Conflicts of Interest and Disqualification in Canada
In Canada, at least one province (Quebec) has adopted a Code of Civil Procedure which explains precisely when a judge is subject to “recusation.” Chapter V of Quebec’s Code of Civil Procedure contains nine recusation provisions (sections 234 through 242), including section 235, which states that “[a] judge is disqualified if he or his spouse is interested in the action.”
In addition, in Canada – as in the United States and the United Kingdom – a judge is subject to disqualification for an “appearance of bias.” However, in a 2003 case, Wewaykum Indian Band v. Canada, 2 S.C.R. 259, 2003 SCC 45, Canada’s Supreme Court articulated the proper test for disqualification for appearances somewhat differently than any American court ever has when it asked: “What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would this person think it more likely than not that the judge, whether consciously or unconsciously, would not decide fairly?” The Court added that “[w]hether there is a reasonable apprehension of bias is to be assessed from the point of view of a reasonable, fair minded and informed person.” Id. At 74.
As an Alberta court pointed out in a 2008 case, Boardwalk REIT LLP v. Edmonton (City), 2008 ABCA 176, “[l]ittle case law expressly discusses the appropriate procedures” for making “a disqualification motion.” Nevertheless, the Canadian “practice seems uniform. The practice is for the impugned judge (or judges) to rule on the motion that he or she (or they) withdraw from hearing or deciding the case.” see e.g. Robertson v. Edm. Police Service (#10), 2004 AB QB 519, 362 A.R. 44 (par as. 118-20); MacEwan v. Henderson , 2003 NSCA 133, 219 N.S.R. (2d) 183.
1. The Canadian Judicial Council has put out a 60 page publication entitled: “Ethical Principles for Judges”
The sixth section of pamphlet (“Impartiality”) contains a Section “E,” entitled “Conflicts of Interests,” which states: 1.“Judges should disqualify themselves in any case in which they believe they will be unable to judge impartially;” 2. “Judges should disqualify themselves in any case in which they believe that a reasonable, fair minded and informed person would have a reasoned suspicion of conflict between a judge’s personal interest (or that of a judge’s immediate family or close friends or associates) and a judge’s duty;” and 3. “Disqualification is not appropriate if: (a) the matter giving rise to the perception of a possibility of conflict is trifling or would not support a plausible argument in favour of disqualification, or (b) no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a miscarriage of justice.”
2. For a vintage (1995) Quebec case, Ruffo v. Conseil de la Magistrature case, in which the court discussed, among other things, whether “specific circumstances of case might give rise to reasonable apprehension of bias” click here
3. For a comprehensive overview of American law on the subject of recusal and disqualification which is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges (Second Edition 2007). Several Canadian law libraries which have the most recent edition of Judicial Disqualification in their collection. To locate them click here
4. The 2011 University of Alberta Law Review contains “A Survey of the Philosophy and Practice of Canadian Provincial and Territorial Judges Concerning Judicial Disqualification,” Alberta Law Review, Vol 48, No 3 (2011). Online access to this article [note: a fee is required] can be obtained by clicking here
5. For a recent (2012) Lawyers Weekly Article discussing a Canadian judge’s “failure to recuse” click here