Background
Joyce Mwanz was convicted of sexual assault following a trial before Justice Frank D. Crewe of the Ontario Court of Justice on December 19, 2022. On appeal, Mwanz raised a single ground: that the trial judge’s exchanges with defence counsel during the proceedings gave rise to a reasonable apprehension of bias.
The impugned exchanges fell into two categories. The first arose during a pre-trial re-election application, when the trial judge repeatedly interrupted defence counsel, pressed him to support his arguments with caselaw, and ultimately remarked that counsel was “not being terribly helpful.” The second category arose during the trial itself, when defence counsel on three separate occasions posed questions to witnesses rooted in prohibited myth-based reasoning — including a suggestion that the complainant had acted in a manner “unusual” for a sexual assault survivor and attempts to follow up on the complainant’s prior sexual history. Each time, the trial judge intervened after being alerted by Crown counsel, and after the third incident expressed pointed frustration with defence counsel’s apparent unfamiliarity with s. 276 of the Criminal Code.
The appellant argued that these exchanges, viewed cumulatively, showed the trial judge was not open to defence arguments, and that the judge treated Crown and defence counsel asymmetrically — noting that the Crown had also inadvertently elicited prior sexual history evidence without judicial objection.
The Court’s Holding
The Court of Appeal (Miller, Paciocco and Wilson JJ.A.) dismissed the appeal. Applying the well-established test from Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, the court asked whether a reasonable and informed person, thinking the matter through realistically, would conclude the trial judge had not decided the case fairly. The court found the appellant had not rebutted the strong presumption of judicial impartiality.
On the re-election exchange, the court held that the trial judge’s interruptions, though not ideal, were genuine attempts to engage with defence counsel’s arguments, and that the judge had in fact explicitly told counsel he remained open to persuasion. On the trial exchanges, the court acknowledged the trial judge’s sharp words were “not appropriate,” but held that not all criticism of counsel — even unfair criticism — amounts to bias. The dispositive question, as stated in R. v. Marrone, 2023 ONCA 742, is whether the criticism was advanced in a way that revealed predisposition toward one side, and the court was not persuaded that threshold was met here.
The court also rejected the asymmetry argument. The trial judge had not been alerted to the Crown’s improper elicitation of prior sexual history at the time it occurred; it was only flagged when defence counsel attempted to exploit it for similarly impermissible purposes. The Crown’s misstep did not render defence counsel’s myth-based questioning permissible, nor did the judge’s silence on the Crown’s error demonstrate favoritism.
Key Takeaways
- The test for reasonable apprehension of bias carries a strong presumption of judicial impartiality and a heavy burden on the party seeking to rebut it; frustration and pointed criticism of counsel, standing alone, do not meet that burden.
- A trial judge’s interventions to prevent myth-based questioning under s. 276 of the Criminal Code — even repeated and sharply worded ones — do not constitute bias where they are triggered by defence counsel’s own improper conduct rather than by predisposition.
- Perceived asymmetric treatment between Crown and defence must be assessed in context; a judge cannot be faulted for failing to object to improper Crown evidence that no party brought to the judge’s attention at the time.
Why It Matters
This decision reinforces that judicial impartiality doctrine distinguishes between a judge who is harsh or short-tempered and one who is actually biased. For defence counsel in criminal trials, it underscores that repeated violations of the rape-shield provisions of the Criminal Code are likely to draw strong judicial responses — and that those responses will be difficult to characterize as bias on appeal.
The case also offers a practical reminder about s. 276: courts will hold defence counsel to a high standard of familiarity with the legislation and its prohibitions, and expressions of judicial displeasure at non-compliance are unlikely to ground successful bias claims absent a clear showing of predisposition.