Is the current judicial recusal process “at best, a solecism, and at worst, legally incoherent”? Justice Lee’s recent comments in McKenzie v. Cash Converters International Ltd have highlighted the practice of judges ruling on their own bias.

Impartiality and independence are essential covenants to a judge’s mandate to exercise judicial power. The effectiveness of any process seeking to avoid or remedy a breach of this covenant is therefore fundamentally important to upholding the rule of law and the public’s confidence in the administration of justice. However, the current process of challenging impartiality and independence by way of applying for judicial recusal is unsatisfactory and can be infected by judicial bias.

Judicial recusal is the act of abstaining from exercising judicial powers. If a fair-minded lay observer might reasonably apprehend that a judge may not be impartial, or if the judge in fact cannot be impartial, that judge has a responsibility to recuse themselves. While a clear conflict of interest will usually be identified before a judge is allocated a proceeding, a lack of impartiality can also arise due to beliefs, experiences and prejudice, in the sense of a preconceived opinion.

When a party believes a judge may not be impartial, the party applies to the judge whose disqualification is sought and that judge makes the decision on whether there is an apprehension of bias. In practice, an unsuccessful application serves as an awkward reminder that the integrity of the judge is in doubt – damaging the relationship between judge and counsel and potentially amplifying any original bias to the contrary of the desired effect.

Oct-Dec 2019 issue

Clifford Chance