A number of Francophone families living in Summerside made a request to the French Language Board to build a French language school in the community rather than bus the children to the closest French school 57 minutes away. The Board made a proposal to the Minister which was rejected. The family applied for a declaration against the province to build a school in Summerside. At trial the declaration was granted but was overturned on appeal. Prior to the language rights hearing, the counsel for the government sought to have Bastarache recuse himself for reasonable apprehension of bias due to his past history of championing the French language.
- Should Bastarache J recuse himself from the case on the basis of reasonable apprehension of bias?
Bastarache dismissed the motion saying there was nothing that would cause a reasonable person who understands the complex and contextual issues to believe that he would not have an open mind. The test for apprehension of bias takes into account the presumption of impartiality so the onus on the applicant to show a likelihood or probability of bias. He refers to R v RDS and the decision of Cory J who stated:
True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.
Finding that no evidence was adduced which would demonstrate that his beliefs or opinions would prevent him from coming to a decision on the basis of the evidence, he dismissed the motion.
To make a finding of reasonable apprehension of bias the applicant must show evidence that there is a likelihood that the judge would be unable to determine the case on the facts.