852 THE ADVOCATE
VOL. 77 PART 6 NOVEMBER 2019
Is a “Real Danger” the Same as a “Real Possibility” or “Suspicion”?
The House of Lords in Porter took some pains to eschew the language of a
“real danger” test, preferring a “real possibility” test. In Canada, confusion has
resulted from different formulations of the “reasonable apprehension” test.
Courts in Canada and England have referred to the “reasonable suspicion”
test, the “real likelihood” test, the “real possibility” test and the “real danger”
test. However, there is some suggestion in the Supreme Court of Canada that
there is no meaningful difference between the various tests. In R. v. S. (R.D.),28
Major J., writing for Lamer C.J. and Sopinka J., in dissent, said:
The test for finding a reasonable apprehension of bias has challenged
courts in the past. It is interchangeably expressed as a “real danger of
bias,” a “real likelihood of bias,” a “reasonable suspicion of bias” and in
several other ways. An attempt at a new definition will not change the
The view of Major J. regarding the interchangeability of the tests was
accepted by Iacobucci, Binnie and LeBel JJ. in Burke.30 Thus, six justices of
the Supreme Court of Canada have accepted the dictum of Major J., and it
is reasonable to conclude that the terms “real danger” of bias and “reasonable
suspicion” of bias may be used interchangeably in Canada.
The decided cases do not confront the elephant in the room. How can a
“real likelihood” of bias be the same as a “real possibility” of bias or a “reasonable
suspicion” of bias? Canadian lawyers have been trained to treat a
possibility (or suspicion) and a probability (or likelihood) as different. In
most contexts a probability requires a preponderance of evidence, a prima
facie case or a likelihood of over fifty per cent. A possibility or a suspicion,
however, can be anything down to the most minimal probability. The
Supreme Court of Canada, at least in the context of discussing the test for a
reasonable apprehension of bias, seems prepared to equate a “real suspicion”
with a “real probability” or a “real danger”. It is a curious result that a
judge deciding a challenge for bias may apply either a “reasonable suspicion”
test or a “real likelihood” test and that both are essentially equivalent
to a “real danger” test.
What has given rise to this evolution in the treatment of the test for bias
by the Supreme Court? There is certainly a public policy trend toward maintaining
the integrity of the judicial process by limiting challenges for bias.
There is also a recent trend to promote alacrity and finality, especially in
arbitration cases, as seen in Sattva Capital Corp. v. Creston Moly Corp.31 In
that case, rights of appeal in domestic arbitration were confined to pure
questions of law, and a reasonableness standard rather than a correctness
standard was applied to arbitrator rulings on most questions of law. What is