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R v RDS, Supreme Court of Canada, high threshold test, reasonable apprehension of bias, colour blindness, impartiality


The decision of the Supreme Court of Canada in R. v. R.D.S. dealt with whether a trial judge's comments, about the interactions between police officers and "non-white groups", gave rise to a reasonable apprehension of bias in the circumstances. They strongly criticize the contrary ruling of the dissent as inappropriately drawing a false dichotomy between decisions based on evidence and decisions based on evidence and decision based on generalizations, and as improperly ignoring social context with an unwarranted confidence in the ideology of colour blindness. While more supportive of the majority's analysis, the authors also find cause for concern, with somewhat different emphasis in the nature of their concerns. Although they endorse the willingness of Justices McLachlin and L'Heureux-Dube to take social context into account, the authors (Devlin more than Pothier) think there is insufficient cause expressed. Devlin is more impressed, and Pothier more troubled, by the greater caution regarding social context expressed by Cory and Iacobucci JJ. As regards the test for a reasonable apprehension of bias, Devlin is concerned that the high threshold probability test improperly isolates judges from effective accountability, whereas Pothier supports the high threshold test so as to not render complex substantive equality analysis vulnerable to the challenge of bias. Both authors endorse the acknowledgement of the majority in the Supreme Court of Canada that colour blindness is not necessarily synonymous with impartiality.

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Ottawa L Rev