Biased? Who, Me? [Reasonable Apprehension of Bias]

This is a follow-up (or, perhaps more accurately, a follow-on) from my most recent blawg post regarding students with behavioral challenges, in which which I noted that the parent had (unsuccessfully) argued that the Human Rights adjudicator was "biased" due to his previous practice providing legal services to school boards.

You will recall that the parent argued that her son required Applied Behaviour Analysis ("ABA") in order to receive a meaningful education. She was concerned that the adjudicator was predisposed to find that ABA was not education because

• during his legal career, a large part of his practice involved representing school boards in the areas of special education, human rights and litigation;
• in that capacity, he “repeatedly appeared as counsel to school boards seeking to achieve a finding that ABA is incompatible with education of autistic children”;
• the fact that he had argued on behalf of a school board that intensive behavioural intervention ("IBA") therapy was not a special education program or service raised a reasonable apprehension of bias arose with respect to the current situation;
• subsequent to those court cases, he had advised his school board clients that ABA was incompatible with the education of autistic children; and
• in an interim decision, he had placed restrictions on the parent’s evidence which precluded her from giving opinion evidence relating to whether “ABA at Tier 3" was education.

You will note that the correct wording is "a reasonable apprehension of bias", not that an adjudicator or judge is actually biased. The reason for this is two-fold; not only would it be much more difficult for a party to prove that the decision-maker is biased, but even the appearance of bias (to a reasonable observer) is enough to disqualify a decision-maker from hearing the case. I'm sure we're all at least somewhat familiar with the old adage that "Justice must not only be done, but must be seen to be done".

The test for finding a reasonable apprehension of bias is as follows:

. . . the apprehension of bias must be a reasonable one, held by reasonable and rightminded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “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.
[Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC),
p. 94]

Lawyers are ethically bound to make the best possible arguments on behalf of their clients, whether or not they reflect their personal views. Just because a lawyer advocates a certain position does not mean that he or she agrees with it. Further, having existing, even publicly expressed personal views prior to appointment should does not generally lead to a reasonable apprehension of bias.

It more or less makes sense if you think about it: to find otherwise would preclude adjudicators (and judges) from ever hearing cases in which an issue arises or might arise that also arose in a case in which they acted as counsel prior to being appointed.

... 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]

Many, however, have (quite legitimately, I believe) questioned how or why a judge can decide for himself whether or not he or she is biased. Shouldn't it be a different impartial actor in the justice system who makes this decision? I have often asked (or at least thought) the same question myself.

But the fact is that it is very judge whom appears biased to you that will decide whether you are right, whether he or she is biased (or at least appears that way). That's what makes an application for recusal on the basis of a reasonable apprehension of bias something to be very carefully thought through. Should you be unsuccessful in the bias application, the same individual you challenged will remain the ultimate decision-maker - this is the self-same person you will need to convince of the rightness of your case. And all of us are, after all, only human.

Although there is a right to appeal a judge's decision that there is no reasonable apprehension of bias, I believe it will be a very uphill battle to convince an appeal court overturn the initial judge's findings.

For any wishing to delve deeper into subject, I will send you off here. Happy travels.