Open AccessThe Tip of the Iceberg: A Survey of the Philosophy and Practice of Canadian Provincial and Territorial Judges Concerning Judicial Disqualification
Author(s) -
Philip Bryden,
Jula Hughes
Publication year - 2011
Publication title -
alberta law review
Language(s) - English
Resource type - Journals
eISSN - 1925-8356
pISSN - 0002-4821
DOI - 10.29173/alr144
Subject(s) - apprehension , divergence (linguistics) , law , test (biology) , situated , state (computer science) , common law , political science , sociology , epistemology , ecology , mathematics , philosophy , biology , linguistics , algorithm , artificial intelligence , computer science
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.