Biased Impartiality: A Survey of Post-Rds Caselaw on Bias, Race and Indigeneity

Forthcoming 99:2/3 Canadian Bar Review 2021

29 Pages Posted: 2 Mar 2021

See all articles by Sujith Xavier

Sujith Xavier

University of Windsor - Faculty of Law

Date Written: January 8, 2021

Abstract

Based on an empirical review of post-RDS caselaw, I argue that there is a demonstrable colour blindness within the existing jurisprudence on judicial impartiality. I illustrate this colour blind approach through two arguments. The first argument is based on the evidence needed to pierce the veil of judicial impartiality. A large number of the cases surveyed illustrate the propensity of decision makers to deny recusal arguments based on the cogency of the evidence. In these cases of colour blind decision making, the presented evidence was deemed insufficient to warrant piercing the veil of judicial impartiality. The second argument focuses on judges that adopt an antiracist perspective. When judges have relied on social science evidence to engage in contextual and antiracist judging, they have been policed and their decisions overturned by supervisory and appellate courts.

Keywords: RDS, Race, reasonable apprehension of bias, predisposition to an outcome

JEL Classification: K19, K23

Suggested Citation

Xavier, Sujith, Biased Impartiality: A Survey of Post-Rds Caselaw on Bias, Race and Indigeneity (January 8, 2021). Forthcoming 99:2/3 Canadian Bar Review 2021, Available at SSRN: https://ssrn.com/abstract=3762594 or http://dx.doi.org/10.2139/ssrn.3762594

Sujith Xavier (Contact Author)

University of Windsor - Faculty of Law ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4
Canada

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