Defendants S.C.A. No. 02623 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S.; Chipman and Freeman, JJ.A. BETWEEN: J.B.B. and C.B.B. and J.A.B., W.H.B. and W.C. Respondents Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on January 7, 2008 Karen Kinley for the Appellants Andrew Pavey for the Respondents, J.A.B. and W.C. Patricia Dunn for the Respondent, W.H.B. Judgment Delivered: May 1, 1992 Appeal Heard: April 16, 1992 THE COURT: Appeal allowed, decision of Judge of the Family Court set aside and the matter remitted for a new trial, per reasons for judgment of Clarke, C.J.N.S.; Chipman and Freeman, JJ.A. concurring. Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94(1) provides: 94 (1) No person shall publish or make public information that has the effect of identifying child who is witness at or participant in hearing or the subject of proceeding pursuant to this Act, or parent or guardian, foster parent or relative of the child. CLARKE, C.J.N.S.: The primary issue in this appeal is whether certain conversations the trial judge had with counsel during the course of trial create an apprehension or perception of bias, as that term is used in the law. Briefly stated, the facts relative to the issue are these. This case concerned a custody application in the Family Court involving two infant children. They were voluntarily placed in the care of the appellants by their birth mother and her male companion who is the natural father of the younger of the two. In due time the Administrator of Family and Children's Services in the province of Nova Scotia, acting pursuant to the Children's Services Act, then S.N.S. 1976, c. 8, authorized the appellants to apply for the custody of the two children, the elder being about three and one‑half years old and the younger, fourteen months. Before the judge at trial were parties with competing interests. The appellants sought custody pursuant to the authority given them by the Minister of Community Services. The, birth mother and her common law companion wanted the custody of the two children returned to them. The natural father of the elder child wanted the custody of his child to be granted to the appellants but in the alternative, if not to them, then to him rather than his former wife who, as noted, was the birth mother of the child. All three parties were represented by their own counsel. After the evidence was called on behalf of the appellants and the evidence of the natural mother, on direct only was heard, the trial judge asked all three counsel to come to his chambers which presumably means his office outside the courtroom. There he had a conversation with them which was subsequently placed on the record by counsel of the appellants. What counsel said and what the judge said appear in the record at pages 117 through 120. It follows: "THE COURT: Yes, ready to proceed? MS. KINLEY: Yes Your Honour, would like to address the Court prior to proceeding with cross examination. Ah, following J.A.B.\'s direct evidence on Friday, ahm, when we adjourned for lunch, when we returned after lunch, ah, Your Honour requested that all three counsel meet with you in your chambers and at that time you indicated that you felt it would be a waste of everyone\'s time to proceed with the trial. Ah, given your opinion of the natural mother, J.A.B., should be granted custody of the two children and that that should be done immediately, ahm, when Counsel was given the opportunity to convey your comments to our clients, ahm, speaking for my own clients I know they were upset and con, and confused ahm by those comments. Ah, after discussion between Counsel and further discussions with our clients, ah, requested again in Chambers that we adjourn this matter to December 10th, being today when that time had already been set aside. Ahm this was due to the fact that my client now felt we needed further time to consider our options. Ahm, both my clients and myself felt that there was evidence yet to be presented that ahm, that should be heard, ahm, so today our options at this time are to continue ah with the trial in the belief that perhaps we\'re wasting our time and waiting (SIC) the Court\'s time or the other option is to request formally that you remove yourself ah from hearing this case, ahm and in the circumstances we would request that you, that you consider removing yourself from the case refer Your Honour to rule ah 1503 from the Family Court Ruling which states that 'where an application ought to be made to or any jurisdiction exercised by Judge by whom proceeding has been heard on trial in whole or in part' and I'll skip over the part that isn't relevant, 'or for any other reason, for any other reason it is impossible or inconvenient for the Judge to act in the proceedings, Judge may either ah by special order by general order applicable to any class of proceeding, nominate another Judge to whom the application will be made or by whom the jurisdiction may be exercised'. Ahm, while my clients realize that Your Honour has experiences in these matters and, and you have heard two and half days of testimony and that you may be in position to make decision at this time, my clients can't help but feel that the outcome has been predetermined without the benefit of all the evidence being presented and without the cross examination of the key witness. So we would request at this time that Your Honour consider making an order under rule 1503, the Family Court Rules nominating another Judge. THE COURT: Well Ms. Kinley must say you've surprised me very much. First of all my recommendation was made in Chambers, now you're getting all this on record for appeal purposes obviously. must say that find that very, very underdone, this is not the way that things are done in Courts today that understand. But perhaps you have found new way to do things. Nevertheless I\'m going to continue with the trial. At the time the trial judge made the remarks imputed to him by counsel and which on the record he has not denied, there remained to be heard the crucial cross examination of the mother of the children, the entire case of the third party being the natural father of the elder child, rebuttal evidence, if any, and the submissions of counsel. After the trial judge made the ruling noted above, he continued the case and rendered a decision awarding custody of the two children to the natural mother and of the younger child to her father, the male companion of the mother. The appellants contend in this appeal that the actions of the trial judge amounted to a denial of natural justice by creating an apprehension of bias. Put another way, the appellants allege he appeared to have decided the case before he heard all the evidence. To them he gave the appearance of closed mind. With these submissions, I agree. The right of all parties to be heard before an‑independent and impartial judge who hears all the evidence that is admissible is the essence of fair trial. Otherwise, the confidence of those whose rights are to be adjudicated upon will be undermined and justice will neither be done nor be seen to be done. That which constitutes reasonable apprehension of bias is well documented by the treatises of legal scholars and the judgments of the courts. Reid and David in their text, Administrative Law and Practice, second edition, write at p. 231: A.. They (referring to courts) consist essentially of neutral judge deciding contests brought before him by others upon facts which are revealed only in hearing attended by all persons having an interest. He decides in accordance with 'the law' which comprises legislation and reports of decisions in similar cases. The keystone in this structure is the neutrality of the judge. Should even the appearance of it be lost the usefulness of the court is at an end and the structure collapses. In celebrated, if overworked, phrase, 'Justice should not only be done, but should manifestly and undoubtedly be seen to be done.' This overriding need for neutrality, in appearance as well as in fact, dictates standard requiring freedom from even the appearance of bias. Nothing less will do. The nature of the tribunal itself governs the nature of the rule. Thus, the standard that courts apply to themselves, called here, for convenience, the 'common‑law' bias rule, does not require proof that bias influenced the result; it is enough if appearances reasonably justify the apprehension that it might have done so." In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon and Others, [1969] Q.B. 577 (Eng. C.A.), Lord Denning stated at p. 599: ". in considering whether there was real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in judicial capacity. It does not look to see if there was real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could he, nevertheless if right‑minded persons would think that, in the circumstances, there was real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand: see Reg. v. Huggins; and Rex v. Sunderland Justices, per Vaughan Williams L.J. Nevertheless there must appear to be real likelihood of bias. Surmise or conjecture is not enough: see Reg. v. Camborne Justices, Ex parte Pearce, and Reg. v. Nailsworth Licensing Justices, Ex parte Bird. There must be circumstances from which reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right‑minded people go away thinking: 'The judge was biased'." Among the Canadian authorities to which reference should be made is Committee for Justice and Liberty et al. v. National Energy Board (1976), 1976 CanLII (SCC), 68 D.L.R. (3d) 716, where de Grandpre, J. of the Supreme Court of Canada observed at pages 735‑736: The proper test to be applied in matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be reasonable one, held by reasonable and right‑minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal [at p. 667], that test is 'what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly?' can see no real difference between the expressions found in the decided cases, be they 'reasonable apprehension of bias', 'reasonable suspicion of bias', or 'real likelihood of bias'." Other judgments to like effect include Regina v. McClevis, Ex parte Robbins (1971), 1970 CanLII 1100 (ON SC), C.C.C. (2d) 238, Galligan, J. at p. 241; Blanchette v. C.I.S. Ltd., [19731 S.C.R. 833, Pigeon J. at pages 842‑843; Regina v. Divizio (1986), 1986 CanLII 4714 (ON SC), 32 C.C.C. (3d) 239 (Ont. District Court); Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities, file: 22060, judgment rendered: March 5, 1992, (S.C.C.). There are number of Nova Scotia judgments to which reference should also be made. In the context of this appeal, attention is drawn to Children's Aid Society of Halifax v. M.B. and R.W. (1988), 85 N.S.R. (2d) 34. That case also related to an application for the custody of an infant. The submission of apprehension of bias was advanced to the presiding Family Court judge based upon comments he had made during an earlier application concerning another child of the respondents. In reasoned judgment the Family Court judge reviewed the law and withdrew from the case. He said at p. 38, para. 24: would not want to do anything which might bring the administration of justice into disrepute. have declined jurisdiction because strongly believe that regardless of delay and any hardships my decision may cause to the system of which we are all part, the preservation of respect for the judicial system is of utmost importance." The general law to which have referred has been followed and applied in judgments of this Court. Recent examples include R. v. R.T.J.T. (1989), 93 N.S.R. (2d) 101; Maclntyre v. MacDonald, S.C.A. 02232, June 13, 1990; R. v. Colley (1991), 1991 CanLII 2534 (NS CA), 105 N.S.R. (2d) 178 and R. v. MacLean (1991), 1991 CanLII 2526 (NS CA), 106 N.S.R. (2d) 213. In R.T.J.T. complete and running file concerning the record and other matters of an accused youth had been placed on the judge's bench before the judge heard an application affecting the youth. While there was no allegation of actual bias, the issue was whether the judge's access to the file created reasonable apprehension. In allowing the appeal, Matthews J.A. said at p. 102: The principle applicable in this case is that expressed in The King v. Sussex Justices; ex parte McCarthy, [1924] K.B. 256, at p. 259: >... long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. .. In Maclntyre, judge took view of property which was subject of the proceeding before him without notice to the appellant or his counsel. Chipman J.A. stated: ". In the course of his so doing, there were inevitably some communications between the judge and the respondent. While there is no suggestion that any injustice in fact resulted, the perception that arises is such that in our view there should be new trial." In Colley the judge refused counsel of the accused the right to make submissions before his client was committed for trial on several counts of fraud. justice cf the Trial Division quashed the order of committal and remitted the matter to the same judge for rehearing. This court confirmed the order quashing the committal and, in addition, directed that it should not he returned to the same judge who first heard it. Freeman J.A. said at p. 180: reasonable person might arrive at that conclusion. While the words of [the judge] might be innocuous in another context, following as they did the denial of the right of counsel to address the court, they raise reasonable apprehension that his mind was made up. In those circumstances, any decision [the judge] might come to after hearing the submission of counsel would be tainted by the suspicion. We are satisfied the appellant has met the evidentiary burden for setting aside decisions in like circumstances as discussed in de Smith, Judicial Review of Administrative Action (4th Ed. 1980), Stevens Sons Ltd. London, pp. 262‑268." In R. v. MacLean, the trial judge, before hearing submissions of counsel, indicated that he had already written his decision and considered the arguments had already been "summed up". For this court, Chipman J.A. said at pp. 214‑215: In our opinion, it is incumbent upon trial judge to give party appearing before him an opportunity to present argument before making decision on any issue. In particular, party must be allowed to make submissions at the close of the evidence. See R. v. Aucoin, 11979 CanLII 29 (SCC), 1979] S.C.R. 554. In the context of criminal case, these rights are among those guaranteed to an accused as component of fundamental justice under s. of the Charter, and more particularly by s. 11(d) thereof, and by s. 802(1) of the Criminal Code. The trial judge did not expressly deny either the Crown or the respondent the opportunity to present further argument. Indeed, it is clear from reading the portion quoted above that although he told counsel that he had already written his decision, such argument was not precluded. In reality however, reasonable counsel could conclude in the face of such statement that any such argument could be mere formality, could carry little or no weight with the judge and indeed might involve the risk of irritating the court. In our view, whatever way the judge had already written his decision, the appearance of injustice to the losing party was there. The respondent was effectively denied his right to make meaningful closing submission. The situation is not saved by the fact that the trial judge considered the matter summed up on four occasions throughout the hearing. We are unable to imply waiver of the right of final argument in the circumstances which existed here. Indeed, the significance of final argument was recognized by the trial judge himself on February 21st when he adjourned the trial for that very purpose." Since 1982 the Canadian Charter of Rights and Freedoms has entrenched in the Constitution of Canada by s. 11(d) the provision that person charged with an offence has the right to be presumed innocent until proven guilty according to law in fair and public hearing by an independent and impartial tribunal. In the conduct and carriage of civil actions the law of Canada requires the same standard fair and impartial hearing. The test is objective: what reasonable person would think in the circumstances. Here it would be that the judge had made his decision before all the evidence from all the parties was heard. Conversations between the presiding judge and counsel in the judge's chambers during the course of trial relating to the issues at trial are neither protected by immunity nor exempt from the proper application of the law. For the reasons given would allow the appeal, set aside the decision of the judge of the Family Court and any order based thereon, and, finally, would remit the matter to the Family Court for new trial. There will be no costs to any party. C.J.N.S. Concurred in: Chipman, J.A. Freeman, J.A. 90 F.LB. NO. 119 IN THE FAMILY COURT FOR THE PROVINCE OF NOVA SCOTIA BETWEEN: J.B.B. AND C.B.B. and J.A.B., W.H.B. AND W.C. RESPONDENTS BEFORE HIS HONOUR JUDGE ROBERT C. HEBB, Judge of the Family Court for the Province of Nova Scotia HEARD: October 29, 1991; October 30, 1991; December 6, 1991; and December 10, 1991 DECISION: February 7, 1992 COUNSEL: Karen Kinley for the Applicants, J.B.B. and C.B.B.; Andrew Pavey for the Respondents J.A.B. and W.C. Patricia Dunn for the Respondent W.B. S.C.A. No. 02623 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: J.B.B. and C.B.B. and J.A.B., W.H.B. and W.C. Respondents REASONS FOR JUDGMENT BY: CLARKE, C.J.N.S.
During a hearing involving an application for custody contested by three parties, the trial judge heard only the appellants' evidence and the direct examination of the natural mother before calling counsel to his chambers and advising them that the hearing was a waste of time and custody should be granted to the natural mother. Counsel for the appellants subsequently put the matter on record and requested the trial judge withdraw, alleging an apprehension of bias. He refused, and after completing the trial, awarded custody to the natural mother and her common-law companion. The decision was appealed. Allowing the appeal, setting aside the decision and ordering a new trial, that the circumstances created a reasonable apprehension of bias which resulted in a denial of natural justice. In the conduct and carriage of civil actions the law requires a fair and impartial hearing.