Judges and politics don’t mix. Political involvement by sitting judges is an accepted taboo. Political involvement by former judges is a relatively recent development. But as the political candidacy of former Chief Judge of the B.C. Provincial Court Carol Baird Ellan is showing, there is a serious danger of political blowback against the bench as an institution when one exchanges her black judicial robes for the Blue, Red or Orange colours of a political party.
The Progressive Conservative Party is running an attack ad targeting the NDP’s so-called “star candidate”. The ad is found at www.youbethejudge.ca and says:
Carol Baird Ellan is a star candidate for Mulcair’s NDP.
For five years she was a member of the BC provincial court, time and time again, when serious criminals – including sex offenders – appeared before her court, she exercised her discretion to give them a lenient sentence.
Now, Ellan is helping the NDP bring their soft-on-crime approach to all of Canada.
This is precisely the sort of attack on the impartiality of the judiciary that defenders of judicial independence such as me loathe and rise to condemn. But I blame Baird Ellan and the NDP for putting a bullseye squarely on the back of the Canadian judiciary for the Tories to easily hit with a poisoned political arrow.
Ms. Baird Ellan is clearly touting her judicial experience in attempt to appeal to the electorate. The first line of her website states in bold that she is “a respected retired lawyer and judge with the experience and dedication we need in our next MP for Burnaby North—Seymour.” That probably deserves a pass but in the next line, her website states: “Carol has a track-record of breaking barriers and getting results. She was British Columbia’s first-ever female Provincial Court chief judge (2000-2005). Throughout her career, she has served in a variety of judicial roles—from tax lawyer to crown counsel.” Perhaps some readers may be able to explain it to me, but last time I checked “tax lawyer” and “crown counsel” were not “judicial roles”. By promoting her “judicial experience”, Ms. Baird Ellan and the NDP have made her track record fair game for questioning. Moreover, her website specifically references actions that she took as Chief Judge (“fighting the closure of B.C. courthouses”).
Baird Ellan is not the first former judge step down from the bench and run for political office. In the 1960s, Claude Wagner – the father of current Supreme Court justice Richard Wagner – was a judge, then a Quebec politician and cabinet minister, then after losing the Quebec Liberal leadership to Robert Bourassa in 1970, Wagner returned to the bench but then stepped down from the bench again to enter federal politics as a Conservative. More recently, Wally Oppal left the B.C. Court of Appeal in 2005 to run for Gordon Campbell’s Liberals and became Attorney General. Am I missing others?
When former politicians are appointed to the bench, they are expected to sever all partisan ties. Yet, members of the public often express skepticism as has most recently been expressed over the appointment of former Tory cabinet minister Vic Toews to the Manitoba Court of Queen’s Bench. But judges entering politics is a much bigger problem than former politicians becoming judges.
Public confidence in the impartial adjudication of disputes by an independent judiciary is the Canadian judiciary’s most valuable commodity. It is zealously defended by the judiciary and the legal profession against all perceived incursions. But sometimes the actions of individual judges or former judges harm the Canadian judiciary’s “brand” as independent.
There are precious few restrictions on the activities of former judges. Stephen Pitel and Will Bortolin have written on “Revising Canada’s Ethical Rules for Judges Returning to Practice”. The social contract used to be that judges were appointed for life until mandatory retirement at age 75, received a generous pension upon retirement at or before 75 and enjoyed a quiet retirement. This is no longer the case.
When judges become politicians, members of the public may rightly wonder if they were not simply “politicians in robes” while they were on the bench. This not only impairs the perception of the individual judge’s career on the bench, but can cause members of the public to wonder about judges in general. Judges should steer clear of politics not only while they are on the bench, but after they leave the bench as well.