The Tip of the Iceberg: A Survey of the Philosophy and Practice of Canadian Provincial and Territorial Judges

Dean Phil Bryden (Alberta) and list member Jula Hughes (UNB) have
recently published an incredibly important article in the Alberta Law Review
(abstract below) http://www.albertalawreview.com/index.php/alr/article/view/89

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 Dodek

The Tip of the Iceberg: A Survey of the
Philosophy and Practice of Canadian Provincial and Territorial Judges
Concerning Judicial Disqualification

Philip Bryden, Jula
Hughes

 

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.

 

 

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