N.R. (an African-Canadian) was a suspect in joyriding and theft, and was in the process of being arrested by a police officer, Stienburg (a Caucasian), when R.D.S. (an African-Canadian) approached the scene. There are differing statements – the officer says that R.D.S. ran into him with his bike in an attempt to help his cousin N.R. get free, however R.D.S. says that he simply came over to talk to N.R. and ask if he wanted his mother to be told, at which point the officer harassed him and told him to "shut up" or he’d be arrested. The only witnesses were R.D.S. and Steinburg. R.D.S. was charged with assaulting a police officer for the purpose of interfering with his arrest, assault, and resisting arrest. The youth judge dismissed the case. Justice Glube allowed the original appeal in a solo decision. The Court of Appeal dismissed an appeal from that decision.
- Is there reasonable apprehension of bias on the part of the judge?
In the youth court trial, Sparks dismissed the charges stating that the Crown had not proven beyond a reasonable doubt that R.D.S. had hit the officer. Sparks, who is black, also said that some of the actions of the police officer fit in with the "prevailing attitude of the day", indicating that she believed that police officers tended to be racist towards young black males. This made the Crown appeal on the basis that there was a reasonable apprehension of bias in her decision, which Glube agreed with, remanding the case back to youth court for a new trial.
Flinn, writing for the majority in the Court of Appeal, set out the test for the reasonable apprehension of bias by saying that 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". This essentially asks what an informed person, viewing the matter realistically and practically and having thought the matter through would conclude. He holds that Sparks' words satisfy that this test because a reasonable person would conclude that there is an apprehension of bias.
The majority in the Supreme Court allow the appeal and reinstate the original acquittal. They employ the same test, and although they conclude that Sparks was "close to the line", they do not find a reasonable apprehension of bias. The majority states that it was entirely legitimate for the Judge to use her personal experiences and understanding of the justice system in her decision, and that she did not do so in an unfair way.
There is a reasonable apprehension of bias if an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that there is one.