Chisholm v. MacDonald, J., (1985) 68 N.S.R.(2d) 337 (TD)

• Judge: Grant, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 07, 1985
• Jurisdiction: Nova Scotia
• Citations: (1985), 68 N.S.R.(2d) 337 (TD)

Chisholm v. MacDonald, J. (1985), 68 N.S.R.(2d) 337 (TD);

    159 A.P.R. 337

MLB headnote and full text

Chisholm v. MacDonald, J.

(S.AT. 00532)

Indexed As: Chisholm v. MacDonald, J.

Nova Scotia Supreme Court

Trial Division

Grant, J.

March 28, 1985.

Summary:

The accused was charged and pleaded not guilty to the offences of impaired driving and dangerous driving contrary to ss. 234 and 233(4)(b) of the Criminal Code of Canada, respectively. Alleging bias, the accused applied for an order to prohibit the Provincial Magistrate Court judge from hearing the two charges against him.

The Nova Scotia Supreme Court, Trial Division, dismissed the application.

Civil Rights - Topic 3135

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to independent and impartial tribunal - The accused was charged with impaired driving and dangerous driving - The Provincial Court judge scheduled to hear the charges previously represented a plaintiff in a civil assault action against the accused six years earlier, before being elevated to the bench - The judge had also recently made public comments to the media indicating his pre-disposed attitude in sentencing for these particular offences - The Nova Scotia Supreme Court, Trial Division, held that these factors did not endanger or preclude the accused's right to be tried by an impartial tribunal under s. 11(d) of the Charter - See paragraphs 15 to 16; 35 to 36 and 45.

Courts - Topic 685

Judges - Disqualification - Bias - General - The Nova Scotia Supreme Court, Trial Division, noted that it was fundamentally important that justice should not only be done, but should be seen to be done - The court held that to disqualify a person from acting in a judicial capacity, on the ground of interest in the subject matter of the proceeding, there must be a real likelihood or a perception of real likelihood of bias - This likelihood must be based upon reasonable apprehension; mere suspicion is not enough - The situation must be such that a reasonable man in all the circumstances would consider there was a likelihood of bias - See paragraphs 10 to 14.

Courts - Topic 689

Judges - Disqualification - Bias - Participation in prior proceedings - The accused pleaded not guilty to two offences under the Criminal Code of Canada - Alleging bias, the accused applied to prohibit the Provincial Court judge from hearing the charges against him - Six years earlier, before being elevated to the bench, the judge represented a plaintiff in a civil assault action against the accused - The Nova Scotia Supreme Court, Trial Division, dismissed the accused's application on the grounds that the facts did not give rise to a reasonable apprehension of bias and there was no real likelihood or a perception of real likelihood of bias in the circumstances - See paragraphs 1 to 9 and 16 to 18.

Courts - Topic 690

Judges - Disqualification - Bias - Comments to media - The accused pleaded not guilty to a charge of impaired driving - Alleging bias, the accused applied to prohibit the Provincial Court judge from hearing the charge against him - The judge had previously made comments to the media that all persons convicted by him exhibiting "gross" impairment or blood-alcohol readings over .20 could expect at least one week in jail - These comments were later quoted and discussed in several issues of the local newspaper - The Nova Scotia Supreme Court, Trial Division, dismissed the accused's application - The court held that in the circumstances there was no real likelihood or reasonable apprehension of bias - See paragraphs 19 to 34 and 37 to 44.

Cases Noticed:

R. v. Campbell (1981), 49 N.S.R.(2d) 307; 96 A.P.R. 307, consd. [para. 11].

Committee for Justice and Liberty et al. v. National Energy Board (1976), 9 N.R. 115; 68 D.L.R.(3d) 716 (S.C.C.), consd. [para. 12].

Blanchette v. C.I.S. Ltd. (1973), 36 D.L.R.(3d) 561, consd. [para. 13].

R. v. Walker (1968), 3 C.C.C. 254 (Alta. S.C.A.D.), consd. [para. 14].

R. v. Gosling, [1921] O.L.R. 50, refd to. [para. 26].

R. v. Menzies Ex Parte Skoff, [1970] 1 C.C.C. 345, consd. [para. 27].

R. v. McLaren (1984), 62 N.S.R.(2d) 152; 136 A.P.R. 152, refd to. [para. 29].

R. v. Lowry and Lepper, [1974] S.C.R. 195, refd to. [para. 36].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(d) [paras. 3, 5, 15].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 234 [para. 31].

Authors and Works Noticed:

DeSmith, Judicial Review of Administrative Action, pp. 250, 399 [para. 10].

Halifax Chronicle-Herald, November 23, 1983, p. 1 [para. 20]; December 10, 1983, p. 1 [para. 22]; December 13, 1983, p. 1 [para. 23].

Counsel:

Daniel J. MacIsaac, for the applicant;

Kenneth W.F. Fiske, for the respondent.

This application was heard in Chambers at Halifax, Nova Scotia, on March 7, 1985, before Grant, J., of the Nova Scotia Supreme Court, Trial Division, who delivered the following decision on March 28, 1985.