Manitoba Court of Appeal: “A Court of Appeal hearing is not a tea party”

Justice Monnin of the Court of Appeal of Manitoba recently commented on the appropriateness of appellate judges taking an active role during appeal hearings. In R v. Van Wissen, 2018 MBCA 100, the accused sought an order for Justice Monnin to recuse himself from the appeal panel, citing an exchange with counsel in which Justice Monnin expressed his views on the weaknesses of one argument. In denying the motion, Justice Monnin held that the impugned exchange did not warrant recusal and was consistent with the cut-and-thrust typical of appellate hearings. As Justice Monnin wrote, and as seasoned appeal counsel understand, a “Court of Appeal hearing is not a tea party.”

Conduct of an appeal hearing

Justice Monnin was a member of the panel that heard the accused’s appeal from his first degree murder conviction. During the hearing, the accused’s counsel argued that interference by the trial judge undermined the fairness of the trial. Justice Monnin, having read the full transcript from the trial prior to the appeal hearing, expressed his views to counsel on the weaknesses of that argument.

The full exchange, in context, is reproduced in Justice Monnin’s reasons dismissing the recusal motion.  Although Justice Monnin acknowledged that he used “strong language” with counsel, the impugned part of the exchange amounts to little more than one member of the panel expressing his views, based on his pre-hearing preparation, on one particular ground of appeal. Justice Monnin in no way foreclosed counsel from pressing that argument orally.

Justice Monnin affirmed that appellate judges may, and ought to, engage with counsel and challenge the strength of their arguments during oral submissions. Justice Monnin explained that:

[16] Unlike trial courts, where judges typically do not descend into the arena, appellate court judges are expected to enter the fray and challenge counsel and the validity of the arguments being advanced.  It is appropriate for appellate court judges to play an active role in the appeal hearing.  Appellate courts have the benefit of considering all of the arguments pertaining to the grounds of appeal before the appeal hearing. This provides appellate court judges with the opportunity to let counsel know the areas where there are concerns and to give counsel the opportunity to address those concerns.

[17] My role as an appellate court judge is to deal with the issues in a fair and reasonable manner.  That role, however, does not prevent me from expressing my view on any particular ground of appeal for fear of being accused of bias, even if it is to state that, in my view, that particular ground has little or no merit.  I did so in this case.

This is certainly our experience with appeal hearings across the country, and we would have it no other way. Counsel and their clients are the beneficiaries when appellate judges take an active role and express their concerns with arguments during the course of the hearing. This gives counsel the opportunity to address those concerns or refocus on better arguments with more traction. If appeal judges surfaced their concerns only for the first time in the reasons, counsel loses this opportunity.

Delay in bringing the recusal motion

As a subsidiary point of appellate practice, in the exceedingly rare circumstances where a recusal motion is appropriate based on the conduct of an appeal, it must be brought expeditiously. In Van Wissen, the accused delayed nearly three months after the hearing to seek recusal, and Justice Monnin would have dismissed the motion on that ground alone. Recusal motions must be brought with “reasonable promptness”, and where the alleged ground for recusal relates to a judge’s questioning during the appeal hearing, counsel ought to have acted with dispatch after the hearing.

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Sopinka and Gelowitz on the Conduct of an Appeal, 4th Edition

Appellate litigators and judges have turned to Sopinka and Gelowitz on the Conduct of an Appeal for guidance since its first publication in 1993. Now in its fourth edition, this authoritative text remains the go-to resource for both novice and seasoned litigators seeking direction on best practices in preparing and presenting appeals. Originally written by former Supreme Court of Canada Justice John Sopinka and Osler partner and litigator Mark Gelowitz, this latest edition adds Osler’s David Rankin as co-author. This up-to-date version is the most current textbook available on appellate practice in Canada and is invaluable for lawyers looking to avoid costly errors while gaining a deep understanding of the procedural and jurisdictional aspects of launching and conducting appeals.

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