LEGAL PRINCIPLES GOVERNING THE DISQUALIFICATION OF JUDGES

Abstract

While the Canadian law governing the disqualification of judges is steeped in English historical tradition, over the past decade divergent strands have been emerging in the decisions of Commonwealth courts when addressing the issue of judicial impartiality. This essay explores this Commonwealth jurisprudence as a way of facilitating our understanding of the Canadian law on the subject of when judges ought to disqualify themselves from adjudicating a particular dispute and when their failure to do so renders their decisions invalid. The author considers the general approach that the law takes to judicial disqualification and then discusses a number of typical problem areas in more detail. The essay concludes with a general discussion of the procedural questions that may arise when a party to litigation seeks to have a judge recuse himself or herself.