The rules which govern the adversarial trial and appellate process, as distinct from the inquisitorial process, have evolved to help ensure that the issues, as defined by the parties, are decided on the evidence as led by the parties and the applicable law. Counsel are advocates on behalf of the parties and the judge is an impartial adjudicator who hears the evidence, listens to submissions, decides the facts on the basis of the evidence, applies the law to the facts and renders a decision. The appeal process is to ensure that error on the part of the judge may be identified and, where necessary, remedied.
Within this, the conduct of counsel is to be governed by applicable professional rules of conduct including civility and the process, as between counsel and as between counsel and the judge is not to be personal and is not to be personalized. That said, advocacy may be forceful, trials may be fiercely contested, opposing counsel may disagree with one another and counsel and judges may also at times find themselves in disagreement.
And while disagreement will generally be couched in appropriate legal language, such as that a trial judge has erred in his or her interpretation or application of law or has misapprehended the evidence, the legal language and the formal trial or appellate process may not eliminate the fact that counsel who have been ruled against, or a judge whose judgment has been appealed, will feel a personal sting. The robes of counsel and of the judiciary will not always protect against this.
The recent decision of McKesson Canada Corporation v. The Queen, 2014 TCC 266 provides a rare example of where it appears that litigation became, or was perceived as becoming personal as between counsel and the trial judge. In McKesson, the trial ended and appellant’s counsel filed an appeal. However, the trial judge was still seized with the issue of costs and a second incidental issue. On the basis of the notice of appeal and factum that was filed by counsel for the appellant, the trial judge recused himself on his own motion from hearing and deciding the remaining issues.
To begin, it is uncommon that a trial judge would refer to a notice of appeal or factums which have been filed against his or her judgment, but in McKesson the judge wrote:
It is not my habit to review the factums filed in the Federal Court of Appeal in respect of my decisions. In this case, the Appellant’s Factum was drawn to my attention or sent to me by several prominent Canadian tax lawyers as well as by a colleague on the Court.
With the factums having been brought to his attention, the trial judge wrote that he “became aware that the Appellant and Appellant’s counsel… had made certain public written statements about me in its factum in the Federal Court of Appeal…which, upon reflection, appear to me to clearly include:
- allegations that I was untruthful and deceitful in my Reasons;
- clear untruths about me, what I said and heard in the course of the trial, as well as the existence of evidentiary foundations supporting what I wrote in my Reasons; and
- allegations of impartiality on my part.”
It is on this basis that the trial judge decided, on his own motion to consider whether to recuse himself.
In his reasons, the trial judge observed that “[c]ounsel on each side in the appellate court is free to make whatever arguments they wish, including claiming or denying support in the record, the use of emphasis and spin, or even trying to argue a case it thinks it can win instead of the case it has. That is all of counsel’s choosing…” That said, the trial judge did not leave it for the appellate court to decide whether the appellant’s “emphasis and spin” had merit such that the appeal must be allowed. And, for purposes of the recusal motion, the trial judge considered and addressed several of the grounds of appeal advanced by the appellant and it is in this portion of the reasons that the apparent division between the appellant and appellant’s counsel, and the trial judge becomes unfortunate.
To illustrate, under the heading “Where it Appears That the Appellant States in its Factum Untruthful Things About the Trial Judge”, the trial judge referred to the appellant’s factum in which it was pleaded that “the Trial Judge discarded the case pleaded and argued by the parties and decided the appeal on grounds that were not raised in the pleadings or argued at trial, but made their first appearance in the Trial Judge’s Reasons well after the trial was over.”
The trial judge addressed this as follows:
It appears very clear to me that, while the Appellant may have every right to seek to challenge the evidentiary foundation of my conclusions and findings, they have simply told clear untruths about me and what I did or did not say when they state that McKesson’s tax motivation was not ever put to them during the trial and that they were therefore deprived of any opportunity to address it. (Emphasis added)
The trial judge used similarly strong language as he addressed other arguments advanced by the appellant. For example, in response to whether the trial judge addressed a particular issue in the course of the trial, the trial judge wrote: “One can read what they will into the Appellant’s decision not to argue the point or conduct redirect examination, but it appears to me to be patently untrue that I did not raise it with the Appellant early, at times when they could respond with additional evidence, with a summary of the evidence to change my impression, or with whatever legal argument they chose.” (Emphasis added)
Further, and similarly: “For the Appellant to state in their Factum that I am the one who raised these issues, without them ever being raised at the trial, and that I raised them independently for the first time in my Reasons,appears to me to be the Appellant again telling clear untruths about me.” (Emphasis added)
In a separate section, the trial judge concluded that the appellant’s factum was “deliberately misleading” and “inherently and demonstrably untrue”. “I believe the Appellant was telling untruths about me that go beyond the appellate advocacy craft of colour, spin and innuendo.”
The trial judge concluded that on the basis of the “public allegations” raised by the appellant, “I am unable to decide the remaining matters impartially.”
In his concluding remarks, the trial judge addressed the personal attack which he perceived had taken place against him:
Canadians should rightly expect their trial judges to have broad shoulders and thick skins when a losing party appeals their decision, but I do not believe Canadians think that should extend to accusations of dishonesty by the judge, nor to untruths about the judge. Trial judges should not have to defend their honour and integrity from such inappropriate attacks. English is a very rich language; the Appellant and its counsel could have forcefully advanced their chosen grounds for appeal without the use of unqualified extreme statements which attack the personal or professional integrity of the trial judge.
Within the law governing the circumstances under which a judge must recuse him or herself, there is a presumption that members of the judiciary are impartial and it is a presumption that is not easily set aside. The test as characterized by one court is to ask: “What would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude?”
The McKesson case will almost certainly prompt discussion and debate within the legal community and it might be that the community will one day have the benefit of the wisdom and guidance that might flow from the decision of an appellate court. Until then, informed, reasonable and right-minded people will likely view it as altogether unfortunate that the appellate advocacy of senior and respected counsel has caused a senior and respected trial judge to find that he has been accused of dishonesty, and in so finding, to also conclude that statements which are untrue have been made against him. For the parties to the litigation who hope to have the legal issues addressed and resolved, for the legal community which is generally close knit and collegial, and for the public who is looking in, this is unfortunate indeed.