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

47 Pages Posted: 19 Mar 2013

See all articles by Philip Bryden

Philip Bryden

University of Alberta - Faculty of Law

Jula Hughes

Lakehead University

Date Written: March 12, 2011

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.

Keywords: disqualification, recusal, judges, judicial ethics, empirical

Suggested Citation

Bryden, Philip and Hughes, Jula, The Tip of the Iceberg: A Survey of the Philosophy and Practice of Canadian Provincial and Territorial Judges Concerning Judicial Disqualification (March 12, 2011). Alberta Law Review, Vol. 48:3, 569-613, 2011, Available at SSRN: https://ssrn.com/abstract=2231992

Philip Bryden

University of Alberta - Faculty of Law ( email )

Law Centre (111 - 89 Ave)
Edmonton, Alberta T6G 2H5
Canada

Jula Hughes (Contact Author)

Lakehead University ( email )

Canada

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