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Refining the Reasonable Apprehension of Bias Test

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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,

00:04.425 --> 00:08.405
and I became interested in the case law,

00:08.555 --> 00:11.605
governing judicial disqualification.

00:11.945 --> 00:14.365
And, I did some writing on the subject.

00:14.665 --> 00:18.805
And as a result, we were invited on a number

00:19.005 --> 00:23.925
of occasions to facilitate judicial education seminars

00:24.265 --> 00:25.845
on, disqualification.

00:26.865 --> 00:30.205
And one of the things that we noticed during these seminars

00:31.065 --> 00:33.965
was that Canadian judges were very familiar

00:34.435 --> 00:38.325
with the reasonable apprehension of bias test,

00:38.945 --> 00:43.525
but their application of the test was quite different in,

00:43.865 --> 00:47.205
many of the scenarios that we were discussing.

00:47.865 --> 00:51.485
And, we'd have judges come up to us after the session

00:51.705 --> 00:56.485
and say, well, we understand that the case law says we,

00:56.535 --> 00:59.685
don't have to disqualify ourselves in this situation,

00:59.825 --> 01:03.285
but we think that the proper application

01:03.345 --> 01:07.165
of the reasonable apprehension of bias test ought

01:07.165 --> 01:10.645
to require disqualification in this situation.

01:10.665 --> 01:12.565
And, and so that intrigued us,

01:13.265 --> 01:18.245
and we started talking to, a, a,

01:18.445 --> 01:22.565
a number of judges about, well, is, is this actually a,

01:22.805 --> 01:24.005
a common phenomenon?

01:24.705 --> 01:28.725
And, with the assistance of the Canadian Association

01:28.985 --> 01:32.685
of Provincial Court Judges, we did a survey of provincial

01:32.705 --> 01:35.485
and territorial judges across the country,

01:35.545 --> 01:39.085
and we got 137 responses, which is,

01:39.085 --> 01:43.445
which is a pretty decent, rate of response about,

01:43.785 --> 01:46.805
you know, a little over 10% of the provincial

01:46.805 --> 01:49.445
and territorial judges in the country responded

01:49.445 --> 01:53.445
to the survey, and they were dealing with a range

01:53.505 --> 01:56.685
of situations that were considered marginal,

01:56.985 --> 01:58.845
but nevertheless reasonably frequent.

01:59.025 --> 02:03.565
The, the, the scenarios were ones that, we came up with,

02:03.675 --> 02:08.205
with the assistance of a committee of, cap cj,

02:09.065 --> 02:11.925
and we discovered that in fact,

02:11.975 --> 02:14.965
there is a significant degree of variability

02:15.545 --> 02:19.965
in the application of the test by judges in these

02:20.645 --> 02:22.085
marginal situations.

02:23.025 --> 02:25.325
And so that got us thinking, well, is there something

02:25.635 --> 02:29.885
that we could suggest that would help judges,

02:30.385 --> 02:32.365
be able to understand the test better

02:32.465 --> 02:35.805
and apply it, more consistently and,

02:36.025 --> 02:38.565
and in a, perhaps a more transparent way?

02:39.105 --> 02:40.205
So the,

02:40.845 --> 02:44.245
existing test has certain important features.

02:44.425 --> 02:46.205
Um, first of all, it's, it's a

02:46.715 --> 02:50.925
very broadly used tests throughout the common law world.

02:51.505 --> 02:53.285
Um, it's very flexible.

02:53.385 --> 02:58.165
It applies to, a whole range of different situations.

02:59.305 --> 03:03.525
And it has the advantage of being,

03:04.555 --> 03:07.045
both an objective, test.

03:07.265 --> 03:09.485
One that doesn't focus on the,

03:09.485 --> 03:12.365
whether a judge subjectively believes

03:12.365 --> 03:14.325
that they are impartial or not, but,

03:14.385 --> 03:19.205
but focuses on the appearance of impartiality and,

03:19.505 --> 03:23.285
and, and how the ordinary per person looking at this

03:23.725 --> 03:27.005
situation would view the impartiality of the judge.

03:27.465 --> 03:28.765
And, and that's attractive

03:28.875 --> 03:32.525
because we actually care about the appearance

03:32.865 --> 03:34.285
of impartiality.

03:34.645 --> 03:39.445
Impartiality considered a a central feature of,

03:39.585 --> 03:41.925
a fair system of adjudication.

03:42.905 --> 03:47.205
And so we, we want people who appear to be impartial

03:47.225 --> 03:51.005
or not just saying that they're, they're impartial.

03:52.305 --> 03:57.165
And it's, it's also challenging to try to test

03:57.825 --> 04:00.365
the actual impartiality of a judge.

04:00.465 --> 04:03.125
You can't make a judge,

04:03.505 --> 04:05.885
answer questions on cross examination.

04:06.625 --> 04:11.045
Um, and, and the effort to try to,

04:11.475 --> 04:13.645
challenge the partiality

04:13.945 --> 04:18.565
or, prove the impartiality of the judge is, is

04:19.085 --> 04:20.125
terribly problematic.

04:20.265 --> 04:23.805
And so focusing on some objective perception

04:24.505 --> 04:26.085
is, very attractive.

04:26.185 --> 04:29.845
And that's why the test is used in so many jurisdictions.

04:30.145 --> 04:35.005
So the, the, difficulty with the test is

04:35.005 --> 04:37.645
that it doesn't provide much in the way

04:37.645 --> 04:40.165
of guidance in marginal situations.

04:40.675 --> 04:41.925
Well, how do you know

04:42.075 --> 04:45.565
what a reasonable person would think about this

04:45.565 --> 04:46.925
particular situation?

04:47.665 --> 04:50.445
And Canadian courts have tried to

04:51.315 --> 04:53.445
provide some assistance

04:53.665 --> 04:56.525
to judges in making this assessment.

04:56.675 --> 05:01.165
They tend to, attribute certain characteristics

05:01.425 --> 05:05.485
or certain knowledge to the reasonable person.

05:06.225 --> 05:09.405
And as, as judges in Australia and,

05:09.625 --> 05:11.605
or excuse me, in, in England and,

05:11.665 --> 05:14.925
and New Zealand have, observed,

05:15.145 --> 05:18.045
if you start imputing insider knowledge to,

05:18.385 --> 05:20.085
to the reasonable person,

05:20.085 --> 05:23.445
you're turning it from a reasonable person test into a

05:23.445 --> 05:27.525
reasonable judge or, reasonable insider test.

05:27.705 --> 05:31.285
And that, that seems, contrary to the,

05:31.505 --> 05:33.045
the general objective.

05:33.845 --> 05:35.925
Moreover, if you,

05:37.035 --> 05:41.845
attribute certain characteristics to the reasonable person,

05:42.865 --> 05:47.765
and the person who's objecting to the,

05:48.305 --> 05:50.325
the judge on the basis

05:50.585 --> 05:54.245
of a particular view doesn't share those characteristics,

05:54.675 --> 05:58.245
then you're implicitly saying that person's unreasonable.

05:59.105 --> 06:03.005
And if you're trying to reconcile 'em to the fairness

06:03.385 --> 06:07.525
of the, proceeding where the judge is going to preside,

06:07.545 --> 06:11.125
and, and by the way, in Canada, the judge whose,

06:11.205 --> 06:15.285
impartiality is challenged, decides themselves whether

06:15.305 --> 06:19.205
or not they are reasonably perceived to be impartial,

06:20.185 --> 06:21.885
you're saying to that person, well,

06:21.885 --> 06:23.205
you're being unreasonable.

06:23.545 --> 06:28.285
And, and that's not in, yula and,

06:28.305 --> 06:30.885
and in my view, terribly helpful.

06:31.785 --> 06:35.285
And so we wanted to move away from

06:36.405 --> 06:40.005
focusing on the characteristics of the reasonable person

06:40.785 --> 06:45.245
and look at some other indicators that we thought actually,

06:45.985 --> 06:48.685
were re more, more reliable indicators of

06:48.685 --> 06:50.045
how the case law comes out.

06:50.545 --> 06:54.485
Our, our approach was to take the reasonable apprehension

06:54.705 --> 06:55.765
of bias test

06:56.585 --> 07:00.325
and, say that in determining whether an apprehension

07:00.385 --> 07:02.445
of bias is reasonable,

07:03.405 --> 07:07.445
a court should balance the objective circumstances giving

07:07.595 --> 07:11.685
rise to the apprehension of bias with,

07:12.045 --> 07:14.965
explicit consideration of the,

07:15.195 --> 07:19.325
effective recusal on the, reputation

07:19.345 --> 07:22.085
of the justice system and its effective

07:22.105 --> 07:23.885
and efficient administration.

07:24.545 --> 07:29.005
And, and what that means is that in situations

07:29.495 --> 07:32.765
where the stakes are high,

07:33.415 --> 07:36.765
where the impact of,

07:37.485 --> 07:41.365
recusal on the administration of justice is relatively,

07:42.605 --> 07:46.945
limited, judges should be more willing to,

07:47.115 --> 07:48.425
disqualify themselves.

07:49.045 --> 07:53.265
But where the impact of the,

07:53.375 --> 07:58.065
case is low, where there's a perception that,

07:59.205 --> 08:01.545
disqualification application is being made

08:01.925 --> 08:03.065
for tactical reasons

08:03.205 --> 08:06.305
or where it advantages one party

08:06.945 --> 08:08.545
distinctly over another party,

08:09.285 --> 08:13.025
or where there's significant impact on the efficient

08:13.025 --> 08:16.385
administration of, of justice,

08:16.895 --> 08:20.265
then court should be more reluctant to,

08:20.755 --> 08:21.825
disqualify themselves.

08:22.165 --> 08:27.065
So to give you a concrete example, if a judge is on circuit,

08:28.155 --> 08:32.465
there is not gonna be another judge to take over that case.

08:33.365 --> 08:36.665
If, one of the parties says, well, I,

08:36.865 --> 08:37.865
I want a different judge,

08:38.685 --> 08:41.185
and so the judge should be more reluctant

08:41.245 --> 08:42.625
to disqualify themselves.

08:42.735 --> 08:44.545
Whereas if you're in a big city

08:45.285 --> 08:47.185
and it's at the beginning of a hearing

08:47.525 --> 08:50.705
and somebody doesn't want you, well,

08:50.705 --> 08:52.985
there's probably one of your colleagues next door

08:52.985 --> 08:56.085
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

09:00.645 --> 09:04.365
that case than you are in, in the circuit judge, case,

09:04.425 --> 09:08.925
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

09:28.625 --> 09:29.965
of the effective

09:29.965 --> 09:31.685
and efficient administration

09:31.685 --> 09:34.525
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,

09:44.395 --> 09:48.765
that, militate in favor of disqualification

09:48.985 --> 09:53.645
or not disqualifying, help people understand the,

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

09:55.625 --> 09:58.085
of the jurisprudence is the way it is,

09:58.185 --> 10:02.285
and that that understanding is more helpful both

10:02.425 --> 10:06.085
to litigants and counsel, and hopefully to judges as well.

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

00:24 - on, disqualification. And one of the things that we noticed during these seminars was that Canadian judges were very familiar 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

01:03 - of the reasonable apprehension of bias test ought 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, and we got 137 responses, which is,

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, and we discovered that in fact, there is a significant degree of variability

02:15 - 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? So the, existing test has certain important features. first of all, it's, it's a

02:46 - 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, whether a judge subjectively believes 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

03:23 - 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, a fair system of adjudication. 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.

04:00 - You can't make a judge, answer questions on cross examination. and, and the effort to try to, challenge the partiality 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

04:35 - that it doesn't provide much in the way of guidance in marginal situations. Well, how do you know what a reasonable person would think about this 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.

05:06 - And as, as judges in Australia and, or excuse me, in, in England and, and New Zealand have, observed, if you start imputing insider knowledge to, 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,

05:37 - attribute certain characteristics to the reasonable person, and the person who's objecting to the, the judge on the basis 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,

06:20 - you're saying to that person, well, 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. Our, our approach was to take the reasonable apprehension

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 and efficient administration. And, and what that means is that in situations

07:29 - 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, case is low, where there's a perception that, disqualification application is being made for tactical reasons or where it advantages one party

08:06 - 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, there is not gonna be another judge to take over that case. If, one of the parties says, well, I, I want a different judge, and so the judge should be more reluctant

08:41 - 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 that case than you are in, in the circuit judge, case, and particularly where, where you, you believe that there's, there's no good reason to disqualify yourself

09:11 - 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 of justice when they're making these decisions. Even if that is not the case, we think that the, the explanation that we give of the factors that,

09:44 - 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 to litigants and counsel, and hopefully to judges as well.

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