Dalhousie Law Journal


litigation, impartiality, Canada, reasonable apprehension bias, judicial disqualification, jurisprudence, judges, marginal cases


Despite a considerable amount of litigation concerning judicial impartiality, the Canadian "reasonable apprehension of bias" test for judicial disqualification has remained fundamentally unaltered and is well accepted in the jurisprudence. Unfortunately, the application of the test continues to generate difficulties for judges who need to use it to make decisions in marginal cases. Based on previously published doctrinal and empirical research, the goal in the present contribution is to suggest modifications to the test that will better explain the existing jurisprudence and make it easier for judges to understand when recusal is or is not necessary in marginal cases. The authors consider first the advantages of the existing test and suggest that in order to be useful, any refinement to the test must, to the greatest extent possible, preserve those advantages. Second, the authors explain why inconsistent application of the test in marginal cases is a concern. Third, they analyze the ways in which the existing test, and the jurisprudence explaining and applying it, are problematic. Fourth, the authors propose a modification to the "reasonable apprehension of bias" test that is designed to address these shortcomings while preserving the key advantages of the existing test.

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