When Should You Recuse? A Canadian Perspective

posted by Judge_Burke @ 19:22 PM
September 27, 2019

From Judge Wayne Gorman: In R. v. Van Wissen, 2018 MBCA 100, October 4, 2018, the appellant brought an application to have Monnin J.A. recuse himself.  The nature of the application was described in the following manner:

The accused alleges, because of comments I addressed to his counsel during the course of his submissions on one particular ground of appeal, that I demonstrated a reasonable apprehension of bias. He alleges that the comments made indicate that I had decided the issue in advance of the case being disposed of; that my comments undercut his argument that his grounds of appeal were to be dealt with cumulatively; and that I was deciding this appeal on the basis of past history.

Monnin J.A. dismissed the application.  He indicated that “[u]nlike trial courts, where judges typically do not descend into the arena, appellate court judges are expected to enter the fray and challenge counsel and the validity of the arguments being advanced.  It is appropriate for appellate court judges to play an active role in the appeal hearing” (at paragraph 16).  Monnin noted that an appeal is not a “tea party” (at paragraph 20):

I acknowledge that I used strong language in my exchange with Mr. Glazer, but when that exchange is taken in context, it falls short of demonstrating that I had, or have, a reasonable apprehension of bias towards the accused.  A Court of Appeal hearing is not a tea party.


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