Bryden & Hughes: Judicial Disqualification

Philip Bryden and Jula Hughes,The Tip of the Iceberg: A Survey of the Philosophy and Practice of Canadian Provincial and Territorial Judges Concerning Judicial Disqualification” 48 Alberta Law Review.

Abstract

The “reasonable apprehension of bias” test for judicial disqualification has been a fixture in the common law world for centuries; despite this settled state of the law, judges and commentators have been concerned that the application of the test might be contentious in a significant number of cases. In this article, the authors report on an empirical study surveying Canadian provincial and territorial judges on common scenarios which raise the possibility of recusal. Situated in the applicable case law, the findings demonstrate a wide divergence of opinion on substance and procedure among respondents in their attitudes toward recusal in situations that are analytically marginal, but not rare. The article concludes with some possible explanations for the divergence.

The article is available here:  http://www.albertalawreview.com/index.php/alr/article/view/89

Comment from Adam Dodek:

It is the first empirical assessment of the practice of judicial recusal in Canada that I am aware of.  The results of Bryden & Hughes work raises serious issues regarding the lack of standards for judicial recusal and the lack of any clear process.  I believe that Phil & Jula plan to pursue this issue further which is good news.  I strongly recommend the article to those of you interested in bias, judicial ethics, etc. Adam

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