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denies a motion to recuse, and that there be a procedure for reviewing such a decision. Congress is working on a bill to implement these recommendations. Remarkably, Canada has no code of conduct for Supreme Court judges, or for any federally appointed judges. Adam Dodek of the University of Ottawa's law faculty, a leading commentator on legal ethics, has urged that one be adopted, but he has been a voice in the wilder- ness. The Canadian Judicial Council has put out a booklet called "Ethical Principles for Judges," but the principles it sets out are not binding ("The purpose of this document is to provide ethical guidance . . .") and they are anodyne in the extreme ("Judges must be and should appear to be impartial . . ."). The booklet says nothing at all about when a judge should recuse him or herself. Our Supreme Court itself has touched on this issue from time to time, but has added little to a largely non-existent debate. In 2002's Wewaykum Indian Band v. Canada, two Indian bands sought an order setting aside an earlier land-claims decision when it was discovered that Justice Ian Binnie, who had given reasons for the Supreme Court's unanimous deci- sion, had many years before considered the claims when he was an associate dep- uty minister of justice. The court found there to be no reasonable apprehension of bias and denied the order. In the 1999 case Arsenault-Cameron v. Prince Edward Island, the appellants sought a declara- tion of their right to have their children receive French first-language instruction at the primary level in a facility near their home. Counsel for the appellant argued that various academic writings of Justice Michel Bastarache showed he had prejudged many issues in the case, and asked that he recuse himself. Bastarache refused. The decision is available at and at Carswell_third_2_CL_Sept11.indd 1 00182DX-A26735-64368CanLawyer.indd 1 www.CANADIAN Lawyermag.com SEPTEMBER 2011 1511-08-16 10:39 AM 8/12/11 12:55 PM Why is there thought to be a "recusal problem" at the U.S. Supreme Court, but almost no one in Canada seems to care about this issue when it comes to our own court? One reason is that there have been no credible claims of bias at the Supreme Court of Canada. There has been no scandal prompting calls for change. There has been nothing like the egregious Bush v. Gore. There has been no Scalia/Wal-Mart moment. As for political bias, there is a general percep- tion that the Supreme Court of Canada is wholly apolitical. Why worry about political bias if there are no politics? But the perception that the court is apolitical is incorrect. The Supreme Court is a political institution, in the sense that it decides fundamental pub- lic policy questions. Judges are "politi- cians in robes" because they decide these public policy questions based on their worldview and personal experi- ence. I think Supreme Court judges should admit their political role, accept the public profile and scrutiny that goes with it, and not hide behind a comfort- able judicial remoteness and false view of the judging process. Some say that this approach is danger- ous. Accepting that judging is political and encouraging judges to be public person- alities will — these people say — dimin- ish the judiciary's dignity and threaten the administration of justice. This, I sup- pose, might happen in the absence of well-thought-out and carefully articulated formal constraints on what judges can do. That is the point of a judicial code of conduct. It is the missing piece of the puzzle. An appropriate code of conduct would allow judges of the Supreme Court of Canada to be more adventurous and forthright, and also protect them from misguided criticism. 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