Legal Principles Governing the Disqualification of Judges

Abstract

This is the seventh, substantially revised and updated version of a paper that was presented originally to the National Judicial Institute Continuing Education Seminar for Appellate Judges held in Vancouver on April 10, 2002. The original paper was published by Professor Bryden in (2003), 83 Canadian Bar Rev. 556. Beginning with a review of a number of leading Canadian and other common law decisions on judicial disqualification, we explore the implications of the divergent strands of thinking that emerge in the jurisprudence to improve our understanding of the Canadian jurisprudence and then move to a discussion of the substantive rules governing judicial disqualification in six categories of cases. We argue that the conceptual tools we use in addressing issues of judicial impartiality tend to fail us precisely in the analytically marginal cases where, based on the jurisprudence or policy, plausible arguments could be advanced for suggesting both that a judge should or should not be disqualified. This uncertainty puts pressure on judges to recuse themselves in marginal situations in which it would be better from the standpoint of the efficient administration of justice for them to sit.

Keywords: judicial ethics, disqualification, recusal, Canada