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Apprehension of Bias Analysed
Published in the November 2006 issue of Litigation Notes - View Article
The case arose from the arrest of two black Canadian men of Jamaican descent, Mr. Grant and Mr. Peart. In the early hours of the morning they were driving a Honda Prelude and pulled into a gas station. Police officer Ceballo, who also happened to be black, was in his patrol car nearby and ran a computer check on the Honda Prelude because, as he later testified, it is a type of car which is often stolen.
When the car left the gas station, it rapidly reached a high rate of speed, well in excess of the speed limit. Officer Ceballo gave chase and activated his lights and siren. Instead of stopping, the car continued to travel at a high rate of speed until it reached Mr. Peart’s residence. Officer Ceballo had called for back-up and Mr. Peart and Mr. Grant were arrested in a high-risk takedown. They sustained injuries in the course of their arrest, for which they sued the Peel Regional Police.
They alleged that their arrest had been improper, because it was the result of racial profiling. Their action was dismissed by the trial judge and they appealed to the Court of Appeal for Ontario alleging that the trial judge was biased. The appeals were dismissed and in doing so the Court of Appeal made some interesting observations on the nature of apprehension of bias.
The caselaw has established that in determining whether a judge has demonstrated bias, an objective test is applied. Would a well informed, reasonable person conclude that bias has been demonstrated? In making this assessment, the reasonable person“…must bear in mind that anti-black racism, both on an individual and institutional level is a reality in the community…must appreciate that both explicit and institutional racism affect the way that the police see and treat black persons and the way black persons react to the police…must understand that police misconduct can be racially motivated, even if the officer does not consciously appreciate that motivation…[and must understand] that not every claim of racism, even where honestly made is valid”.
However, the appellants and the African Canadian Legal Clinic (ACLC), who intervened on the appeal, argued that it is not sufficient that the well-informed reasonable person appreciate the relevant social reality. They argued that the hypothetical reasonable person must share the race of the person alleging a reasonable apprehension of bias. In other words, the test is partly objective and partly subjective. The reasonable person must be someone, as the ACLC said in its factum, who “occupies the shoes of the person affected by the decision…[and has]…a meaningful understanding of what it means to be in a position of historic and ongoing disadvantage”.
This argument was rejected by the Court of Appeal, on the basis that it traces its jurisprudential roots to the equality caselaw developed under section 15 of the Canadian Charter of Rights and Freedoms. Section 15 of the Charter provides that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”.
Our courts have held that consideration of discriminatory conduct pursuant to Section 15 of the Charter requires a subjective-objective analysis. This is because Section 15 proscribes state action which discriminates against individuals or groups based on one of the enumerated grounds. As stated by the Court of Appeal: “The reasonable reaction of the target group of the distinction must be taken into account because it is the effect of the distinction on that group that largely determines whether that distinction amounts to discrimination and a violation of Section 15 of the Charter”.
…“The impact of a race based distinction can only be meaningfully measured in human terms through the eyes of someone who is subjected to that distinction.”
The same is not true in the case of an analysis of reasonable apprehension of bias:“Judicial partiality is not a matter of personal perception. The personal characteristics of a litigant, such as race, may well affect the litigant’s personal view of judicial partiality, but they can not create a reasonable apprehension of bias where one would otherwise not exist. The outcome of a bias enquiry cannot turn on the perspective of the party advancing that claim. There either is or there is not a reasonable apprehension of bias”.
The Court went on to say that it is not unusual for an unsuccessful litigant to perceive the proceedings as unfair and the judge as partial, but that “...to equate that personal perception of bias with a reasonable apprehension of bias is to use a subjective and inherently partial perspective to decide whether a proceeding was conducted impartially.”
The hypothetical reasonable person is an “analytical device that will inevitably reflect the world view of the judge” and a proper reasonable apprehension of bias inquiry “...demands that the judge be aware of his or her own world view and appreciate how others may see the relevant circumstances.” However, “...as difficult as it may be to blend these perspectives, it is no answer to abandon that effort in favour of an inherently subjective and one-sided inquiry”.
Peart v. Peel Regional Police Services Board, 2006 CanLII 37566