Judicial Temperament

In a widely reported decision, Laver v. Swrjeski, 2014 ONCA 294, the Ontario Court of Appeal set aside a decision of Superior Court Judge John McMunagle for apprehension of bias. The case involved an application that money advanced by the applicant to her daughter and her daughter’s common law husband for the purchase of a home was a loan, to be treated as an unregistered mortgage. The daughter and common law husband were Ottawa police officers, known to Justice McMunagle during his prior career as a criminal defence lawyer. Credibility was a central issue in resolving the dispute. Some of the comments made by Justice McMunagle, to the effect that he could not make credibility findings against police officers, are set out below:

Okay, let me stop you there. That’s my concern, gentlemen, and let me just lay it on the line. Someone is not being truthful, and we have police officers, whom I know and respect and, gentlemen, you’re asking me to make a finding that one of them isn’t being truthful, and I’m prepared to do that, but there’d better be some strong, strong evidence.

I have to make a finding of credibility, and I don’t want to do that with police officers and with senior police officers, because I – as my recently deceased father said, “Your reputation is like your virginity, son. You lose it once”, and I don’t want to make a decision on the record, available to the public, where I am forced to say one side is being truthful and one side is not, so I simply – that’s the elephant in the room, gentlemen, because of what these folks do for a living. I wouldn’t be so concerned if they were federal civil servants. Frankly, I wouldn’t be concerned at all, but they are Ottawa police officers, who I have huge respect for, given that I was a defence lawyer for 23 years, and reputation is all they have. It’s all we have as lawyers, judges, everybody, so I’m just letting you know. I’m very troubled by what I may have to do.

But you understand my concern and my uber-sensitivity given that I’ve work – you know, I’ve done cases with all these officers. I don’t know them personally. I know them professionally, and so that’s my – and maybe I’m being over-sensitive here because of my background, but all you have is a reputation, gentlemen.

Take your time, please, because I can tell you both, gentlemen, this case is not going to be decided – I’m not going to make any finding nailing anybody’s reputation here. The case is going to be decided based on the evidence and based on the balance of probabilities, but there’s no way that I’m going to make a finding that either one of your clients is lying or misleading or anything like that; not going to happen.

It’s based on evidence, just so we’re clear, so when you’re making your reply you might want to deal with that issue, because I’m very uncomfortable because I know these people. I worked with them for a long time, so I even thought, frankly, I was going to excuse myself, but then I thought, no, I don’t know them that well. I’ve never, you know, socialised with them ever. I’ve just had them as – when they accused my client of wrongdoing- or clients. Anyway, go ahead. Carry on.

Because just by her own financial statement, the woman at the very least is worth over a hundred grand, so that’s – I have a problem with that poor as a church mouse impression when the reality is, you know, you’re not. (Referring to the appellant)

So I’m just saying: that causes me a great deal of concern when basically the only document that you can refer to as a so-called “document” is this one where he says “Owed to Louise, 35,000” and then he gives an explanation saying “Look, take the money. As long as I have my daughter I’m fine”. That’s your strongest piece of evidence versus the other. So we’re going to take 10 minutes, speak to your client and see if we can come up with some explanation or something, because you know, worst case scenario, she’s sworn a false affidavit. Best case scenario, there’s a confusion or a misunderstanding about filling out the form and whoever her family lawyer was didn’t explain it to her properly. But you can’t say you’re paying these expenses when the evidence is you’re not paying a dime. I have a concern about that.

Having reviewed the totality of the judge’s comments, the Court of Appeal said “These comments, when considered in the context of the hearing as a whole, would cause a reasonable person to conclude that the application judge was predisposed to make the credibility determinations before him in favour of the respondent.”

The decision has received a great deal of attention, no doubt because of the extent of the judge’s comments. However, the case seems to me to highlight an even more fundamental point than apprehension of bias: the importance of a judge maintaining proper decorum and temperament.

Litigants and counsel pay very close attention to a judge’s words and actions during the course of a contested hearing. It is demoralizing in the extreme for a party to feel they are not being properly heard, or receiving a fair hearing. It is of the utmost importance to the reputation and due administration of justice that a judge be seen to maintain an even hand. The Canadian Judicial Council “Ethical Principles for Judges” puts it this way:

A reasonable perception that a judge lacks impartiality is damaging to the judge, the judiciary as a whole and the good administration of justice. Judges should, therefore, avoid deliberate use of words or conduct, in and out of court, that could reasonably give rise to a perception of an absence of impartiality. Everything from his or her associations or business interests to remarks which the judge may consider to be “harmless banter,” may diminish the judge’s perceived impartiality.

The expectations of litigants may be very high. Some will be quick to perceive bias quite unjustifiably when a decision is not in their favour. Therefore every effort should be made to ensure that reasonable grounds for such a perception are avoided or minimized. On the other hand, judges have an obligation to treat all parties fairly and evenhandedly; those litigants who perceive bias where no reasonable, fair minded and informed person would find it are not entitled to different or special treatment for that reason. Moreover, as discussed below, the judge also has the obligation to ensure that proceedings are conducted in an orderly and efficient manner. This may well require an appropriate degree of firmness…

Litigants and others scrutinize judges very closely for any indication of unfairness. Unjustified reprimands of counsel, insulting and improper remarks about litigants and witnesses, statements evidencing prejudgment and intemperate and impatient behaviour may destroy the appearance of impartiality. On the other hand, judges are obliged to ensure that proceedings are conducted in an orderly and efficient manner and that the court’s process is not abused. An appropriate measure of firmness is necessary to achieve this end. A fine balance is to be drawn by judges who are expected both to conduct the process effectively and avoid creating in the mind of a reasonable, fair minded and informed person any impression of a lack of impartiality. These issues are more fully discussed in chapters 4 and 5,“Diligence” and “Equality.” It bears repeating, however, that any action which, in the mind of a reasonable, fair minded and informed person who has considered the matter, would give rise to reasoned suspicion of a lack of impartiality must be avoided. When such impressions are created, they affect not only the litigants before the court but public confidence in the judiciary generally.

It is, and indeed should be the case, that the expectations of litigants in the fairness of our system are very high. Justice is too precious a commodity to demand anything less.