Yet Another Reason the Wheels of Justice Grind Slowly

Two stories last week, one involving an appeal and one about a case just getting underway, showcase another delaying tactic in the arsenal of the deep-pocketed litigant: reasonable apprehension of bias.

The Ontario Court of Appeal released its judgment Friday in Ontario Provincial Police v MacDonald, 2009 ONCA 805, ruling on OPP Commissioner Julian Fantino’s effort to have an adjudicator removed from a disciplinary hearing.

As LaForme J.A. wrote for the court, the proceedings at the heart of Fantino’s appeal have a “long and complicated” history. They arise from a domestic dispute that the police were called to in April 2004. The dispute was between a member of the public, Cole, and her estranged husband Alarie, who was an OPP sergeant. She alleged that the sergeant had hit her car with a baseball bat. The OPP officer who was called to investigate chose not to arrest the sergeant, and no charges were laid.

This set in motion the events leading to the present appeal. Cole filed a public complaint against her husband, in accordance with the Police Services Act, RSO 1990, c P.15, which eventually (through an appeal) led to a recommendation that the OPP Professional Standards Bureau examine the actions of the investigating officers.

OPP Superintendent MacDonald was the Commander of the Standards Bureau, and had Inspector Jevons investigate the matter. Jevons found that OPP policies related to domestic violence had been followed, and that the decision to arrest Alarie was essentially a judgment call. She concluded that it would have been more appropriate to arrest Sergeant Alarie and charge him with mischief, but in the end, recommended that no further action be taken against the investigating officer, Zulinski. MacDonald followed this recommendation.

Cole appealed this decision. A new review panel concluded that there was sufficient evidence to charge Zulinkski with neglect of duty, and ordered a disciplinary hearing.

Not wanting to miss out on the flurry of complaints and hearings, the president of the Ontario Provincial Police Association filed an internal complaint about MacDonald and Jevons, alleging that a proper investigation would have exonerated Zulinksi completely. That process culminated in a recommendation that both officers be charged with one count of neglect of duty.

That recommendation led to a disciplinary hearing, which sets the stage for the current appeal. A hearing date was set, and the original adjudicator, a retired Toronto police officer, recused himself on the ground that he was close personal friends with the OPP Commissioner, Julian Fantino. Justice Montgomery, a retired judge of the Ontario Court of Justice, was brought in as the new adjudicator. The proceedings got under way in June 2008, and in July MacDonald and Jevons moved to stay the proceedings due to abuse of process. More hearings were held over nine days, and events occurred that the Commissioner suggested gave rise to a reasonable apprehension of bias. The prosecution then moved to have the adjudicator recuse himself. Justice Montgomery refused, and Fantino sought a review of that decision in Divisional Court.

The Toronto Star characterized Fantino’s concerns as resulting from Montgomery questioning his “professional conduct” during the hearing. Fantino also complained about other remarks the adjudicator made during the hearing.

The Court of Appeal dismissed Fantino’s arguments, upholding the Divisional Court’s decision (Ontario Provincial Police v MacDonald, [2009] 247 OAC 289 (ON SCDC)) and endorsing its statement of the law on reasonable apprehension of bias:

The removal of a judge is appropriate when there is shown to be a reasonable apprehension of bias. The test for apprehension of bias is set out in R v S(RD):

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. The test is what would an informed person, viewing the matter realistically and practically ‑ and having thought the matter through ‑ conclude (R v S(RD), [1997] 3 SCR 484 [S(RD)], paras 31 and 111).

The test contains a two-fold objective element: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable. ‘The grounds for this apprehension must, however, be substantial…and the test [will not] be related to the very sensitive…conscience.’ The reasonable person must have knowledge and understanding of the judicial process and the nature of judging.

Interestingly, this same issue of bias was before a court in Hamilton this week as well, as a case arising from the Six Nations protest in Caledonia almost four years ago got underway. A couple who owns a house located in the middle of the disputed lands is suing the province for damages as a result of how it handled, and settled, the case. According to the Globe and Mail, Dave Brown and Dana Chatwell allege that they are unable to sell their home and can’t live in it with any sense of peace because the government has told the OPP not to prosecute the “lawless conduct of the protesters.”

Before the trial opened, Superior Court Justice Thomas Bielby asked the lawyers to step into his chambers, and announced that Dave Brown’s lawyer, John Evans, had represented him 14 years ago in a professional negligence case that never went to trial. Evans was hired by the company that insures lawyers, and the two had met once, though Evans said that he did not remember the meeting.

Shortly after this revelation, the Crown then brought a motion asking Justice Bielby to recuse himself, arguing that the case raised serious issues respecting the Crown’s dealings with Aboriginals, and suggesting the Crown was “very concerned about this case proceeding when there’s even just the tiniest … whiff of a problem.”

However, as Michael Bordin (another lawyer for the Caledonia couple) argued, the test is not whether there is a tiny whiff of a problem. As the Court of Appeal confirmed days later, it is whether the apprehension of bias is reasonable. As the Supreme Court said in S(RD), the test is not related to a sensitive conscience.

On Thursday, the Hamilton Spectator reported that Justice Bielby was refusing to step down. Unfortunately, the Spectator also reported that the Crown will appeal Bielby’s decision, which will likely slow the case down and delay any final decision on the merits. Based on the authorities, Justice Bielby’s decision will surely be upheld.

The Crown should think twice about going through with the appeal and get on with its defence. Deep pocketed litigants don’t need to use every delaying tactic just because they can afford to.