Can Judges Prepare Draft Reasons for Judgment Before Hearing the Closing Submissions of Counsel?
A trial judge may
sketch out draft reasons either in advance of hearing counsel’s submissions or
as those submissions are being offered, so long as the trial judge remains
receptive to persuasion by counsel’s submissions.
R.
v. Chue [2011]
O.J. No. 4149 (S.C.J.), per Nordheimer J;
R. v. Purewal, 2014 ONSC 2198.
Given the acute time pressures on trial judges, resort to this
practice may often be necessary.
No harm is created by the practice, and some practical benefit
may be gained for the process as a whole, so long as it is done with
considerable care for, and appreciation of, the impression it may create if it
is not undertaken in an appropriate manner.
R.
v. Chue [2011]
O.J. No. 4149 (S.C.J.), per Nordheimer J;
See also R. v. Purewal, 2014 ONSC 2198 (CanLII), 2014 ONSC 2198, per Durno J.
Of preeminent importance is that a judge must always keep an
open mind, both in reality and in appearance. [FN]
Some measure of time should be taken by a judge to reflect on the
submissions and to ensure that any draft or sketched out reasons have taken
them into account.
R.
v. Chue [2011]
O.J. No. 4149 (S.C.J.), per Nordheimer J.
However, there is a strong
presumption that judicial officers act exclusively out of consideration for the
interests of the court and the administration of justice generally (the presumption of judicial regularity).
A function of judicial independence is the ability of a judge to note
and document on paper, thoughts and reflections about the evidence, law, and
anything else logically connected with the judicial function of deciding a case
or part of it. A trial judge has no obligation to disclose to counsel of any party his or her own notes or preliminary or draft rulings.
R.
v. Bukin,
2018 ONCJ 146.
FN: Reasonable Apprehension of Bias--Bias is a predisposition to decide
an issue or cause in a certain way that does not leave the judicial mind open
and impartial: The burden
of establishing bias is on the party arguing that it exists. The test is well-established: What would an informed person, viewing the
matter realistically and practically – and having thought the matter through –
conclude? Would he think that it is more likely than not that the
decision-maker, whether consciously or unconsciously, would not decide fairly? There is a strong presumption of judicial
impartiality. The threshold is high for finding an apprehension of bias: Wewaykum
Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259; Committee for Justice and Liberty v. National
Energy Board, 1976
CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394.
Stuart
O’Connell, O’Connell Law Group. (All rights reserved to author).
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