The conduct of federally-appointed judges in Canada is governed by the Judges Act and by Ethical Principles for Judges, guidelines released by the Canadian Judicial Council. The Council is responsible for addressing complaints about judicial conduct under both the legislation and the Principles. The CJC has initiated a review of the Principles and is seeking input through a survey and freestanding submissions. It has published a short background paper to assist those wishing to provide their views.
It has been 20 years since the current Principles have been in force; the CJC describes them as “relatively unchanged since [then]”. As the CJC recognizes, much else has changed since 1998, including expectations about judges’ behaviour, use of technology and social issues. This has affected the nature of appointments, the background of appointees and the nature of contributions potential judicial candidates bring to the judicial process.
Those who wish to comment may limit themselves to the survey, a series of statements to which respondents are asked to strongly agree, somewhat agree, somewhat disagree or strongly disagree. They cover most of the areas of judicial conduct that may raise concerns, and are framed in a straightforward way without nuance. For example, the first statement reads, “Judges must uphold and promote the independence, integrity, and impartiality of the judiciary.” However, it is possible explain one’s answers, thereby permitting greater reference to the complexity of some of the statements. If the CJC reports the results of the survey, presumably these comments will provide some shading to what are otherwise stark statements to which it is (in my view, at least) difficult to do anything other than click strong or somewhat agree. Having said that, the Council does not appear to have committed to releasing any results from its consultation, saying merely that “[a]fter the consultation exercise is completed, Council will summarize and consider the results”. I hope the CJC will release the results as a way of providing a broad perspective on judicial conduct, or if not, to explain why doing so would pose problems.
To assist those who intend to do more than complete the survey (or to substitute for the survey) by writing separate submissions, the Background Paper suggests “themes to consider”, which “would be incorporated in the current chapters”: social media; self-represented litigants; case anagement; settlement conferences and judicial mediation; public engagement; professional development; and post-retirement. Very brief comments accompany these themes.
Importantly, “[p]articipants will have an opportunity to provide their views on any issue that has not yet been identified but which may merit consideration by Council”. (Although not encouraged by the CJC, comments on organization and formatting might be of assistance.)
The CJC is not asking for comments about the Judges Act, perhaps appropriately so; however, the interpretation of the Judges Act by committees of inquiry investigating judges’ conduct may need reconsideration. I discussed the analysis of sections 54 and 55 of the Judges Act by the review panel responsible for assessing Justice Patrick Smitih’s decision to assume the interim deanship of the Boris Laskin Faculty of Law in Thunder Bay. The review panel also considered how Justice Smith observed — or not — the Ethical Principles. The panel’s weaving of these provisions of the Judges Act and the Ethical Principles, because of how it interpreted sections 54 and 55, raised some concerns, in my view.
Notably for a process by the CJC, I could not find a deadline for completing the survey or making submissions.
There are certain issues that require careful assessment: I note the changing nature of the judiciary, the issues that judges may need to consider and the use of technology as three, but there are, of course, others. For example, one of the others upon which comment is requested is post-retirement issues. One of these is whether judges should be allowed to practice law. Amy Salyzyn has discussed whether retired Supreme Court of Canada judges should be allowed to practice in a recent Slaw post that might be helpful for those who are considering commenting on this issue.
First, on the background of judges: as the bench diversifies, bringing a wider variety of background experiences to bear, judges are bringing and will bring a more activist inclination. The kinds of “extrajudicial” contributions they have made in the past and continue to make, such as sitting on boards of law commissions or undertaking, at governments’ requests, inquiries into matters in the public interest, teaching courses or speaking on panels related to legal matters. and other “traditional” activities, important though these are, may seem inadequate. The lengthy commentaries about “civic and charitable activity” in the discussion of “impartiality” take a somewhat cautious approach, but still leave much unanswered if one were looking for guidance. The case of Justice Donald McLeod who undertook advocacy for an organization that he founded, is illustrative; the Ontario Judicial Council, applying the Principles of Judicial Office found that Justice McLeod’s activities were “incompatible with judicial office”, but did not affect the public’s confidence in his ability to perform his judicial functions. It therefore dismissed the complaint. Although at the provincial level, the case may be helpful in thinking about boundaries of acceptable conduct.
Large questions in examining the conduct of judges who continue to engage in some form in their pre-appointment activities are 1) whether the nature of the activity matters and 2) whether it is possible for judges to engage in even “laudable” activities if they indicate a particular viewpoint. Put another way, to what extent might a judge’s commitment to equality and their definition of integrity, equality and integrity being two of the CJC’s principles, come into impermissible tension with the principle of impartiality?
Second, major social changes and greater knowledge about how various communities tend to be treated bring to the fore that judges are able to take into account judicial notice of “notorious” facts, those that are broadly known. In R. v. S. (R.D.), the Supreme Court of Canada held that when the Youth Court Judge, in addressing the veracity of police officers involved in arresting a black youth, commented that police officers had lied in the past and had overreacted to non-white youth (although, she said, she was not commenting on the police in this case) did not give rise to a reasonable apprehension of bias. Since 1997, we have learned a great deal more about various manifestation of bias and the impact of social circumstances and have incorporated what we have learned to some extent into how we assess cases. The question is, to what extent does acknowledging stereotyping, for example, impair impartiality, on the one hand, or demonstrate the principle of equality, on the other? Already, the Principles state that “[j]udges should strive to be aware of and understand differences arising from [various grounds]”. Is this sufficient today?
Finally, one major change since the current Principles were developed is the use of technology and, particularly social media. Facebook is 12 years old, Twitter, on which I focus here, is 10 years old. Many judicial appointees today, as well as existing judges, will have used Twitter in their personal and professional capacities in their earlier lives. Academics, especially, may have been outspoken on issues. The use of social media requires care, not only because of what a judge might post, but how it can be perceived by others. Using Twitter for official purposes (by chief justices or administrative officials) is one thing, permitting judges otherwise to tweet, even without identifying themselves as judges, is another. What should be the protocol that permits the use of an effective communication tool without risking the difficulties that can occur with social media, despite the best of intentions. And if certain kinds of activities are permitted (see above), what kind of social media communications about them, if any, will be permitted?
The CJC does not apparently contemplate a wholesale review of the Principles, saying
Having stood the test of time, the Judicial Independence and Appointment Process Committee of the Canadian Judicial Council proposes that the general format and structure of the Ethical Principles remain, with the five principles noted above, that the language be modernized and harmonized and that the commentaries be streamlined to include more recent illustrations of ethical challenges. In addition, some of the principles and commentaries will be re-organized to make the document internally and logically consistent.
Nevertheless, the invitation to make separate submissions may lead to proposals to at least some significant adjustments in the Principles. The CJC has opened this opportunity for diverse participants in and users of the legal system to contribute to the development of new (perhaps only revised?) ethical principles for judges. Anyone interested in how judges can function in the contemporary world without impairing judicial independence would do well to respond. We have long gone past the view of judges as properly isolated and insular, as the current Principles reflect. here we have a chance to inform the CJC’s thinking about how far judges’ conduct should be allowed to travel beyond that in the future. It may be that the CJC concludes that while much of the Ethical Principles could benefit from relatively minor changes, other aspects could profit from significant revision.