Judges Need Ethics Rules, Not Just Ethical Guidance

Canada is extremely fortunate to be served by a highly competent and responsible judiciary. But judges, like all of us, experience ethical challenges as they fulfill their vitally important social functions. However, many Canadian judges are not subject to a binding code of conduct that can shepherd their behaviour. Instead, they are only offered advice to assist them in navigating ethical issues. We suggest that this should change.

There are currently over 1000 federally appointed judges in Canada. Although these judges are subject to a few restraints by virtue of the Judges Act (such as, for example, a prohibition on extra-judicial employment), their behaviour is not constrained by a binding ethics code.

The Canadian Judicial Council (CJC) is charged with, among other things, investigating and adjudicating complaints against federally appointed judges. To its credit, in 1998, the CJC published its Ethical Principles for Judges (EPJs) which addresses how the principles of judicial independence, integrity, diligence, equality and impartiality should guide the behaviour of federally appointed judges in Canada. The EPJs are, however, explicitly non-binding. The document states:

The Statements, Principles and Commentaries [contained in the EPJs] are advisory in nature. Their goals are to assist judges with the difficult ethical and professional issues which confront them and to assist members of the public to better understand the judicial role. They are not and shall not be used as a code or a list of prohibited behaviours. They do not set out standards defining judicial misconduct. [emphasis added]

In March 2019, the CJC invited public feedback as part of its review of the EPJs. The goal of the review, as described in a Background Paper published by CJC, is to “to ensure [the EPJs] continue to provide guidance for judges in a manner that reflects evolving public expectations.” This is the first review of the EPJs in over two decades.

The Board of the Canadian Association for Legal Ethics/Association canadienne pour l’éthique juridique (CALE/ACEJ), of which we are the President and Chair, respectively, provided both written and in-person feedback to the CJC on the EPJs. Links to our three written submissions can be found here. One of CALE/ACEJ’s major submissions is that the EPJs should be reconstituted as a binding code of conduct. In its feedback, the Canadian Bar Association’s Judicial Issues Committee similarly stated that it “believes that modern guidance on judicial ethics requires more than aspirational guidelines.”

In November 2019, the CJC released a draft revised version of the EPJs. The draft represents, overall, a thoughtful and thorough revision of the EPJs. The draft also meaningfully adopts stakeholder feedback in several major respects. The draft does not, however, shift the EPJs from aspirational guidelines to a binding code of conduct. The draft continues to state that the EPJs are “advisory in nature” and explicitly cautions that the document is “not intended to be a code of conduct that sets out minimum standards of behaviour.”

The CJC has welcomed feedback on the draft revised EPJs and has stated that its goal is to produce a final version in Spring 2020. So, there’s still time for the EPJs to become a binding ethics code for federally appointed judges in Canada. We believe that such a change is necessary for the reasons that follow, which are drawn from CALE/ACEJ’s previous submissions to the CJC.

First, public confidence in the judiciary requires that judges be subject to binding ethical rules. As Roncarelli v. Duplessis made clear, all holders of public power must be subject to the principles of the rule of law. This applies to members of the judiciary as much as it applies to others who exercise public power. If the EPJs are not the source of standards by which judges can be assessed in their exercise of public power, then what are the relevant standards, and where can they be found? How can the public have confidence in the judiciary if there are no clearly articulated and enforceable standards by which to assess judicial behaviour? In a mature democracy in the twenty-first century, a binding code of conduct is a vital mechanism that provides public accountability and enhances the legitimacy of the judiciary as an independent and self-regulating institution.

Second, judges themselves need clearly articulated standards to guide their behaviour and upon which they can rely to avoid allegations of misconduct. The judiciary would benefit from a document that “sets out minimum standards of behaviour”, something which is explicitly disavowed in the draft revised EPJs, as noted above.

Third, there is a fundamental contradiction. Although, the EPJs state that they “are not and shall not be used as a code or a list of prohibited behaviours….[and] do not set out standards defining judicial misconduct,” the reality is that they have in fact been deployed by the CJC as part of the disciplinary process in at least two cases – those dealing with the behaviour of Justices Theodore Matlow and Patrick Smith. Stating that the EPJs are advisory only but then referring to them in disciplinary processes is inconsistent, creating confusion for both judges and the general public and undermining public confidence in the administration of justice.

Fourth, one concern that has been raised in relation to creating binding EPJs is that such an approach would be a threat to judicial independence. Indeed, the draft revised EPJs take care to note that “[n]othing in Ethical Principles can or is intended to limit or restrict…judicial independence in any manner.” We believe this concern to be unfounded. Many jurisdictions around the world have enforceable judicial codes of conduct and there is no reason to believe that they pose a threat to judicial independence. Most civil law countries have such codes, as do several of our common law cousins including the United States, South Africa and Nigeria.[1] Indeed, as of March 2019, in England and Wales the Judicial Complaints Investigation Office, the Lord Chancellor and the Lord Chief Justice are all explicitly permitted to have recourse to their Guide to Judicial Conduct “in exercising their disciplinary powers.” Moreover, in our own front yard, Quebec’s provincial court judges are bound by a Code of Conduct and there is nothing to suggest that they lack independence.

Fifth, another objection against binding EPJs is that an advice-based approach allows for the setting of high aspirational standards, on the understanding that they may not be met in all circumstances, while a code approach would necessitate lower or minimal standards to ensure compliance. This is a false dichotomy. Proper drafting, such as distinguishing between “shall” and “should”, can allow a binding code to both establish minimum standards and including more aspirational goals. This is evident in other binding statements of judicial ethics and also in many lawyer codes of conduct. Moreover, there are many elements of the draft revised EPJs that cannot be considered merely aspirational. Take, for example, the statements that “judges must be and must appear to be impartial in their performance of their judicial duties” or “all partisan political activity must cease upon appointment.” Shouldn’t Canadians be assured that this these are “minimum standards of conduct” to which judges must adhere?

Sixth, we have heard it argued that binding EPJs are untenable because there may be situations where two principles are perceived as contradictory, and it would be unfair to potentially discipline a judge who chooses one rather than the other. But the success of judicial codes in other jurisdictions, and the experience of binding codes in other professions, including lawyers, shows that this concern is not well founded. A well-drafted code can achieve a realistic balancing of obligations.

Canadian judges should be proud of the high ethical standards under which they operate. Clearly articulating and enforcing such standards as required behaviour enhances not only public confidence in the judiciary but also provides more clarity and certainty to members of the judiciary themselves. The ship has not sailed. The CJC should revise its draft EPJs to make clear that it is a binding code of ethical conduct for judges. It might be another two decades before this error can be rectified.

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[1] See R. Devlin & A. Dodek, Regulating Judges: Beyond Independence and Accountability 2007