Robin Browne is no stranger to fighting institutional racial bias. He’s been doing so inside workplaces, city council chambers, committee meetings, and courtrooms for years.
His latest chapter in this fight came earlier this summer in a defamation case he brought against co-founders of the Federation of Black Canadians (FBC) in 2020.
The FBC co-founders counter-sued Browne also for defamation, but Browne felt that he had case law, and the truth, on his side. However, he felt his chances of succeeding were undermined from the start when he found out who his judge was.
As stated, Browne is no stranger to fighting bias and racism in the courtroom. In 2020, Browne was involved in an incident where a 10yr-old Black boy was racially harassed by two white boys, one of whom allegedly assaulted him.
Browne made several public statements in support of the Black boy and his family and found himself named in a counter defamation suit by the parents of the white child who allegedly assaulted the Black child.
When Browne’s small-claims proceeding with the Federation of Black Canadians began, he discovered that the judge in that case, Deputy Judge Ian R. Stauffer was listed as the lead lawyer in the other case, representing the parents of the other white boy.
Browne was immediately concerned about this judge’s ability to remain unbiased against him in this current case.
“I was like, whoa this guy can’t be the judge on my trial and be the lawyer in that other case,” said Browne in an interview with rabble.ca.
Reasonable apprehension of bias
Browne emailed the court to alert them to the potential conflict of interest and was stunned to learn that the court forwarded his concern with the judge to rule on his own potential conflict. The judge replied that he was comfortable presiding over the case as he said he had no personal involvement in the case as it was handled entirely by his associate and that he understood that the file had been concluded with respect to his office’s involvement.
The trial in Browne’s defamation case, set for three days in April 2024, stretched into five days ending on August 19, 2024. On that day, Browne presented a formal motion for the judge to remove himself from the case, which the judge again declined to do. Browne’s motion argued the legal concept that the judge’s role in both cases could create a reasonable apprehension of bias on the part of the judge, in the mind of a “reasonable person”.
In declining to remove himself from the case, the judge again said it was his firm that was involved in the previous case rather than him personally and that it was his understanding that the matter involving the client his firm was representing had been resolved. However, Browne would find out that neither was true when he read the judge’s ruling – finding against Browne and awarding each defendant the maximum small claims award of $35,000 each.
Despite claiming he had no involvement in the case in both his February email to Browne and his verbal reply to Browne’s August 19 motion, in his decision, the judge said, “In open Court I told Browne quite clearly that I had had no involvement in that case, other than an initial discussion with the Defendant parents of the white child, the child who had not caused the alleged injury to the minor Black Plaintiff. After the initial interview, the file had been assigned to a junior lawyer at TSLLP.” (TSLLP is the judge’s law firm Tierny Stauffer LLP.) And regarding his claim that the file had been completed, the clients TSLLP was representing actually settled their matter one week after the judge emailed Browne.
The judge also said this in his decision:
“In the current Motion before me, I placed myself in the position of a reasonable person who was given the facts as described above. Would that person see a reasonable apprehension of bias on my part? That is, could I proceed to render Judgment in the various cases involving Mr. Browne, with any concern as to fairness in my adjudication process? All of the parties in the present set of cases before me are Black. The witnesses were all Black. The question of any bias by me, based on race, is not an issue.”
“What was really telling when I was presenting the motion is that he was interrupting me as he often did and asking ‘are you accusing me of actual bias?’” Browne explained.
“I had said already twice, I’m not arguing actual bias. I’m arguing reasonable apprehension of bias,” Browne went on to explain.
In legal terms, a judge should recuse himself if a reasonable person could have a reasonable apprehension of bias given the possible conflict of interest. That is, is there any doubt the judge could render an impartial judgment in Browne’s case.
“The question wasn’t one of racial bias on the judge’s part in my defamation case. The issue was if a reasonable person could have a reasonable apprehension of bias given the conflict of interest caused by the judge’s involvement in both cases,” said Browne, adding, “This whole concept of the reasonable person clearly is being interpreted as a reasonable white person”.
A perfect storm of judicial racial bias
Browne said there are several systemic issues which contribute to judicial racial bias. The first is the deeply held belief in the legal profession in the impartiality of judges, even regarding cases involving race, despite most judges being white. Second, is judges’ resistance to accept anti-racism training as they see such training as indoctrination by outside forces. Third, there’s no race-based data on judges’ rulings. Furthermore, unlike lawyers, judges aren’t bound by their professional rules of conduct to actively perform conflict checks to avoid presiding over trials where conflicts exist with the parties involved.
The Principles of Judicial Office for Judges of the Ontario Court of Justice simply says judges must “avoid any conflict of interest, or the appearance of any conflict of interest, in the performance of their judicial duties.” The Principles list no requirement for judges to tell the parties involved whether they’ve done a conflict check, or the result.
According to Browne, the judge’s decision is a symptom of all these issues.
Also, Browne could not find one instance on CanLii, the website that posts Canadian court deicsions, in this judge’s 20-year plus career of him handling a case that involved racial issues.
“All he appeared to hear was me calling him racist when I had never said that,” said Browne.
Another issue is that there appears to be a double standard regarding claims of bias made against white and Black judges. The Superior Court of Justice’s list of Often Cited Cases in Divisional Court includes only one case regarding an accusation of reasonable bias – against a Black judge.
Browne plans to appeal the decision but has concerns that the decisions of even more senior appeals court judges may be tainted by their racial biases for the reasons outlined above. Browne also has concerns about fairness when he and other community groups head to trial in their small claims suit against the Ottawa Police Service Board in May 2025.
Browne is also concerned about how this case could impact another essential element to the effectiveness of the justice system: the public’s faith in it.
“Why should people, especially Black people, have faith in a justice system that is so blatantly unfair,” Browne said.
Browne said this is why it’s so important for the Government of Canada to fully implement the recommendations of Canada’s Black Justice Strategy that aims to transform Canada’s justice system from “one that punishes the poorest and most marginalized members of our society, and that carries a history of racism and oppression, to one that is fair and equitable and free from discrimination; in other words, a justice system that is truly just.”
While the judge ruled against him in this case, Browne does not see this as a loss, but rather another victory in his campaign to expose anti-Black bias in Canada’s institutions.
“I get a chance now to expose this and publicize this very powerful anecdote which will support the call to mandate the collection of race-based data on judicial decisions,” said Browne. Support rabble today!
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Nick Seebruch, editor
Editor’s note: Robin Browne is a volunteer host of rabble’s webinar series Off the Hill.
