Workplace Misconduct by Canadian Judges

Last month, the Washington Post ran a story about the abrupt removal from a form sent “to thousands of judiciary staffers who work for federal judges” of a question regarding workplace misconduct. An official quoted in the story characterized the initial inclusion of the question as “an unfortunate administrative error.” Before the question was removed, however, “34 of about 40 employees — nearly everyone who responded — indicated that they had observed some form of inappropriate behavior.” While the small sample size, and reported concerns about the broad wording of the question, make it inappropriate to draw definitive conclusions from this story, the fact that “nearly everyone who responded” reported witnessing inappropriate workplace behaviour certainly raises some questions worth pursuing.

The Post story also prompted some questions for me about what we know (or don’t know) about workplace misconduct by judges in Canada. Are there statistics on the incidence of workplace misconduct by judges? Are there effective preventative and responsive measures in place? After some research, it seems to me that we don’t know much about either of these questions. This is a problem, in my view. Public confidence in the courts requires assurances that judges don’t abuse the power of their positions or, at the very least, that if such abuses occur, accountability follows swiftly and transparently.

Background

“Workplace misconduct” by judges includes bullying and harassment (including but not limited to sexual harassment) of court employees by judges. In the United States, the issue of workplace misconduct by judges has received considerable attention over the last few years. In 2017, a high-profile federal judge – Judge Alex Kozinski – retired “after multiple women accused him of sexual harassment, prompting a formal inquiry.” Several years later, in 2020, a former clerk to Judge Stephen Reinhardt testified before a congressional committee that he “routinely and frequently’ sexually harassed her and other female clerks.” Both sets of allegations received extensive media coverage.

In between these two events, Chief Justice John Roberts of the Supreme Court of the United States directed the formation of a Working Group “to review the safeguards currently in place within the [federal] Judiciary to protect employees from inappropriate conduct in the workplace.” The Working Group issued its report in 2018 “recommending measures to improve workplace conduct policies and procedures in the federal Judiciary” and observing, based on the information it gathered, that “inappropriate conduct, although not pervasive within the Judiciary, is not limited to a few isolated instances.” Also in 2018, the American Conference of Chief Justices (a group composed of the highest judicial officers of state courts) issued a resolution that encouraged each state court to provide every judge and employee with training on workplace harassment and to establish procedures to identify and respond to such harassment.

What do we know about workplace misconduct by judges in Canada?

To date, the issue of workplace misconduct by judges has received less public attention in Canada than in the United States. While we have a growing (if still insufficient) body of studies and data on bullying and harassment in the Canadian legal profession (see, for example, here and here), there appears to be no comparable body of information about the extent of bullying and harassment by judges in the workplace. If courts or court administrators have been collecting this information, it does not appear that they have made it public. As noted above, the Working Group convened by Chief Justice Roberts concluded that workplace misconduct was not rare (albeit also not pervasive) in the U.S. federal judiciary. Is the same true in Canada? We don’t know. Given the significant levels of reported harassment in Canadian workplaces generally (see, for example, this study), it doesn’t seem reasonable to assume that workplace misconduct by Canadian judges simply doesn’t exist. Indeed, from time to time, cases pop up in media reports (see, for example, here, for a case involving a justice of the peace in Ontario).

In 2018, the Lawyer’s Daily reported asking both the Canadian Judicial Council (CJC) and Ontario Judicial Council (OJC) about complaints they received of “inappropriate sexualized comments or other sexualized workplace conduct” in the decade prior. The representative from OJC reported not seeing “any complaints of that nature” and the CJC’s representative recalled “two relevant sexual harassment-related complaints.” While these are not significant numbers, one should not assume this means that workplace misconduct by judges is extremely rare in Canada. The information gathered only related to one potential type of workplace misconduct—sexual harassment. This is important given that the Working Group convened by Chief Justice John Roberts concluded that, in the American federal judiciary, “of the inappropriate behavior that does occur, incivility, disrespect, or crude behavior are more common than sexual harassment.” More importantly, of course, are the host of reasons why court employees who experience workplace misconduct may be reluctant to make formal complaints against judges. One lawyer interviewed in the Lawyer’s Daily article explained: “reporting…may not seem like a realistic option to many lawyers and staff, given the sensitivities, power dynamics and potential repercussions for a lawyer’s career and clients.”

Even where complaints are made, more transparency is needed. One of the most concerning things revealed in the 2018 Lawyer’s Daily article was that “a superior court judge who subjected a court staffer to sexualized contact in the workplace quietly resigned after a Canadian Judicial Council (CJC) investigation, without the judicial disciplinary body publicly disclosing his actions until now.” So, apparently, a complaint was made in 2012 which led to an investigation and the resignation of a judge but this situation was only made public in 2018 because the Lawyer’s Daily specifically asked the CJC about what complaints it had received about sexual harassment. While there are legitimate questions as to when and how the subject of a disciplinary complaint should be identified, this type of delayed and seemingly selective disclosure risks diminishing public confidence.

What measures exist to address workplace misconduct by judges in Canada?

In the United States, the Working Group tasked with studying workplace misconduct in federal courts recommended that the judiciary should take several steps to combat and redress workplace misconduct, including (1) revising codes and other published guidance to clarify standards and delineate responsibilities; (2) improving procedures for identifying and responding to misconduct and (3) supplementing judicial training efforts to raise awareness on workplace conduct issues. Since these recommendations were made, at least some progress is evident. As one commentator (a judge) reported in a 2021 law review article:

Now, more than three years later, there have been substantial changes in workplace policies and visible improvements in the workplace environment. Ethics and discipline rules have been significantly revised, the national Office of Judicial Integrity and circuit Directors of Workplace Relations were established, and employees now have new avenues to seek confidential advice and guidance with multiple formal, informal, and anonymous reporting options and a judiciary that is more prepared to take prompt, fair action.

In Canada, there have also been relevant policy developments in recent years. For example, the CJC’s revised Ethical Principles for Judges, released in June 2021, includes new language explicitly recognizing that “judges [must] refrain from any form of harassment in the workplace.” Some courts have developed workplace conduct policies in recent years (see, for example, here and here).

Overall, however, it is difficult to get a clear picture about whether and how this issue is being addressed across Canada. In the United States, the National Centre for State Courts hosts a website with resources on workplace conduct, where one can find a chart that provides summary information about the workplace conduct policies relating to each state court. There is no equivalent repository in Canada. Moreover, even where one can find mention of workplace conduct policies for certain courts, the content of such policies isn’t generally accessible.

Next Steps

The public has an interest in the effective and safe operation of courts and in appropriate accountability for judicial misconduct. Currently, the nature of, and responses to, workplace misconduct by judges in Canada remain largely unknown. The issue ought to be comprehensively studied with results available to the public. Existing and future policy responses must be also more transparent and readily accessible. Shielding the public from information about workplace misconduct by judges is neither necessary nor productive. As Dahlia Lithwick recently wrote regarding the U.S. Supreme Court’s lack of transparency about the application of a court-wide mask requirement to its own judges, “into…silence falls institutional criticism that further erodes public confidence.”