BIASED IMPARTIALITY

A SURVEY OF POST-RDS CASELAW ON BIAS, RACE AND INDIGENEITY

Authors

  • Sujith Xavier University of Windsor

Keywords:

Administrative law, Judicial review, Procedural Fairness, Natural Justice, Reasonable Apprehension of Bias, RDS, Judicial Impartiality, Judicial Independence, Systemic Racism, Critical Race Theory, Anti-Black racism, Anti-Indigenous racism, Antiracism

Abstract

Based on an empirical review of post-RDS caselaw, I argue that there is a demonstrable colour blindness within the existing jurisprudence on judicial impartiality. I illustrate this colour blind approach through two arguments. The first argument is based on the evidence needed to pierce the veil of judicial impartiality. A large number of the cases surveyed illustrate the propensity of decision makers to deny recusal arguments based on the cogency of the evidence. In these cases of colour blind decision making, the presented evidence was deemed insufficient to warrant piercing the veil of judicial impartiality. The second argument focuses on judges that adopt an antiracist perspective. When judges have relied on social science evidence to engage in contextual and antiracist judging, they have been policed and their decisions overturned by supervisory and appellate courts.

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Published

2021-09-02

Issue

Section

Articles