A trial judge may sketch out draft reasons either in advance of hearing counsel’s submissions or as those submissions are being offered, so long as the trial judge remains receptive to persuasion by counsel’s submissions.

R. v. Chue [2011] O.J. No.  4149 (S.C.J.), per Nordheimer J; 

R. v. Purewal, 2014 ONSC 2198.

Given the acute time pressures on trial judges, resort to this practice may often be necessary.

No harm is created by the practice, and some practical benefit may be gained for the process as a whole, so long as it is done with considerable care for, and appreciation of, the impression it may create if it is not undertaken in an appropriate manner.

R. v. Chue [2011] O.J. No.  4149 (S.C.J.), per Nordheimer J; 

See also R. v. Purewal, 2014 ONSC 2198 (CanLII), 2014 ONSC 2198, per Durno J.

Of preeminent importance is that a judge must always keep an open mind, both in reality and in appearance. [FN]

Some measure of time should be taken by a judge to reflect on the submissions and to ensure that any draft or sketched out reasons have taken them into account. 

R. v. Chue [2011] O.J. No.  4149 (S.C.J.), per Nordheimer J.

However, there is a strong presumption that judicial officers act exclusively out of consideration for the interests of the court and the administration of justice generally (the presumption of judicial regularity).

A function of judicial independence is the ability of a judge to note and document on paper, thoughts and reflections about the evidence, law, and anything else logically connected with the judicial function of deciding a case or part of it. A trial judge has no obligation to disclose to counsel of any party his or her own notes or preliminary or draft rulings.  

R. v. Bukin, 2018 ONCJ 146.

FN: Reasonable Apprehension of Bias–Bias is a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial: The burden of establishing bias is on the party arguing that it exists. The test is well-established:  What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly?  There is a strong presumption of judicial impartiality. The threshold is high for finding an apprehension of bias: Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259; Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394.

Stuart O’Connell, O’Connell Law Group. (All rights reserved to author).