NB Court of Appeal upholds judicial impartiality presumption in criminal action

No reasonable apprehension of bias even if sentencing judge is same judge who denied bail

NB Court of Appeal upholds judicial impartiality presumption in criminal action

There is a strong presumption of judicial impartiality that can only be rebutted by sufficiently serious grounds, the New Brunswick Court of Appeal has ruled in a break-and-enter criminal case.

In Tucker v. R., 2022 NBCA 59, a seasonal camp caretaker in Gray Rapids, located in New Brunswick’s Miramichi region, reported a break-and-enter that occurred during the night of April 24, 2021. Nathan Tucker was later arrested and charged for the offence. Tucker pled guilty and he was sentenced to imprisonment of 15 months and a probation order of two years.

Not comparable to other case

On appeal, Tucker argued that another person who was apparently convicted on a similar break-and-enter charge received a lighter sentence. He asserted that, as a similar offender in similar circumstances, he should receive a similar sentence. However, the appeal court did not find any evidence before the sentencing judge with respect to this other individual and, consequently, no comparison between the cases could be made. The court also said that it was highly unlikely that this person’s specific circumstances would be comparable to those of Tucker, whose criminal record contained at least 35 previous convictions.

No reasonable apprehension of bias

Tucker also alleged that there was a reasonable apprehension of bias on the part of the sentencing judge because it was also the same judge who had earlier denied Tucker bail. The appeal court, however, did not find any basis in law for such an allegation.

The court said that judges are required and expected to approach every case with impartiality and an open mind. The requirement of judicial impartiality is a stringent one, and the threshold to establish is high because the integrity of the administration of justice presumes fairness, impartiality, and integrity in the performance of the judicial role. The court also said that the grounds giving rise to the apprehension of bias must be sufficiently serious to rebut the presumption that the judge will abide by their oath of office. There is a strong presumption of judicial impartiality that is not easily displaced, so the test for a reasonable apprehension of bias requires a “real likelihood or probability of bias.”

The appeal court also referred to existing case law, stating that the mere fact that a judge heard another related matter was not sufficient to disqualify a sentencing judge. Judges are mandated to discharge their judicial duties with impartiality and integrity, and at all times to do justice according to law. The appeal court found that a reasonable person, properly informed, would see no apprehension of bias in Tucker’s case.

The court acknowledged the rule established by jurisprudence that an appellate court is not at liberty to substitute its view of fitness for that of the sentencing judge unless the sentence imposed is the product of either an error of law or an error in principle, or unless it is clearly unreasonable. The court found that none of the prerequisites for appellate intervention were present in Tucker’s case. As a result, Tucker’s appeal was dismissed.

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