Counsel:

      TRAFFORD J.:—

Introduction

¶ 1      On November 1, 1999, Decovan Brown, the appellant, was arrested under s. 253 of the Code for driving a motor vehicle on the Don Valley Parkway in Toronto, having consumed alcohol in such a quantity that its concentration in his blood exceeded the proscribed limit.  Before he was stopped by the arresting officer, he was driving at a speed slightly in excess of the posted limit in the area.  Traffic was moderate at the time.  Speeding is common on this freeway.  The motor vehicle driven was an expensive one, a Ford Expedition.  The appellant is a young black man.  At the time of the incident he was wearing a baseball cap and an athletic suit.  He was polite and courteous to the police throughout the investigation of the incident including when he gave samples of his breath.

¶ 2      At trial the counsel for the defendant made an application under s. 24 of the Charter for an order excluding the results of the breathalyzer tests on the basis of a violation of s. 9 of the Charter.  It was alleged by the defence that Mr. Brown was arbitrarily stopped by the investigating officer because of racial profiling rather than for driving at a speed slightly in excess of the posted speed limit.  The arrest, in the submission of the defence, was based on the stereotypical assumption that young black men who are driving expensive motor vehicles obtained them by crime or are implicated in recent criminal activity.  The defence had a significant amount of evidence to support the application. The evidence included an attack on the credibility of the arresting officer that was arguably substantiated, in part, by reliable independent evidence, and the testimony of the defendant.  He was presented to the Court as a respectable man who had no prior criminal record and played with the Toronto Raptors of the National Basketball Association.

¶ 3      The learned trial judge dismissed the application without calling upon the Crown Attorney for submissions.  A conviction was entered.

¶ 4     This is an appeal against conviction.

¶ 5      Having read the transcript as a whole and considered the submissions of counsel, I am satisfied that it is appropriate to allow the appeal and to order a new trial. These are the reasons leading to this conclusion.

The Nature of the Appeal

¶ 6      The appellant raises a number of issues for the consideration of this Court.  The learned trial judge misconceived the nature of the practice of racial profiling and the evidence required to establish it.  He conducted the trial in a manner giving rise to a reasonable apprehension of bias.  He appeared to prejudge the issues of the case.  He interjected in support of Crown witnesses.  His comments about the application constituted an unwarranted deprecation of defence counsel and his role.  Looking at the trial as a whole, in the submission of the appellant, the appearances of justice were undermined because of the inappropriate conduct of the learned trial judge.  The appeal should be allowed and the appellant should be acquitted.

The Position of the Respondent Crown

¶ 7      The respondent submits that, when the whole of the proceedings are considered, including the extensive submissions by defence counsel, there were no actions by the learned trial judge that would raise a reasonable apprehension of bias.  Nor was there actual bias in this case.  Through two days of evidence he showed an appreciation of the facts, the issues and the applicable case law.  He engaged in limited, but proper and relevant, dialogue with counsel and the witnesses to clarify questions and evidence given.  He attempted to identify the issues pursued by the defence and the evidence directed to them.  He ensured that he understood them.  Extensive cross-examination of the Crown witnesses was permitted.  The learned trial judge did not interfere with the proceedings, misapprehend the issues or belittle either the appellant or the defence counsel.  The result was not unreasonable.  He was entitled on all the evidence before him to dismiss the application and to find the appellant guilty of the offence charged.  It is not for this Court to analyze the evidence and to review the record at trial as if this appeal was a trial de novo.  The appeal, in the submission of the Crown Attorney, should be dismissed.

The Legal Principles Governing the Appeal

¶ 8      Let me begin, then, with a brief review of the legal principles governing the determination of the appeal.

¶ 9      In what circumstances may there be a finding that the conduct of a judge has raised a reasonable apprehension of bias?

¶ 10      Impartiality can be described as a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by the evidence and submissions of both parties.  In contrast, bias denotes a state of mind that is, in some way, predisposed to a particular result or is closed with regard to particular issues.  See R. v. S.(R.D.) (1997), 118 C.C.C. (3d) 353 at 387 (S.C.C.) per Cory J.

¶ 11      When it is alleged that a decision-maker is not impartial, the test that must be applied is whether the particular conduct gives rise to a reasonable apprehension of bias.  Actual bias need not be established.  See S.(R.D.), supra, at p. 389 per Cory J.  The test for bias 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 in the circumstances of the case.  The reasonable person must be an informed person with knowledge of all the relevant circumstances including the traditions of integrity and impartiality in the judiciary and the duties of judges to uphold them.  The reasonable person knows the social reality that forms the background to a particular case such as societal awareness and acknowledgement of the prevalence of racism in a particular community.  See S.(R.D.), supra, at p. 390 per Cory J.

¶ 12      The test for reasonable apprehension of bias is reflective of the reality that while judges can never be neutral, in the sense of pure objectivity, they can and must strive for impartiality.  See S.(R.D.), supra, at p. 367 per L'Heureux-Dubé and McLachlin JJ.  The presence or absence of an apprehension of bias, as evaluated through the eyes of the reasonable, informed, practical and realistic person who considers the matter in some detail, is not determined by a very sensitive or scrupulous person but rather by a right-minded person familiar with the circumstances of the case.  The reasonable person's knowledge and understanding of the judicial process and the nature of judging, as well as of the community in which the alleged crime occurred, must be considered.  Judges in a multiracial and multicultural society will approach the task of judging from their varied perspectives and with an apparent awareness of the sensitivity of the community to the issues raised by the case.  See S.(R.D.), supra, at pp. 369-370 per L'Heureux-Dubé and McLachlin JJ.

¶ 13      Although the threshold for a finding of real or perceived bias is high, Courts should be held to the highest standards of impartiality.  See S.(R.D.), supra, at p. 391 per Cory J.  There is a presumption that judges will carry out their oath of office.  See S.(R.D.), supra, at p. 392 per Cory J.  This presumption can be displaced with cogent evidence demonstrating that something the judge has done gives rise to a reasonable apprehension of bias.  Cogent evidence is required.  See S.(R.D.), supra, at p. 392 per Cory J. Suspicion is not enough.  The threshold is high because such a finding, as advocated in this appeal, calls into question not only the personal integrity of the trial judge but the integrity of the entire administration of justice.  However, as was stated by Cory J. in R. v. S.(R.D.), supra, at p. 392:

¶ 14      An Appellate Court reviewing the impugned conduct must do so in light of the whole trial and contextually.

¶ 15      For an elaboration of these principles see R. v. S.(R.D.), supra, R. v. Rose (2001), 153 C.C.C. (3d) 225 (Ont. C.A.) and Marchand v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 at 130 (Ont. C.A.).

The Analysis of the Trial as a Whole

¶ 16      Before looking at specific aspects of the trial, it is important to appreciate that the application under s. 24 of the Charter was based upon an allegation that the arrest of Mr. Brown resulted from racial profiling.   This is a sensitive issue to a multicultural community such as Toronto.  The application was not frivolous, vexatious or otherwise devoid of legal merit.  The defence had a significant amount of evidence to support the application.  It included an attack on the credibility of the arresting officer and the reliability of his evidence that was arguably substantiated, in part, by reliable independent evidence.  The independent evidence included a videotape of the arresting officer presenting the appellant to the senior officer at the station that arguably showed a second set of notes as alleged by the defence.  The arresting officer denied their existence.  Only one set of notes was disclosed to the Crown Attorney and the defence. Only one set of notes was used by him in Court.  There was also a computerized printout that arguably proved the arresting officer began a licence check on the Ford Expedition before he stopped the appellant and obtained, after he had stopped him, information that it was not reported stolen.  By then, in the submission of the defence, the arresting officer knew the basis for stopping the appellant was incorrect and had to do something to justify stopping him.  This attack on the credibility of the arresting officer was complemented by the testimony of the appellant.  If his testimony was accepted by the learned trial judge, it, like the videotape, could have proven the second set of notes and led inferentially to a conclusion that the only basis for stopping him in the circumstances of the case was a stereotypical assumption concerning young black men driving expensive motor vehicles. The approach of the defence was a simple one -- to attack the credibility of the arresting officer for the purposes of convincing the learned trial judge to reject his evidence on material points and to invite the Court to accept the testimony of Mr. Brown as credible and reliable evidence proving inferentially the subconscious racial stereotyping leading to the arrest.  While the learned trial judge eventually knew and appreciated the essential nature of the application, he did not show such an understanding at all material times throughout the trial.  The discretionary power given to a trial judge to call upon the defence at the beginning of an application under s. 24 of the Charter to summarize the anticipated evidence was not used in this case. See R. v. Kutynec (1992), 70 C.C.C. (3d) 289 at 301 (Ont. C.A.) for an elaboration of these principles.

¶ 17      Racism is a part of our culture and justice system.  In R. v. Parks (1994), 84 C.C.C. (3d) 353 at 369 (Ont. C.A.) Doherty J.A. said:

It is helpful to emphasize that racism, whether it be conscious or subconscious, will rarely, if ever, be proven directly.  If it is to be proven in Court, it will be proven most often through circumstantial evidence.

¶ 18      In my opinion, judges must be particularly vigilant in their efforts to impartially determine applications like this one.  Ample scope must be given to counsel attempting to prove such an allegation.  Interjections by trial judges in cases like this one to clarify evidence, to further the dialogue with counsel during submissions and to otherwise control the trial process must be undertaken with a keen sensitivity for the requirements of impartiality, the appearances of justice and the undeniable value of imposing just and appropriate sanctions against racism in the administration of justice where it is proven.  A judge hearing any such application must be scrupulously aware of the need to maintain the public confidence in the ability of the Courts to hear and determine such applications fairly.  As was said by Cory J. in R. v. S.(R.D.), supra, at p. 385:

¶ 19      Let me make a number of comments about specific aspects of the conduct of the learned trial judge in this case.

¶ 20      First, as the application was clearly one of arguable merit, the remarks made on sentencing, namely:

were completely inappropriate.  In my view, they create an appearance of a mindset throughout the trial inconsistent with the duty to be impartial.  No defendant need apologize to anyone for an application brought at trial by a competent defence counsel where the application is of arguable merit, even if it does not succeed.  For a trial judge to regard the presentation of such an application as distasteful is a significant departure from his/her obligation to ensure the appearances of justice and the essential fairness of the trial.  It is materially inconsistent with the duty of a judge to hear and determine the application with an open mind. Similar observations by this Court would be appropriate if the learned trial judge had accepted the defence position on the application and suggested to the police officer that he apologize to the defendant.

¶ 21      Second, while dialogue with counsel during submissions can, and often times does, move the trial to an orderly conclusion by defining the issues to be determined and inviting counsel to make concise submissions on them, that is not what occurred in this case.  Here, the learned judge entered into the following dialogue with the defence counsel during his submissions:

This remark arguably showed a failure to appreciate material aspects of the evidence at a late stage in the trial.  It also arguably showed a failure to appreciate that racial profiling can be a subconscious factor impacting on the exercise of a discretionary power in a multicultural society.  Granted, the learned trial judge invited defence counsel to persuade him of the merit of his position.  This invitation, however, was a hollow one as the appearances of this dialogue in the context of the trial as a whole are reasonably open to the interpretation that he had determined the merit of the application before counsel was heard on it and that he did not understand the practice of racial profiling.   This interpretation of these remarks is consistent with the inappropriate remarks he made while sentencing the appellant.

¶ 22      Third, several remarks made by the learned trial judge during the cross-examination of the arresting officer on material aspects of the application, viewed in the context of the trial as a whole, appeared to show a failure to understand the importance of the evidence, a tendency to prejudge the merit of the application or an inclination to assist the officer at critical stages of the cross-examination. Interjections leading to these appearances occurred during the cross-examination of the arresting officer on a number of important themes -- the driver was believed to be a black man as soon as the arresting officer's attention was directed to the Ford Expedition, the existence of a second set of notes that was destroyed and not disclosed to the defence and the time when the appellant was pulled over in relation to the computerized check done by the arresting officer to see, inter alia, if the licence was reported stolen.  Despite saying that he had not made up his mind and would listen to the application, the comments of the learned trial judge that "... it is a very serious allegation ... and if it is based on the kind of questions you are asking now, I find it a little troubling ...", viewed reasonably, created the appearances of a very different mindset at these and other critical stages of the trial.

¶ 23      Fourth, in the context of these points, the remarks of the judge admonishing the defence counsel for the tone of his voice in the cross-examination of the arresting officer and the references to the amount of time being taken to present the application take on a different meaning than might first be apparent.  By themselves, they would not be sufficient to allow the appeal.  In the context of the trial as a whole, they added to the appearances of injustice in this case.

¶ 24      Looking at these themes, in the context of the trial as a whole, I am satisfied that there is a reasonable apprehension of bias in this case.  This is not a case of a trial judge being biased.  This analysis on appeal is not a substitution of my view of the merit of the application for the view of the learned trial judge.  The result he arrived at was not unreasonable.  However, this is a case where a reasonable person who is aware of the prevalence of racism in our community, the nature of the application and the traditions of integrity and impartiality in the judiciary would, after looking at the trial as a whole, reasonably apprehend a bias on the part of the learned trial judge.

Conclusion

¶ 25      Accordingly, the appeal is allowed and a new trial is ordered.

TRAFFORD J.

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