacted the crown to go for a drink.

· Upon arriving at the lounge, the judge suggested that they move to a table by the window.

· During drinks, the judge twice commented “as long as Mr. Ducharme [defence counsel] doesn’t walk in.” She also reported that she had asked other judges about Mr. Ducharme before the trial began.

· They briefly discussed the case, including the judge and crown agreeing that the jury was intelligent and the crown remarking that the verdict was fair. The judge also poked fun at the crown for not being able to control his facial expression in court.

The appeal was allowed.  The Ontario Court of Appeal stated that “when one measures the nature and number of undisputed facts as set out above against this test, the legal phrase that comes to mind, immediately for me, is res ipsa loquitur: the reasonable apprehension of bias speaks for itself”.

The Court of Appeal concluded as follows (at paragraphs 28 to 31):

The appellant’s trial related to the most serious offence in the Criminal Code, R.S.C. 1985, c. C-46, – murder. The trial had lasted three weeks. The trial was not over – the trial judge and counsel had just fixed a date for the sentence component of the trial. Within minutes of the jury’s verdict, the trial judge called Crown counsel to suggest they meet for a drink. She did not invite anyone else. The trial judge then agreed to join the Crown, a Crown articling student and a senior police officer involved in the trial at a nearby restaurant. Defence counsel was not invited or present.

Once together inside the restaurant, the trial judge referred to the absence of defence counsel at least twice, whether jokingly or not. The trial was discussed, albeit briefly. After the drinks meeting broke up, the Crown called the trial judge and invited her to dinner. The trial judge accepted and they went to a different restaurant. The four-person drinks meeting, in a public setting, lasted about an hour. The two-person dinner, in a public setting, lasted about two hours.

Returning to the S. (R.D.) test for reasonable apprehension of bias, this constellation of facts over a three-hour period would inevitably lead the “reasonable and right minded person” to conclude that the trial judge might have been biased in the very serious trial that had just finished.  

Whether the trial judge was actually biased or not is not the issue. The mere appearance of bias is enough to satisfy the test. In this case, it is difficult to imagine how the “reasonable and right minded person” would dispel the spectre of bias where the trial judge shares drinks and a meal with the prosecution team minutes after the jury entered a conviction on a very serious criminal charge.