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Philip Bryden discusses modifications to the the Reasonable Apprehension of Bias 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.

Image courtesy of interviewee. April 15, 2024

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This video video discusses research by authors EULA Hughes and their co-author into the law surrounding judicial disqualification, particularly focusing on the "reasonable apprehension of bias" test in Canada. They noticed a discrepancy in how judges understood and applied this test during educational seminars, prompting them to survey provincial and territorial judges. This video video survey revealed significant variability in judges' interpretations of the test in marginal situations.

The authors propose a new approach to applying the bias test by suggesting that judges balance the specific circumstances that raise concerns of bias with the implications of their recusal on the reputation and effective administration of justice. They argue that judges should disqualify themselves more readily in high-stakes situations where recusal has minimal impact on judicial efficiency, while being more reluctant in lower-stakes cases or when disqualification seems strategically advantageous to one party.

The authors call for judges to explicitly discuss these considerations when making disqualification decisions, contributing to greater understanding among litigants, counsel, and judges about the reasoning behind judicial outcomes related to bias and impartiality.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

00:00.080 --> 00:04.205
Certainly, my, co-author EULA Hughes,

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and I became interested in the case law,

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governing judicial disqualification.

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And, I did some writing on the subject.

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And as a result, we were invited on a number

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of occasions to facilitate judicial education seminars

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on, disqualification.

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And one of the things that we noticed during these seminars

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was that Canadian judges were very familiar

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with the reasonable apprehension of bias test,

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but their application of the test was quite different in,

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many of the scenarios that we were discussing.

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And, we'd have judges come up to us after the session

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and say, well, we understand that the case law says we,

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don't have to disqualify ourselves in this situation,

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but we think that the proper application

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of the reasonable apprehension of bias test ought

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to require disqualification in this situation.

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And, and so that intrigued us,

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and we started talking to, a, a,

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a number of judges about, well, is, is this actually a,

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a common phenomenon?

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And, with the assistance of the Canadian Association

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of Provincial Court Judges, we did a survey of provincial

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and territorial judges across the country,

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and we got 137 responses, which is,

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which is a pretty decent, rate of response about,

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you know, a little over 10% of the provincial

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and territorial judges in the country responded

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to the survey, and they were dealing with a range

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of situations that were considered marginal,

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but nevertheless reasonably frequent.

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The, the, the scenarios were ones that, we came up with,

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with the assistance of a committee of, cap cj,

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and we discovered that in fact,

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there is a significant degree of variability

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in the application of the test by judges in these

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marginal situations.

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And so that got us thinking, well, is there something

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that we could suggest that would help judges,

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be able to understand the test better

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and apply it, more consistently and,

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and in a, perhaps a more transparent way?

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So the,

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existing test has certain important features.

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Um, first of all, it's, it's a

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very broadly used tests throughout the common law world.

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Um, it's very flexible.

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It applies to, a whole range of different situations.

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And it has the advantage of being,

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both an objective, test.

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One that doesn't focus on the,

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whether a judge subjectively believes

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that they are impartial or not, but,

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but focuses on the appearance of impartiality and,

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and, and how the ordinary per person looking at this

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situation would view the impartiality of the judge.

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And, and that's attractive

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because we actually care about the appearance

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of impartiality.

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Impartiality considered a a central feature of,

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a fair system of adjudication.

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And so we, we want people who appear to be impartial

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or not just saying that they're, they're impartial.

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And it's, it's also challenging to try to test

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the actual impartiality of a judge.

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You can't make a judge,

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answer questions on cross examination.

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Um, and, and the effort to try to,

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challenge the partiality

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or, prove the impartiality of the judge is, is

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terribly problematic.

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And so focusing on some objective perception

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is, very attractive.

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And that's why the test is used in so many jurisdictions.

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So the, the, difficulty with the test is

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that it doesn't provide much in the way

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of guidance in marginal situations.

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Well, how do you know

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what a reasonable person would think about this

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particular situation?

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And Canadian courts have tried to

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provide some assistance

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to judges in making this assessment.

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They tend to, attribute certain characteristics

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or certain knowledge to the reasonable person.

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And as, as judges in Australia and,

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or excuse me, in, in England and,

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and New Zealand have, observed,

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if you start imputing insider knowledge to,

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to the reasonable person,

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you're turning it from a reasonable person test into a

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reasonable judge or, reasonable insider test.

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And that, that seems, contrary to the,

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the general objective.

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Moreover, if you,

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attribute certain characteristics to the reasonable person,

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and the person who's objecting to the,

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the judge on the basis

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of a particular view doesn't share those characteristics,

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then you're implicitly saying that person's unreasonable.

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And if you're trying to reconcile 'em to the fairness

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of the, proceeding where the judge is going to preside,

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and, and by the way, in Canada, the judge whose,

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impartiality is challenged, decides themselves whether

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or not they are reasonably perceived to be impartial,

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you're saying to that person, well,

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you're being unreasonable.

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And, and that's not in, yula and,

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and in my view, terribly helpful.

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And so we wanted to move away from

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focusing on the characteristics of the reasonable person

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and look at some other indicators that we thought actually,

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were re more, more reliable indicators of

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how the case law comes out.

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Our, our approach was to take the reasonable apprehension

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of bias test

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and, say that in determining whether an apprehension

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of bias is reasonable,

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a court should balance the objective circumstances giving

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rise to the apprehension of bias with,

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explicit consideration of the,

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effective recusal on the, reputation

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of the justice system and its effective

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and efficient administration.

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And, and what that means is that in situations

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where the stakes are high,

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where the impact of,

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recusal on the administration of justice is relatively,

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limited, judges should be more willing to,

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disqualify themselves.

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But where the impact of the,

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case is low, where there's a perception that,

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disqualification application is being made

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for tactical reasons

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or where it advantages one party

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distinctly over another party,

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or where there's significant impact on the efficient

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administration of, of justice,

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then court should be more reluctant to,

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disqualify themselves.

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So to give you a concrete example, if a judge is on circuit,

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there is not gonna be another judge to take over that case.

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If, one of the parties says, well, I,

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I want a different judge,

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and so the judge should be more reluctant

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to disqualify themselves.

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Whereas if you're in a big city

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and it's at the beginning of a hearing

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and somebody doesn't want you, well,

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there's probably one of your colleagues next door

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that you can switch cases with, with, and it's no big deal.

08:56.785 --> 09:00.645
And so you should be more willing to disqualify yourself in

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that case than you are in, in the circuit judge, case,

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and particularly where, where you, you believe that there's,

09:08.925 --> 09:11.765
there's no good reason to disqualify yourself

09:11.825 --> 09:13.005
in that situation.

09:13.625 --> 09:16.485
So from from our perspective, I ideally,

09:16.825 --> 09:21.525
we would see judges, using our test in,

09:21.905 --> 09:23.725
disqualification cases

09:24.345 --> 09:28.285
and explicitly talking about the considerations

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of the effective

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and efficient administration

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of justice when they're making these decisions.

09:35.355 --> 09:39.165
Even if that is not the case, we think that the,

09:39.665 --> 09:43.605
the explanation that we give of the factors that,

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that, militate in favor of disqualification

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or not disqualifying, help people understand the,

09:54.025 --> 09:55.485
the reasons that the outcome

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of the jurisprudence is the way it is,

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and that that understanding is more helpful both

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to litigants and counsel, and hopefully to judges as well.

Judicial Disqualification: Insights and Variability

00:00:00 - Certainly, my, co-author EULA Hughes, and I became interested in the case law, governing judicial disqualification. And, I did some writing on the subject. And as a result, we were invited on a number of occasions to facilitate judicial education seminars on, disqualification. And one of the things that we noticed during these seminars
00:00:34 - with the reasonable apprehension of bias test, but their application of the test was quite different in, many of the scenarios that we were discussing. And, we'd have judges come up to us after the session and say, well, we understand that the case law says we, don't have to disqualify ourselves in this situation, but we think that the proper application
00:01:07 - to require disqualification in this situation. And, and so that intrigued us, and we started talking to, a, a, a number of judges about, well, is, is this actually a, a common phenomenon? And, with the assistance of the Canadian Association of Provincial Court Judges, we did a survey of provincial and territorial judges across the country,
00:01:39 - which is a pretty decent, rate of response about, you know, a little over 10% of the provincial and territorial judges in the country responded to the survey, and they were dealing with a range of situations that were considered marginal, but nevertheless reasonably frequent. The, the, the scenarios were ones that, we came up with, with the assistance of a committee of, cap cj,
00:02:11 - there is a significant degree of variability in the application of the test by judges in these marginal situations. And so that got us thinking, well, is there something that we could suggest that would help judges, be able to understand the test better and apply it, more consistently and, and in a, perhaps a more transparent way?
00:02:40 - existing test has certain important features. first of all, it's, it's a very broadly used tests throughout the common law world. it's very flexible. It applies to, a whole range of different situations. And it has the advantage of being, both an objective, test. One that doesn't focus on the,

Challenges in Assessing Judicial Impartiality

00:03:12 - that they are impartial or not, but, but focuses on the appearance of impartiality and, and, and how the ordinary per person looking at this situation would view the impartiality of the judge. And, and that's attractive because we actually care about the appearance of impartiality. Impartiality considered a a central feature of,
00:03:42 - And so we, we want people who appear to be impartial or not just saying that they're, they're impartial. And it's, it's also challenging to try to test the actual impartiality of a judge. You can't make a judge, answer questions on cross examination. and, and the effort to try to,
00:04:13 - or, prove the impartiality of the judge is, is terribly problematic. And so focusing on some objective perception is, very attractive. And that's why the test is used in so many jurisdictions. So the, the, difficulty with the test is that it doesn't provide much in the way of guidance in marginal situations. Well, how do you know
00:04:45 - particular situation? And Canadian courts have tried to provide some assistance to judges in making this assessment. They tend to, attribute certain characteristics or certain knowledge to the reasonable person. And as, as judges in Australia and, or excuse me, in, in England and, and New Zealand have, observed,
00:05:18 - to the reasonable person, you're turning it from a reasonable person test into a reasonable judge or, reasonable insider test. And that, that seems, contrary to the, the general objective. Moreover, if you, attribute certain characteristics to the reasonable person, and the person who's objecting to the,
00:05:50 - of a particular view doesn't share those characteristics, then you're implicitly saying that person's unreasonable. And if you're trying to reconcile 'em to the fairness of the, proceeding where the judge is going to preside, and, and by the way, in Canada, the judge whose, impartiality is challenged, decides themselves whether or not they are reasonably perceived to be impartial,

Judicial Disqualification: Balancing Bias and Efficiency

00:06:21 - you're being unreasonable. And, and that's not in, yula and, and in my view, terribly helpful. And so we wanted to move away from focusing on the characteristics of the reasonable person and look at some other indicators that we thought actually, were re more, more reliable indicators of how the case law comes out.
00:06:54 - of bias test and, say that in determining whether an apprehension of bias is reasonable, a court should balance the objective circumstances giving rise to the apprehension of bias with, explicit consideration of the, effective recusal on the, reputation of the justice system and its effective
00:07:24 - And, and what that means is that in situations where the stakes are high, where the impact of, recusal on the administration of justice is relatively, limited, judges should be more willing to, disqualify themselves. But where the impact of the,
00:07:59 - disqualification application is being made for tactical reasons or where it advantages one party distinctly over another party, or where there's significant impact on the efficient administration of, of justice, then court should be more reluctant to, disqualify themselves. So to give you a concrete example, if a judge is on circuit,
00:08:33 - If, one of the parties says, well, I, I want a different judge, and so the judge should be more reluctant to disqualify themselves. Whereas if you're in a big city and it's at the beginning of a hearing and somebody doesn't want you, well, there's probably one of your colleagues next door that you can switch cases with, with, and it's no big deal. And so you should be more willing to disqualify yourself in
00:09:04 - and particularly where, where you, you believe that there's, there's no good reason to disqualify yourself in that situation. So from from our perspective, I ideally, we would see judges, using our test in, disqualification cases and explicitly talking about the considerations of the effective and efficient administration

Understanding Judicial Disqualification Factors

00:09:35 - Even if that is not the case, we think that the, the explanation that we give of the factors that, that, militate in favor of disqualification or not disqualifying, help people understand the, the reasons that the outcome of the jurisprudence is the way it is, and that that understanding is more helpful both
00:10:02 -

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