The test in R. v. S. (R.D.), [1997] 3 SCR 484 provides the following comprehensive definitions;
 

Paragraph 104            
“In Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, at p. 685, Le Dain J. held that the concept of impartiality describes “a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case”. He added that “[t]he word ‘impartial’ . . . connotes absence of bias, actual or perceived”. See also R. v. Généreux, 1992 CanLII 117 (SCC), [1992] 1 S.C.R. 259, at p. 283. In a more positive sense, impartiality can be described -- perhaps somewhat inexactly -- as a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.

 

Paragraph 105            
“In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues. A helpful explanation of this concept was provided by Scalia J. in Liteky v. U.S., 114 S.Ct. 1147 (1994), at p. 1155:  The words [bias or prejudice] connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant’s prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant’s prior criminal activities that he will vote guilty regardless of the facts).  Scalia J. was careful to stress that not every favourable or unfavourable disposition attracts the label of bias or prejudice. For example, it cannot be said that those who condemn Hitler are biased or prejudiced. This unfavourable disposition is objectively justifiable -- in other words, it is not “wrongful or inappropriate”: Liteky, supra, at p. 1155.”

 

Paragraph 106           
“A similar statement of these principles is found in R. v. Bertram, [1989] O.J. No. 2123 (H.C.), in which Watt J. noted at pp. 51-52:  In common usage bias describes a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.  See also R. v. Stark, [1994] O.J. No. 406 (Gen. Div.), at para. 64; Gushman, supra, at para. 29.”

 

Paragraph 107            
“Doherty J.A. in R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), leave to appeal denied, [1994] 1 S.C.R. x, held that partiality and bias are in fact not the same thing. In addressing the question of potential partiality or bias of jurors, he noted at p. 336 that:  Partiality has both an attitudinal and behavioural component. It refers to one who has certain preconceived biases, and who will allow those biases to affect his or her verdict despite the trial safeguards designed to prevent reliance on those biases.  In demonstrating partiality, it is therefore not enough to show that a particular juror has certain beliefs, opinions or even biases. It must be demonstrated that those beliefs, opinions or biases prevent the juror (or, I would add, any other decision-maker) from setting aside any preconceptions and coming to a decision on the basis of the evidence: Parks, supra, at pp. 336-37.

How the Decision-Maker Decides to Apply Rules, Procedures, & Case Law is Indicative.

​

Per the jurisprudence in the same matter, R. v. S. (R.D.), [1997] 3 SCR 484, the focus is on the effects, and the results;

Paragraph 109
“When it is alleged that a decision-maker is not impartial, the test that must be applied is whether the particular conduct gives rise to a reasonable apprehension of bias. Idziak, supra, at p. 660.  It has long been held that actual bias need not be established.  This is so because it is usually impossible to determine whether the decision-maker approached the matter with a truly biased state of mind.  See Newfoundland Telephone, supra, at p. 636.”

 

Paragraph 110            
“It was in this context that Lord Hewart C.J. articulated the famous maxim: “[it] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”: The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259. The Crown suggested that this maxim provided a separate ground for review of Judge Sparks’ decision, and implied that the threshold for appellate intervention is lower when reviewing a decision for “appearance of justice” than for “appearance of bias”. This submission cannot be sustained. The Sussex Justices case involved an allegation of bias. The requirement that justice should be seen to be done simply means that the person alleging bias does not have to prove actual bias.  The Crown can only succeed if Judge Sparks’ reasons give rise to a reasonable apprehension of bias."

 

Paragraph 111            
“The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:  The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. . . .”
 

​Access to an Impartial Adjudicator is a Right Under Canada's Constitution.

Paragraph 92
“It is a well-established principle that all adjudicative tribunals and administrative bodies owe a duty of fairness to the parties who must appear before them.  See for example Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623, at p. 636. In order to fulfil this duty the decision-maker must be and appear to be unbiased.  The scope of this duty and the rigour with which it is applied will vary with the nature of the tribunal in question.”
 

Paragraph 93
“For very good reason it has long been determined that the courts should be held to the highest standards of impartiality.  Newfoundland Telephone, supra, at p. 638; Idziak v. Canada (Minister of Justice), 1992 CanLII 51 (SCC), [1992] 3 S.C.R. 631, at pp. 660-61. This principle was recently confirmed and emphasized by the majority in R. v. Curragh Inc., 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537, at para. 7, where it was said “[t]he right to a trial before an impartial judge is of fundamental importance to our system of justice”.  The right to trial by an impartial tribunal has been expressly enshrined by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms."

Biased Proceedings are of No Force or Effect.

Per the jurisprudence outlined in R. v. Curragh Inc., [1997] 1 S.C.R. 537;

Paragraph 92
“Anderson J. correctly recognized that both the common law and the Charter have as their goal the protection of two separate policies.  These are (1) to ensure that accused persons are given a fair trial, and (2) to preserve the reputation of the administration of justice.  A trial which violates either principle may be an abuse of process or violative of the Charter.”

Paragraph 6
“The significance of a reasonable apprehension of bias was considered by this Court in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] 1 S.C.R. 623, at p. 645:  As I have stated, it is impossible to have a fair hearing or to have procedural fairness if a reasonable apprehension of bias has been established.  If there has been a denial of a right to a fair hearing it cannot be cured by the tribunal’s subsequent decision.  A decision of a tribunal which denied the parties a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal.  Procedural fairness is an essential aspect of any hearing before a tribunal.  The damage created by apprehension of bias cannot be remedied.  The hearing, and any subsequent order resulting from it, is void.  [Emphasis added.]”

Paragraph 7
“The right to a trial before an impartial judge is of fundamental importance to our system of justice.  Should it be concluded by an appellate court that the words or actions of a trial judge have exhibited bias or demonstrated a reasonable apprehension of bias then a basic right has been breached and the exhibited bias renders the trial unfair.  Generally the decision reached and the orders made in the course of a trial that is found by a court of appeal to be unfair as a result of bias are void and unenforceable.”

Paragraph 118
“This Court recognized in O’Connor, supra, that the common law of abuse of process has been subsumed into s. 7 of the Charter.   An abuse of process can take many forms, but every finding of an abuse of process must contemplate either society’s interest in preserving the integrity of the judicial system or the individual’s interest in having a fair trial.  As is pointed out by L’Heureux‑Dubé J. in O’Connor, at p. 457, “the latter is essentially a subset of the former”.  In R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, at pp. 136‑37, Dickson C.J. adopted the proposition that an abuse of process exists where there is a violation of “those fundamental principles of justice which underlie the community’s sense of fair play and decency” or where there is an “abuse of a court’s process through oppressive or vexatious proceedings”.  This test existed at common law and remains under the Charter.  While this Court’s decision in O’Connor recognized that the finding of an abuse of process will not necessarily result in a stay of proceedings, the determination of what constitutes abuse of process remains unchanged.”

When Recourse Mechanisms are Biased and Partial, Whistleblowers are Required.

Paragraph 8 in R. v. Curragh Inc., [1997] 1 S.C.R. 537 customarily requires the overruling order of an appellate court;  
                                
“Certainly, every order of a trial court is enforceable and must be obeyed until it is declared void by an appellate court.  In this sense the order may be viewed as voidable.  However, when a court of appeal determines that the trial judge was biased or demonstrated a reasonable apprehension of bias, that finding retroactively renders all the decisions and orders made during the trial void and without effect.”
 

When no customary recourse is available, or alternatively, if it is found that the appellate court maintains the same species of partiality as the court that had rendered its ruling in error, the SCC recognized a defense of justification in Perka v. The Queen, [1984] 2 S.C.R. 232.  Perka outlines the right of a Citizen to uphold his/her rights under the Constitution at pages 235, 270, & 278;

“Where necessity is invoked as a justification, the accused must show that he operated under a conflicting legal duty which made his seemingly wrongful act right.  Such justification must be premised on a right or duty recognized by law.  This excludes conduct attempted to be justified on the ground of an ethical duty internal to the conscience of the accused as well as conduct sought to be justified on the basis of a perceived maximization of social utility resulting from it.  Rather, the conduct must stem from the accused’s duty to satisfy his legal obligations and to respect the principle of the universality of rights.  The justification therefore does not depend on the immediacy or “normative involuntariness” of the accused’s act.  Finally, the justification is not established simply by showing a conflict of legal duties.  Since the defence rests on the rightfulness of the accused’s choice of one over the other, the rule of proportionality is central to the evaluation of the justification.  [...]  The court must ask not only whether the offensive act accompanied by the requisite culpable mental state (i.e. intention, recklessness, etc.) has been established by the prosecution, but whether or not the accused acted so as to attract society’s moral outrage.  [...]  The crucial question for the justification defence is whether the accused’s act can be said to represent a furtherance of or a detraction from the principle of the universality of rights.”

Post-Democratic Conditions & the Predominance of Postmodern Beliefs Signal Change.

Post-democratic institutional frameworks are established through discretionary vetting practices over time, not dissimilar to the frog in a pot analogy.  Today’s widespread postmodern assumptions maintain there are no objective truths beyond a community-based consensus (Michel Foucault, 1976, Power/Knowledge).  The same is antagonistic to the preamble of the Constitution Act, 1982, that recognizes the supremacy of God and the rule of law (Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267 at paragraph 37).  While many commentators are observing a widespread departure from Canada's legal heritage (ie., here), there is not much discussion concerning the impact of postmodern assumptions concerning the use, purpose, and utility of adjudicative institutions in Canada, which are predominantly tailored in accordance with overarching systems of belief.  While the law often plays catch-up with new technology, it most certainly must be vigilant concerning societal change and the cultural zeitgeist (here).  Yaiguaje v. Chevron Corporation, 2017 ONCA 827 provides an analogue for such adaptation at paragraph 26(f);

 

“There is no doubt that the legal arguments asserted by the appellants are innovative and untested, especially with regard to piercing the corporate veil.  But this does not foreclose the possibility that one or more of them may eventually prevail.  That is how the common law evolves.  Innovative or novel arguments are made and the law develops, either gradually or in leaps and bounds.  For obvious reasons, substantive changes in the law usually take place in our intermediate appeal courts and at the Supreme Court. Lower courts are often bound by precedent that restrains them from changing the common law.  It is hardly just that potential advancements in or restatements of the law be thwarted for procedural or tactical reasons.”