A Judge’s Place Is on the Bench . . . Not in the Political Arena
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.
I suspect this alleged principle was always more honoured in the breach.
I hope Carol Baird Ellen gets elected. She’ll then be the perfect MP (whether in Opposition or Government) to hear from the many Canadians who have serious issues with the justice system.
So I guess the only appropriate model is the Roy McMurtry one; politics first, bench later.
A retired judge is no longer a sitting judge. There are some limits about what he or she can do, as in appear as an advocate in court, but running for office is not necessarily a bad thing.
We want the best and brightest leading our country. We want evidence based decision making in our government. And I can’t think of anyone better to lead the charge against the ill-advised “tough on crime” agenda than members of the bar and former members of the bench.
I suggest that the policy (I wouldn’t call it a model) preferred by those with political / judicial ambitions is that there should be no restrictions on movement between the two purportedly separate worlds. A classic example is one of the people cited by Mr. Dodek – Wally Oppal.
His appointment to the B.C. Court of Appeal was one he presumably sought, yet he was there for only about three years before jumping at the chance to become Attorney General. That backfired on him after his first term when the Premier (in one of his classic acts of manipulation) got him to move to a far less secure riding and he lost – to someone who is still sitting in the Legislature as an independent.
According to reports that we subsequently saw in the media, Mr. Oppal then decided he wanted to return to the bench. The position he coveted was Chief Judge of the B.C. Provincial Court. I have just found a copy of Vaughn Palmer’s most intersting February 2010 article on this story here:
http://www.canada.com/story.html?id=928d26b1-dd49-4613-baa2-61c2e54b6642
I think you are missing a few, Adam; and also that the fluidity between judicial and political office appears to be a singularly BC phenomenon.
The earliest example I know of, is the former AG, Alexander Henderson (March 13, 1860 – December 13, 1940), who went to the County Court Bench, resigning to run for the Legislative Assembly.
So Oppal, JA was clearly not the first.
Tom Berger and Ted Hughes didn’t run for political office when they stepped down from the Bench, but both became fully engaged in high-profile public service, with Hughes becoming Deputy AG.
Berger was of course, the NDP leader before Dave Barrett, and his politics were – and are – an open book. he pioneered a move away from the traditionally cloistered approach of Canadian judges to public issues. Speaking at a Guelph Convocation (repeated in a letter to the Globe & Mail) arguing for the inclusion of aboriginal rights in the Charter of Rights then under development, he crossed a line that led to a complaint to the Canadian Judicial Council.
Berger’s approach aroused the ire of Addy J or the Federal Court and Prime Minister Trudeau – see Dr Martin Felsky’s, “The Berger Affair and the Independence of the Judiciary” (1984), 42. U.T. Fac. L. Rev. 118, and Jeremy Webber’s “The Limits to Judges’ Free Speech: A Comment on the Report of the Committee of Investigation into the Conduct of the Hon. Mr Justice Berger“
Does anyone have any thoughts on why judges in other provinces do not seem to have these sort of career changes? Is it just that politics is always busy west of the Rockies?
Though as a B.C. resident I have necessarily contended principally with this province’s legal profession I suspect the real problem is a national, and even global, one. However, it may be true that there is a certain marked lack of discretion in how principles are flouted in B.C.
The problem, as noted by Pitel and Bortolin in the paper cited above, extends to judges rejoining the bar after retiring from the bench. One example that I find particularly illuminating is the former BCSC judge who is listed as a member of a curious organization called the “International Society for the Promotion of the Public Interest of lawyer Independence” at the end of this pamphlet – http://www.stikeman.com/2011/en/pdf/Why-We-Need-Independent-Lawyers.pdf – created by a former president of the Law Society of B.C.
I characterize this pamphlet as propaganda. The former judge is an Associate Counsel with a small law firm that is about as connected as any law firm could be. Another lawyer with that firm very recently has just commenced a two-year leave of absence to serve as Executive Legal Officer to the Chief Justice of Canada (whose career as a judge also began in Vancouver).