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Refining the Reasonable Apprehension of Bias Test: Providing Judges Better Tools for Addressing Judicial Disqualification
Jula Hughes & Philip Bryden
36:1 Dalhousie Law Journal (2013) 171-192
The “reasonable apprehension of bias” test for judicial disqualification has been a fixture of Canadian law for many years, at a minimum since its formulation in the National Energy Board case in 1978. By that time, the Supreme Court of Canada was able to draw on a long history of Canadian and other common law precedents in support of identically or similarly framed tests for determining judicial impartiality. Despite a considerable amount of litigation concerning judicial impartiality since that time, the test itself 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.
Our experience as facilitators in judicial education seminars over the years led us to believe that judges often have very different views about how the “reasonable apprehension of bias” test should be applied. In particular, we noticed that even when the case law indicated that it was not necessary for a judge to recuse himself or herself in a particular situation, it was quite common for judges participating in seminars to suggest that the application of the general reasonable apprehension of bias test would lead them to a different conclusion. We hypothesized that these differences of opinion might not appear in the reported case law because in many instances judges recuse themselves of their own motion, with the result that the case law significantly under-reports the incidence of recusal. With the assistance of the Canadian Association of Provincial Court Judges, we sought to develop a better understanding of how judges think about recusal and disqualification by conducting a survey of 137 Canadian provincial and territorial judges concerning their experience of and attitudes toward recusal in analytically marginal cases. . . .
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II. Why should we care about variability in the application of the reasonable apprehension of bias test?
A person who was skeptical about modifying the “reasonable apprehension of bias” test might well argue that there is nothing special about judges having differences of opinion in marginal cases. What makes a case marginal, after all, is our ability to make plausible arguments for or against a particular result. The use of a “reasonableness” standard implies a requirement that a range of considerations will come into play in different contexts, and over time the common law method has allowed judges using the “reasonableness” standard to develop a coherent jurisprudence in a variety of different areas of the law. Why, the skeptic might ask, should the law with respect to judicial impartiality be any different?
We offer two responses to the skeptic’s query. One is to observe that refinement of the tests judges use to make decisions is an important part of the common law method. If we are able to refine the reasonable apprehension of bias test in a manner that helps to explain the jurisprudence, and make it more coherent and easier for judges to apply consistently, even a skeptic ought to agree that the effort is worthwhile. We would argue that the level of disagreement among judges concerning the application of the test in marginal cases that we have identified suggests that there is considerable room for improvement. We acknowledge that we still need to demonstrate to the skeptic that we have succeeded in our attempt to improve upon the “reasonable apprehension of bias” test.
The second response is that disagreements about whether judges should or should not recuse themselves have a meaningful impact on the administration of justice, and any improvement we can offer in this area will benefit both the judges and the members of the public who use our court system. The point of departure for this argument is that recusal is sufficiently frequent to have an impact on the effective and efficient administration of justice. As we noted above, in “Tip of the Iceberg,” two- thirds of our respondents indicated that they would recuse themselves between one and five times in a typical year. Another nineteen per cent reported recusing more than five times a year. Only fourteen per cent indicated that they would not recuse themselves at all in a typical year.
The reported case law on recusal, while extensive, does not begin to reflect the actual scope of recusal as the vast majority of recusal decisions are made by judges on their own motion. This was true for the respondents to our survey, and judging from comments of participants at judicial education seminars, it is true for judges at all levels of Canadian courts. It is difficult to estimate the global impact of recusal on the administration of justice as the degree of disruption to the work schedule of the court will vary depending on the stage in the proceedings at which recusal takes place, the context in which the judge works, and the particularities of the case. The same factors will influence the extent to which recusal has an impact on the parties. In most instances a decision not to sit taken prior to the docket being finalized has a very different impact on the parties than a decision to recuse half-way through a trial. The practical consequences for the parties of the recusal of the sole judge in a small town or a judge on circuit are likely to be different than the impact of recusal by a judge in a major centre. The inherent delay that attends many recusal decisions may affect one party more than the other. Similarly, delay in some types of proceedings may have more serious consequences for the parties than in other situations.
Our research also suggests that judges recuse in some marginal situations where jurisprudence and/or policy would suggest that they should not recuse. This may be because judges are apprehensive about appellate treatment or because they do not wish to sit when a party has expressed a lack of confidence in their impartiality. Our research further indicates that certain types of situations are subject to a great deal of uncertainty and disagreement between judges. Greater clarity would likely promote efficiency by avoiding unnecessary recusals. It would also enhance the transparency of judicial practice with respect to recusal and would encourage consistency.
1. Committee for Justice and Liberty et al v National Energy Board et al,  1 SCR 369 at 394 [National Energy Board]. It is worth noting that the National Energy Board case itself did not involve the disqualification of a judge but the disqualification of a member of an administrative tribunal. The Nation Energy Board test is, however, employed in the leading Supreme Court of Canada decisions involving challenges to the impartiality of judges. See, for example, Wewaykum Indian Band v Canada, 2003 SCC 45,  2 SCR 259 at para 60 [Wewaykum]; R v RDS,  3 SCR 484 at para 31, per L’Heureux-Dubé and McLachlin JJ; and para 111, per Cory J.
2. Lorne Sossin has observed that “[t]he law in Canada relating to judicial bias is at once clear and unsettled. It is clear because for purposes both of legal and ethical accountability, the standard of impartiality which has been adopted, that of reasonable apprehension of bias, has found widespread acceptance. It is unsettled because the application of that standard remains very much in flux”: “Judges, Bias and Recusal in Canada” in Hoong Phun Lee, ed, Judiciaries in Comparative Perspective (Cambridge: Cambridge University Press, 2011) 301 at 321.
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12. Familiar examples include the reasonable person standard of care in negligence law and the reasonable person standard in the law of self-defence in criminal law. See, for example, Arland v Taylor,  OR 131 (CA); R v Cinous,  2 SCR 3; and R v Lavallee,  1 SCR 852.
13. Bryden & Hughes, “Tip of the Iceberg,” supra note 3 at 576-577.
14, Ibid at 572.
15. Ibid at 584-585 and 604-608.
16. There is a significant strand of American thinking on judicial disqualification that favours peremptory challenges where a party subjectively believes that a judge will not be impartial. See Charles Geyh, “Draft Report of the ABA Judicial Disqualification Project” (2008), online: at 60-65; James Sample & Michael Young, “Invigorating Judicial Disqualification: Ten Potential Reforms” (2008) 92 Judicature 26 at 27-28; Debra Lyn Bassett, “Judicial Disqualification in the Federal Appellate Courts” (2002) 87 Iowa Law Review 1213 at 1224 and 1251-1256; Richard Flamm, Judicial Disqualification: Recusals and Disqualification of Judges, 2d ed (Berkeley, CA: Banks and Jordan Law, 2007) at § 26.1.
17. Bryden & Hughes, “Tip of the Iceberg,” supra note 3 at 579-582.