Globe and Mail

Judge rules that he can assess his own impartiality

Minority-language advocate, challenged by lawyer, is trying a case involving French schools in PEI

KIRK MAKIN
Justice Reporter
The Globe and Mail
Saturday, November 20, 1999

Lawyer Roger Langille was taken aback when a Supreme Court of Canada judge whose impartiality he had challenged declared himself capable of assessing the matter on his own.

The judge, Mr. Justice Michel Bastarache, ruled that despite his history as an advocate of minority-language rights, he could fairly judge an appeal about French schools in Prince Edward Island.

The decision was sudden. Feeling that the court was raring to get on with the appeal, Mr. Langille -- a lawyer for the Prince Edward Island government -- took his lumps and sat down.

A week later, he has some misgivings.

"It may have been the convention to do it that way, but it is nonetheless troubling that a judge who is the subject of concern would take it upon himself to endeavour to determine how a reasonable person would perceive it," Mr. Langille said, stressing his comment was a personal opinion.

The unusual drama raises important questions about judicial bias and how it is dealt with. Can a judge accurately assess his own hidden prejudices? Is there a need to detect genuine bias -- or should a judge step down promptly if there is a mere perception of bias?

After losing the Bastarache motion, Mr. Langille said he knew instinctively that the court viewed his challenge as a dead issue. However, a colleague of Judge Bastarache -- Mr. Justice Jack Major -- said yesterday that the ruling could have been appealed to the other eight judges.

"Up here, where there is no further appeal, we have to have a sort of in-house solution," Judge Major said in an interview.

There will be less confusion next time. And unquestionably, there will be a next time. With scrutiny and criticism of the judiciary increasing almost daily, Judge Bastarche won't be the last judge forced to confront the issue.

"I am inclined to take the coward's way out: If somebody doesn't want you to sit, I wouldn't sit," Judge Major said. "But you just can't do that. You would immediately open the floodgates. Judges would be challenged in every case.

"It can get to extremes, like in England, where these applications have become almost a cottage industry. A lot of lawyers now start their case by trying to have judges excused from the case. If it works in other countries, it is likely to spread."

Judge Major said the motion is just the sort of incident that has caused many judges to think twice before giving a speech or interview.

"I think it probably acts as a bit of a deterrent to judges speaking out," he said. "On the other hand, I don't know that judges should be speaking out. You don't want to become a monk, but it is also inappropriate to get into the fray."

Judges find themselves caught in a bind, Judge Major said. They can either stand mute and be lambasted for grasping at power and usurping the role of Parliament. Or, they can risk being criticized for attempting to explain the duty of a judge under the constitution.

"The average person doesn't know much about law," Judge Major said. "His or her views are driven by media reporting. I frequently read reports of decisions and understand why people get upset. They are not quite what was said. It is easy in these decisions to jump to conclusions when you only read half of it.

"But if we speak out too frequently in order to educate, are we simply bellyaching?" he asked. "I guess there is a happy balance."

While political attacks on the judiciary have not reached the point of "pitchforks and flaming torches in the streets," Judge Major said, there has been an undeniable escalation.

"I think a bit of the criticism for political activism, as it is called, relates to playing the political game," he said. "You have got to be seen as addressing the issue and getting votes."

Judge Gerald Seniuk, a Saskatchewan Provincial Court judge active in judicial education programs, said judges almost always fear that they will inadvertently say something that will come back to haunt them.

"It is not a very good life that way," he said. "You can't speak. You are constrained. You are always aware of it."

Judge Seniuk said all judges believe implicitly that they can and will shelve an opinion or belief in order to render a fair decision. "I have worked with thousands of judges, and everything they strive for is impartiality," he said.

"A judge is a judge is a judge -- regardless of their political background or whether they acted as defence or prosecutor. It's universal."

But critics say judges may be sincerely blind to the fact that their impartiality has been compromised. That is certainly Mr. Langille's belief in the PEI schools case, where the question was whether there were enough eligible children in the Summerside area to order the creation of a separate school.

Mr. Langille argued that an appearance of bias clung to Judge Bastarache because:

Prior to being appointed to the court, the judge was recognized as a leading scholar and advocate of minority-language rights.

He previously represented two of the intervenors -- in a case that involved similar issues -- involved in the PEI case: La Commission des Parents Francophones and La Société Franco-Manitobaine.

He co-authored a text with one of the intervenors in the PEI case, Pierre Foucher.

Prior to being appointed, Judge Bastarache argued in several courts for the right to establish French schools and programs of instruction.

Whether the threat of setting a dangerous precedent was in his mind when he vouched for his impartiality last week, Judge Bastarache appears to have raised the bar for any lawyer attempting to show a judicial bias in the future.

This came about because Judge Bastarache departed from the standard legal test of whether a realistic, informed person would think it more likely than not that the judge in question would be incapable of deciding a case fairly.

Judge Bastarache instead stressed the need to find genuine bias rather than merely a perception of bias.

"I find nothing in the material submitted by the applicant that would cause a reasonable person who understands the complex and contextual issues to believe that I would not entertain the various points of view with an open mind," he said in his ruling.

"In conclusion, I find that no evidence was adduced demonstrating that my beliefs or opinions expressed as counsel, law professor or otherwise would prevent me from coming to a decision on the basis of the evidence."

Judge Bastarache did not respond to requests for an interview.

Judge Major noted that there are ramifications when a Supreme Court judge excuses himself from a case. An appeal heard by just eight judges can result in a tie vote, he said. A second judge must often drop off in order to maintain an odd number.

It is common to have foreknowledge -- and a formed opinion -- on notorious cases, Judge Major said. He said these cases have frequently had a thorough airing in the media long before they get to court.

"Unless you live on another planet, you can't help but have an opinion. You are just required to have some common sense and say: 'Can I judge this impartially?' "

Like all lawyers, he said, he began learning how to divorce his opinions from his performance the moment he donned his robes. "If you are asked to represent a skinhead, you may say: 'I have absolutely no regard for what you stand for, but you are entitled to a defence,' " he said.

"If somebody, as a lawyer, made a speech against capital punishment, that doesn't mean they should be precluded from sitting on a case involving the legality of capital punishment," Judge Major added.

"You and I go through life forming opinions about a variety of things, and changing them as time goes on. You have been a socialist in high school, but by the time you want a car you are a right-wing conservative."

Judge Major said he has dropped off several appeals upon discovering he knew a participant or a lawyer too closely, but he said he has yet to encounter a case where his opinions on an issue were too strong to overcome.

He said the case of Sue Rodriguez -- a terminally ill B.C. woman who wanted the court to legalize assisted suicide -- posed a special challenge. (Ms. Rodriguez lost in a 5-4 Supreme Court of Canada decision.)

"You could not have had a more sympathetic person bringing an application, and I'm sure all the judges had personal views on that," Judge Major said. "But everybody felt we just have to work at this and decide whether it was a violation of the Charter."

A chief justice might occasionally sit down to chat with the judge involved about a bias allegation, Judge Major said, but only with a relatively young judge. "If push comes to shove, it is up to the judge to decide," he said.

"Should a judge sit down when he has no bias, but some of the public thinks he does?" he asked. "It is not clear. But if the whole world thinks he does, maybe he shouldn't sit."

Judge Seniuk said the issues are quiet different for trial judges. He said they must be especially vigilant against viewing the accused or witnesses in stereotypical ways.

"You have to be conscious of the danger of bringing in vague, stereotypical concepts that pollute your decision-making process," he said.

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