The test to be applied is whether a reasonable person, with knowledge of the relevant circumstances, would have a reasonable apprehension of bias that is real and substantial on the part of the decision maker. As stated in Committee for Liberty and Justice v. National Energy Board,  1 S.C.R. 369 at p. 394:
The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.
Watt J. (as he then was) in R. v. Bertram,  O.J. No. 2123 (Ont. S.C.) at p. 21 expanded upon what “bias” means in this context:
In common usage, bias describes a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case. In cases involving judicial disqualification, bias generally refers to the mental attitude or disposition of the judge towards a party litigant, rather than any views that he or she may entertain regarding the actual subject-matter of the dispute.
After closely scrutinizing the whole of the trial proceeding involving the appellant, with the greatest of respect to the learned Justice of the Peace, I find that there is a reasonable apprehension of bias.
To commence, let me acknowledge the difficult task that was faced by Her Worship. It is one that is all too commonly faced by Justices of the Peace who hear provincial offences charges. Put simply, these trial courts are faced with lengthy dockets with the pressure of trying to complete them in a sitting, often litigated by unrepresented defendants with little experience or knowledge of the substantive and procedural law, some quite upset about the perceived injustice in their case, in a crowded courtroom with perhaps less than ideal staffing or facilities.
It is all too easy in such circumstances for a Justice of the Peace or a Judge for that matter to become frustrated or impatient. Nevertheless, it is precisely in such a trying environment that there must be a conscientious and concerted effort to adhere to the well-known principle “that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
Unfortunately, in this case, this was not done. I hasten to add that nothing that I say should be construed as a finding that the Justice of the Peace was in fact biased. In many ways, she was fair and patient. There is no challenge on this appeal to her reasons for conviction or sentence. Nor do I make any criticism of the conduct of the appellant’s paralegal that represented him at his trial (the same paralegal that represents the appellant on this appeal). He was simply trying to represent his client to the best of his ability.
The trial started out badly. After the prosecutor asked that the defendant be arraigned on the speeding offence, the Justice of the Peace made this comment:
THE COURT: Okay, Your client doesn’t want to resolve? He doesn’t understand that it’s in best interest to resolve. How many trials do I have to do for speeding before people understand? Could I see that?
DEFENCE: Well, Your Worship…
THE COURT: Okay,You were allegedly going at 80 in a 60, sir. Okay? Was there a resolution presented to your client?
DEFENCE: I believe there was one offered on the first occasion. I can certainly talk to my friend here.
THE COURT: Talk to your friend.
In my opinion, there are a number of things wrong with what occurred here. First of all, it was the Justice of the Peace who initiated the inquiry about potential resolution. Before that, the Justice of the Peace was advised that this was going to be a trial and the prosecutor had immediately thereafter asked that the defendant be arraigned. At this moment in time, the Justice of the Peace was being called upon to be the trial court to hear the charge against the defendant. A trial where the defendant was entitled to be presumed innocent of the charge.
When the Justice of the Peace asked the agent why his client did not want to resolve, in the context, this could have only have meant a resolution by way of a guilty plea. If there were any such resolution discussions conducted earlier, the Justice of the Peace should have refrained from making inquiries into it when it was clear the matter was going to trial. The defendant was entitled to have an impartial and unbiased adjudicator who would decide the case based upon the evidence heard. Not one who seemed to assume he was guilty from the beginning. This was exacerbated by the Justice of the Peace taking the further step in encouraging the defence to speak to the prosecutor about resolution.
Obviously, the most significant problem was the comment made that it was in the defendant’s best interest to resolve and the intemperate remark about how many speeding trials the Justice of the Peace had to do before people understood it was in their best interest to resolve. Of course, that was said before any evidence was heard. A reasonable and right minded person having heard these comments would only conclude that the court was predisposed to conviction on speeding trials. This apprehension of bias was substantial. The comment regarding how many speeding trials the Justice of the Peace had to do before people simply decided to plead guilty rather than having a trial, could only signify to the defendant that it was futile to have a trial since in this jurist’s mind, a conviction was inescapable.
I appreciate that after the paralegal returned and advised the Justice of the Peace that a resolution could not be obtained, the Justice of the Peace said that it was absolutely the appellant’s right to have a trial. While this somewhat ameliorates the effect of the impugned statements, it does not remedy them. This comment could reasonably be interpreted as meaning that while it was the appellant’s right to insist on a trial, this may still be a trial pre-ordained to a conclusion in favour of the prosecution.
If the balance of the trial was without blemish, I may have regarded this exchange as simply an unwise and hasty comment made during perhaps a demanding day in the Provincial Offences Court.
This did not prove to be the case. P.C. Hayward was cross-examined by the appellant about the tests he performed to ensure that the laser was operating properly on the day in question. These tests he performed at the police station using the device. In one such test, he measured the distance in performing the tests using a measuring wheel. When the appellant attempted to use a printout of an engineering supply company that supplied such measuring wheels, apparently off the internet, the prosecutor objected. Without ruling specifically on the objection, the following exchange took place:
THE COURT:Do you have any other questions relevant for the officer?
DEFENCE: I do.
THE COURT:And how long will you be, ?
DEFENCE: I’ve got 20, 25 questions. I’ve got quite a bit.
THE COURT:Well I think this is too much. You have…
DEFENCE: I’m sorry?
THE COURT: …to focus on…
DEFENCE: I’m sorry?
THE COURT:..what has been said. Okay?
DEFENCE: Your Worship, are you…
THE COURT:You have certainly the right to cross-examine the officer.
DEFENCE: Thank you. Thank you.
THE COURT: But you have to be precise and concise and the officer testified very clearly on all the tests he’s done. Anything else about the tests or about anything else?
DEFENCE: It seems as if you’ve already made a decision, Your Worship, in your mind. I haven’t even finished my cross-examination and you’re telling me I have to get precise. I don’t…
PROSECUTION: Certainly doesn’t seem that way to me, Your Worship.
THE COURT:I think you’re going all over the place. The officer has been very precise in explaining the test. Okay?
To be clear, there is nothing wrong in asking counsel how long they will be. It is done all the time and for good reason. Further, at times, to advise counsel that more focussed questioning or a certain focus to the questioning can be helpful both to the trier of fact and the questioner.
But in reviewing the cross-examination, there was nothing unfocused or prolix to the questioning. The purpose was to question the officer about the tests he performed to ensure the laser was operating properly. This was fundamental to the defence since the appellant denied speeding.
If he could undermine the reliability of the Lidar Atlanta’s results, this could raise a reasonable doubt. The cross-examination was brief and to the point. At the point the comment was made, the entire cross-examination spanned eight pages of transcript. The portion dealing with the tests, four pages of transcript.
Further, the comment made by the Justice of the Peace that the officer had been clear and precise was premature given that cross-examination on this point had only really begun. Whatever the tone of the exchange, it led the paralegal to question on the record if the Justice of the Peace had already made up her mind on the officer’s evidence.
Standing alone, there is not much substance to the apprehension of bias this exchange could cause in a reasonable observer. But when placed in context with the remarks made at the beginning of the trial, it becomes weightier. Again, a reasonable person could interpret the court’s comments as indicating a predisposed attitude towards conviction when it came to a speeding trial. In other words, that the cross-examination of the officer with respect to his operation of the laser was predetermined in the mind of the jurist as being of no value and a waste of time.
The cross-examination of P.C. Hayward continued. The appellant attempted to introduce the manufacturer’s manual for the Lidar Atlanta as an exhibit. The prosecution raised an objection to the manual being marked as an exhibit. The Justice of the Peace ruled that it could not be made an exhibit. This will be assessed as a separate ground of appeal below.
After the ruling was made, the following exchange took place:
THE COURT:Do you have any other questions of the officer? Otherwise, we will…
DEFENCE: Your Worship, I mean…
THE COURT: I don’t see what other questions you could have, other than making that on purpose very long. Okay?
DEFENCE: At this point, Your Worship, now my friend has been – I believe my client’s been prejudiced by the comments that you’re making on the record. You’re trying to state that I am purposely making the trial longer.
THE COURT: Absolutely. The officer answered…
DEFENCE: Thank you.
THE COURT: …very clearly all the questions that you had.
DEFENCE: Again, I’m going to say for the record….
THE COURT:And this is – if this was going to be a two-hour trial, you should have asked for a special.
DEFENCE: Well first…
THE COURT:It doesn’t come in a place where we have 62 cases. It was up to you to ask for a time frame properly.
There was no basis for the allegation that the paralegal was deliberately delaying the trial or making it longer. As already indicated, there was nothing wrong with the questioning. The Justice of the Peace also appears to have concluded any further cross-examination was pointless while the defence was still in the midst of developing its theory.
Again, in the context of the previous remarks already made in this trial, a reasonable person would come to the conclusion that the Justice of the Peace was biased against the defence. It would seem that what was driving these comments by Her Worship was a concern that this case was taking too long given its place in the busy docket of her courtroom. While her concerns may have merit in terms of the systemic operation of the courts, the individual defendant would legitimately feel that his defence was being sacrificed on the alter of expediency.
After this exchange, the Justice of the Peace and the agent for the appellant continued their discussion about whether it was appropriate to try this case in the busy courtroom and whose responsibility that was. The Justice of the Peace indicated she felt it was the defence who should have advised that the trial was going to be a two hour trial. The agent objected and stated that the trial had not yet taken a half hour and that the defence could not know that this trial, a second trial date for the appellant, would be placed on a docket along with over 60 other matters.
Then Her Worship stated the following:
THE COURT: We’re still – no, we have started 30 minutes ago and you’re still not finished your cross-examination. I still want to hear from your client, saying that he was not speeding.
DEFENCE: My client will take the stand. I was not finished my cross-examination. If it’s your ruling now that, that you’re cutting my cross-examination short because the state decides to put 60 matters on a docket, and I think it’s pretty ambitious of them to expect all 60 people to plead guilty, but if that’s what they want to do, they control the docket, we don’t, Your Worship.
PROSECUTION: Okay. Your Worship, I think…
THE COURT: We’re going to take five minutes. We’ll take five minutes recess, okay, now and we’ll come back. I’ll leave you a few minutes to finish your cross-examination, but I’m not going to accept…
After the recess, the agent returned and advised that he had no further questions for the police officer at that point. Undoubtedly, the Justice of the Peace took the five minute recess in order provide an opportunity for all involved to have a moment to regain the equanimity appropriate to a judicial setting. It was a sensible thing to do. However, the remarks made by the Justice of the Peace before she left the bench in the context of all of that which transpired before, would leave a reasonable observer to believe that not much scope was going to be left for any further cross-examination. Further, whatever the scope remaining, a reasonable observer would believe would likely be largely ineffectual from the perspective of the defence.
The appellant testified largely without interruption or incident. Submissions were heard and the Justice of the Peace gave oral reasons convicting the appellant. These reasons are not attacked by the appellant. Despite that, in my view, the harm had already been done. The comment made at the start of the trial and the related exchanges during the cross-examination of the police officer raised a reasonable apprehension of bias in favour of the prosecution. In short, a reasonable person would apprehend that the march to conviction was unstoppable and the defence was being chastised for wasting the court’s time in insisting on his right to a trial.
Therefore, I would give effect to this first ground of appeal.