(Very) traditionally, judges were meant to be heard — only in the courtroom. One of the questions those interested in becoming a judge had to ask themselves was whether they were prepared to become “monks” (the masculine being almost entirely appropriate). Justice John Sopinka famously challenged this notion, pointing out that there were no legal restraints on judges. This is so, although the ethical principles formulated by the Canadian Judicial Council emphasize that judges should avoid controversy, among other things.
A report by the CJC about a complaint that a Quebec judge spoke out of turn to a journalist referred to “the duty to act in a reserved manner“. And there have been many inquiries by the CJC relating to conduct by judges who strayed too far, in someone’s opinion, into the public arena; most recently, the CJC considered the complaint made by its own executive director about Justice Patrick Smith who accepted the position of Interim Dean (Academic) at the Bora Laskin Faculty of Law. (I have written about this decision here.)
Judges today may be accompanied by a history, not only of their previous judgements, but of their tweets and other social media commentary, along with articles and speeches about the sometimes controversial issues of the day. Presumably, as did party politics (supposedly?) cease in earlier days, so does this engagement with this aspect of their life, once the judge is appointed. Nevertheless, the scope of public comments may be quite broad and judges are sometimes outspoken about particular issues (for example, former Chief Justice McLachlin’s comment about “cultural genocide” in a speech delivered to the Global Centre for Pluralism in 2015 (a link to this speech does not appear on the Supreme Court website). Some judges, such as Justice Rosalie Silberman Abella, appear in public often, speaking firmly on issues that are generally accepted in some quarters, perhaps less so in others such as equality (and the lack of it) without apparent difficulty. However, the scope of public activities appears less broad. Yet today judges are appointed from a wider variety of backgrounds, experiences and public involvement than used to be the case and are asked to discuss these in their applications. This raises the question of whether it is realistic to expect that judges will disassociate themselves from the very activities that might have been a factor in their appointments in the first place.
Currently, the Ontario Judicial Council is considering a complaint about Justice Donald McLeod and his involvement, while a judge, with, as the complaint describes it, “a national, non-profit organization that meets with government representatives to advocate for legal and social reform on behalf of Black Canadians”, illustrating how judges may have to restrict their activities. But should we be reconsidering the latitude of judicial conduct.
No one seems to be questioning Justice McLeod’s personal ethics, but rather, how he expresses his commitment to the African-Canadian community. Justice McLeod is himself a Black judge and the announcement of his appointment in 2013 recounted his various community contributions in support of youth and a mentoring program for African-Canadian law students and young lawyers.
In 2016, Justice McLeod founded the Federation of Black Canadians and became the public face of the organization, meeting with politicians to seek support for programs to address the crisis facing Black youth. I raise this case not to discuss it particularly, but because it represents a situation in which someone with authority — the judicial sphere — is willing to use his resources and his reputation to work for those he perceives need help. He is prepared to be an advocate for those he hopes can benefit from it. In just about any other situation, this would be seen as admirable (just as Justice Smith’s willingness to step in to help the Bora Laskin Faculty of Law would be seen as admirable). Being a judge makes this more complicated.
There are those who see such conduct as enhancing the reputation of the judiciary, of showing that judges can respond to social ills or other difficulties faced by important community organizations and (in conduct such as that of Justice McLeod) of evincing an understanding of what at least some of those who become embroiled in the justice system experience. For others, however, such contributions to the community may be seen as contravening their “duty to act in a reserved manner”, as risking their impartiality and independence, as bringing the judiciary into disrepute. Should it be enough that one trades one’s ability to contribute directly to the community for the opportunity to have an impact as a judge, still bringing one’s experience and life knowledge to bear?
I suggest we need a broad-based discussion about the role of judges in the broader community. It is easy to say that judges should limit themselves to judging moots (of course, possibly judges may say something even then that indicate a view on matter that might come before them), possibly teaching classes (but it hard to avoid at least implying one’s views on the topics at hand) or giving anodyne speeches on the rule of law or importance of judicial independence (what contentious views might be hidden beneath the surface of those subjects?). The real risk, apart from conduct that is clearly political or biased in some way, in short, conduct that makes a mockery of the judiciary or threatens its institutional independence, is that the judge will be in conflict with one of the parties before him or her because of the judge’s extra-judicial activities. This can be addressed in a particular case. In a broader sense, a judge’s activities may raise questions about whether he or she will be predisposed to be too “sympathetic” or “hostile” to a particular class of litigant.
This latter is harder to address. Increasingly, however, at least some judges will be selected from people who have been active in their communities or more generally in pursuit of particular social or political goals. As I mentioned before, it will become increasingly more common for judicial applicants to have publicly expressed their views one way or another on a range of issues, some of which may come before them. Is there any reason that we cannot expect them to have the capacity to assess disputes before them impartially, just as we expected party workers to do the same? Or, put another way, haven’t we long recognized that no one comes to the bench without predispositions developed throughout their life?
The difference, perhaps, is that it is the less advantaged now who will more and more see members of their communities on the bench than it might have been in the past. Does it add to or detract from the reputation of the judiciary for them to know that there are judges who know something of what their lives, or the lives of many of them, are like? It has been almost 20 years since Justice Bertha Wilson, while still sitting on the Supreme Court of Canada, wrote “Will Women Judges Really Make a Difference?“. She reviewed the meaning of impartiality and the desirability of impartiality, but then explained the impact women judges could have on their colleagues and on bringing different perspectives to bear on matters before the court. She did not, it need be said, advocate that activist women continue their activism or extra-judicial advocacy after appointment. It should also be said, if memory serves correctly, that the article was viewed by some as controversial. As courts slowly become more diverse, her comments remain apposite.
It may be that the “rules” that are currently in place restricting judges’ activity are the right ones. There has been sufficient change in how we view both the process of judging and who are legitimate holders of the judicial officer that we undertake a dialogue about what is and is not permissible judicial activity beyond the courtroom.