From Principles to Rules: The Case for Statutory Rules Governing Aspects of Judicial Disqualification
Osgoode Hall Law Journal, Forthcoming
56 Pages Posted: 11 Jan 2016
There are 2 versions of this paper
From Principles to Rules: The Case for Statutory Rules Governing Aspects of Judicial Disqualification
Date Written: January 9, 2016
Abstract
The Supreme Court of Canada has suggested that the principle of judicial impartiality and the attendant common law “reasonable apprehension of bias” test would be unsuited to bright line rule-making because it is highly context-specific. Nevertheless, the experience in comparator jurisdictions including the United States, Germany and the province of Quebec suggests that there may be a place for recusal rules in some circumstances. The animating reasons for urging a (modest) resort to a rule-based approach are grounded in efficiency, legitimacy and access to justice.
The current case-based approach serves Canadian law well in novel situations and in cases where only a fulsome review and careful weighing of all the facts permits a determination whether a judge should recuse. However, many situations inviting bias considerations are commonplace. Resort to case law in these situations can be problematic because the jurisprudence does not compel a particular outcome and because the jurisprudence is slanted towards explaining why a judge should sit while most decisions to recuse are invisible. Even in situations where the jurisprudence is clear, the outcome is often difficult to communicate credibly to litigants. This problem is aggravated for self-represented litigants.
In this paper, we identify four situations where rules should be employed to clarify when it is (not) appropriate for judges to sit. Rules would be of benefit to judges and the parties appearing before them as follows: (a) professional relationships with former colleagues and clients; (b) prior judicial involvement with litigants; (c) extra- judicial writings; and (d) procedure governing motions for recusal. The paper includes recommendations for rules in these four areas, justified by domestic and international experience.
Keywords: impartiality, judicial ethics, comparative, Canada, US, Germany, codification
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