A judge who thinks he can effectively control his spouse or grown children should not examine his ethical standards but should look to his appreciation of reality.
I did not plan to make my first blog on judicial ethics about the activities of judicial spouses and children, and whether there are any limits on their activities. However, events took over when news outlets revealed that a flag which carried a political message had been flown on the flagstaff of a U.S. Supreme Court judge. The story grew when these outlets reported that another politically-charged flag had been flown on the flagstaff of another residence of this same judge. Apparently, the judge’s wife had put them both up. I will go no deeper into this U.S. controversy because facts matter and I do not have all the facts.
But, the challenges faced by a judge who has a spouse or children who are politically active or part of the legal profession are as real in Canada as they are in the U.S. Are there limits on what a judicial spouse or child can do, and if not, what does a judge do in such circumstances?
Let’s start with a couple of historical notes. One of the first times that I remember this issue being real is the case of In Re Pinochet, a case from the House of Lords of the United Kingdom. This case, decided in 1999, dealt with the proposed extradition case of former Chilean dictator, Augosto Pinochet, to Spain for prosecution for crimes committed while he was dictator. Amnesty International (AI) was one of the organizations supporting his extradition. There were 5 Law Lords assigned to hear the case, and Lord Hoffman was one of them. Lord Hoffman was a member of the charity associated with AI and his spouse was on the Board of AI. The vote to extradite was split with the majority including Lord Hoffman voting in favour of extradition. That decision was vacated by 5 other Law Lords because Lord Hoffman’s position on the charity led to a reasonable perception of bias, even thought the Law Lords made it clear that they did not find that there was actual bias. Because of this decision, the fact that his spouse was on the Board of AI did not come into play.
Now to Canada. In 1991, the Canadian Judicial Council (CJC), which provides ethical guidance to judges, published a book entitled Commentaries on Judicial Conduct. Addressing the activities of family members, after the statement cited at the beginning of this post, it said:
Providing the activity is clearly that of the spouse, I see no problem. Where the activity could be seen to be joint, the judge ought to ensure disassociation.
In 1998, the CJC published Ethical Principles for Judges (see my introductory post for a short explanation of this document). In the first edition, in the Chapter addressing political activity, it says:
4. Although members of a judge’s family have every right to be politically active, judges should recognize that such activities of close family members may, even if erroneously, adversely affect the public perception of a judge’s impartiality. In any case before the court in which there could reasonably be such a perception, the judge should not sit.
The second edition has language that, to me, is a little softer but conveys the same sentiment:
If a member of a judge’s family is politically active, the judge should recognize that such activities of close family members may adversely affect the public perception of the judge’s impartiality. In cases where such public perceptions may arise, a judge should consider whether recusal is the appropriate remedy in a given case.
Even though the second edition is not quite a directive to judges, the message is clear. The burden of a family member’s political activity falls on the judge. The judge must consider recusal if there is a reasonable perception that the judge cannot be impartial in the case.
What does that mean in practical terms?
- If a judge is assigned an application for an injunction against picketers of an MP’s office, and if the judge’s wife is an active member of the same political party as the MP, the judge should not sit.
- A judge should not attend political functions, even if he or she somehow can make it clear it is only as a spouse.
- Lawn signs on the judge’s house are probably not a good idea.
- Attending the celebration when a daughter is elected as an MP for the first time is not a good idea.
I finished this post just as the Canadian Judicial Council announced a decision involving a judge who had contributed to a political party after she had been appointed. It is not directly on point to the issues raised here, but may be a good way to talk about the relationship between ethics and conduct proceedings for Canadian judges. Stay tuned.