SRL wins case on judicial bias

SRL wins case on judicial bias

We often hear from self-represented litigants that they are concerned about impartiality and even conflicts of interest in their appearances before a particular judge. Unfortunately, this is symptomatic of a growing crisis of confidence in the justice system among some members of the public. A recent Alberta Court of Appeal decision (Carbone v. McMahon, 2017 ABCA 384) addresses this directly.

SRL Angela Carbone had asked that the managing judge in her Alberta Queen’s Bench civil action be replaced, because she was concerned about his earlier solicitor-client relationship with counsel for the defendants. Although her recusal application was initially rejected, the Alberta Court of Appeal agreed with her, and asked Chief Justice Moreau to terminate the appointment of Mr. Justice Nixon and replace him with another judge.

A majority judgment written by Mr. Justice Wakeling stressed the importance of the public’s perception of judicial impartiality. The Justice asserted that it is not enough for the judiciary to actually be impartial. Rather, the public must also perceive judges to be impartial. While the public understands that judges have private lives and they may in the past have retained the services of a lawyer, there is an obligation to disclose “… facts which might reasonably give rise to a perception of bias or conflict of interest” (para 90). Moreover, if a judge has any doubts about the relevance of a fact, it should be disclosed.

The public’s confidence in the judiciary, as ultimate arbiters of disputes, is largely due to their impartiality. As the majority states it: “Any standard must be evaluated from this perspective – does it promote public confidence in the judiciary as impartial decision makers?” (para 92).

(case summarized by Joanna Pawlowski, RA)

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Comments (5)

  • sandra olson

    this is a VERY good step forward. It is not just a perception that judges lack impartiality when it comes to the self represented. They are prejudiced AGAINST the self represented. One of the common thoughts that seems to pervade the legal profession,, from top to bottom, is that people are self represented because we want to be. because we believe we are smarter then most lawyers, or, are lawyer wanna be’s. Despite research having shown this to be untrue,, this continues to cast a nasty shadow throughout the judicial system. And it affects judgements. Mostly the self represented are looked upon in a nasty way, that is reflected in the judgements, in the pronouncement of many of us as “vexatious”. and in the deliberate way the court will assess and leve costs against the self represented. Evidence is ignored, no explanations are given for ignoring it. And the self represented are neatly removed as are our rights to access to justice. This data base, will help, but unless the biased attitude from the judicial system is stopped, in its tracks, we fight uphill. Lawyers all support each other, and ignore any case they can get away with ignoring, when it comes from the self represented. I have tried to get someone to submit a new evidence paper I obtained, no lawyer will take it. Even AFTER they read the new evidence,, and say it is good!!! The prejudice against the self represented is mean spirited and has the spirit of bullying about it. Let us hope this case from alberta is somehow, a beginning to us being heard.

    December 13, 2017 at 12:15 pm
    • Michelle

      Sandra, I agree with everything you have said about how the self-represented are treated in Canadian courts. My experience with the BC legal system was awful. Some judges and masters are worse than others. There was one female judge who sort of took a benevolent attitude and tried to offer some guidance but overall most were just outright prejudiced against us. Opposing counsel took advantage of that prejudice and ran with it. Awful experience.

      December 13, 2017 at 2:21 pm
  • Jason Lisburn

    Just got out of court today getting a Consent Parenting Order from Alberta registered here in BC. Opposing counsel joined by phone and despite representing the Respondent in what was MY Application, he was allowed to give his point of View first (doesn’t the applicant go first?). As all he had to offer was lies and insinuations, so he was guided by the Judge to the relevant section (and subsection) of the BC code to help him make his legal argument. Then finally, he asked me why I wanted the order recognized, why I was applying!
    Really! I had to pay over $10k to get that kind of advice ( the exact section & subsection I need to pinpoint my a case upon) from a lawyer in AB in relation to my Parenting Case.
    It didn’t matter because there was/is really no reason for the judge to reject my claim and he didn’t/couldn’t, but I was amazed at how he spoon-fed the AB lawyer his job. I’ve just checked and that lawyer isn’t licensed to practice in BC, so did he have any right to ‘appear’ as opposing counsel in the first place?
    Amazing how the rules get bent your way if you are in the game and away from you when you are not. Talk about an old boys club!
    Having said that being an SRL is the only way to go for parenting cases, lawyers DO NOT CARE. It’s taken me 3.5 years, 3 assault charges (- she hits the kids), 3 order breaches and we’re mid Practice Note 8 parenting assessment to get even this far. If you hire a lawyer, your kids will be grown up before you see any Justice and by then you’ll be broke and your kids broken.
    The few months here and there during 3 years that I have had a lawyer has always put me back years in the process. It’s only when you make headway for yourself that you realize how much they hold you back. This has convinced that above all else they are not part of the solution, they are just there to make money from your problems, and to make them worse (by taking your money).
    Case in point, my issue today, had opposing counsel given legitimate advice to his client (don’t fight this – there’s no point, it’s purely an administrative process); he’d have saved her money, instead he made a thousand bucks off her (while complaining to the court about how little money she has).
    I knew this and I’m not a lawyer, only a 3yr SRL; all it takes is a little pre-reading and a highlighter! I’m constantly amazed how the lawyers in Family court (in both BC and AB) are always unprepared, ill-advised, and not in possession of recent client instructions – half the time they don’t seem to know why they are even there and most of the ‘hearing’ is the Judge helping them out in working out what is being requested of the court or how they should handle it.
    Chin up SRLs, you can win even with the odds stacked against you! Really, most lawyers ain’t that good, I’ve won every argument in court I’ve had so far against a lawyer.
    Due Diligence and Confidence, and you’ll pick up confidence along the way.

    December 13, 2017 at 8:42 pm
  • allen

    As for me and my house, our belief about judges in Alberta will NOT change: They are biased (and even worse). This just makes me start looking what position of higher office is on the horizon for that is the only time we get a rare ruling such as this one

    We need to write to that Kim Campbell judge appointing committee about our right to notice when any judge is being considered for higher office or new judicial appointment. When judges become truly accountable to the public then and only then will they act properly

    December 14, 2017 at 3:57 am
  • Derek Thompson

    Why do the Rules of court not tell the people that you can file an application to get a Judge recused ?? May be because they control the rules of Court & are trying to give themselves protection? I Believe that you should just be able to write to the Chief or associate Justice of the court your action is in & request this . According to this decision that is what the appeal court is implying/ requesting in their conclusion.
    Lets look at it this way . It now costs the person requesting a Judges to be recuse . $50. to file application plus coping, plus time to do all of this . Next if the Judge does not recuse themselves , that party requesting the recuse , no has to pay $500. for losing the application ( forms of punishment the Judge in question does use against any one requesting them to be recused .) or Lawyer / client costs which is around $5,000. Then the costs & lost time to appeal that decision which costs Thousands more !! & if you lose Thousands of dollars more , plus now you have a Judge that is mad at you for appealing their decision & in the position to punish you even more with vexatious litigant declarations & what every else the Judge can think of knowing full well that you can not get them removed . This is designed to punish any one trying to get a judge recused .
    Lets cut out all the expenses & time lost &make this a duty that the Chief or Associate chief Justice must handle!!

    December 14, 2017 at 3:10 pm

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