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A Few Introductory Words

I hope that this short introduction will help you understand the purpose of my posts, what they are and are not, and also provide an overview of The Ethical Principles for Judges, a document which I will be referring to often in my posts.

Who is this for? As my home page explained, I hope to contribute to a better understanding by Canadians of the ethical standards and guidelines that Canadian judges work by. These are not meant to be scholarly articles. There are several scholars in Canada who have written and spoken extensively on Canadian judicial ethics. I had the good fortune of working with many of them when I was with the National Judicial Institute. I thought about naming some here for those who want a deeper analysis of why Canadian judges make the ethical choices that they do. I have chosen not to because my list would be a bit dated and I would likely miss some young scholars who are new to this work. I would suggest that you go to some of the legal sites like Slaw or Ablawg where you will find articles written by professors who write in this area.

How do I pick my topics? Often, something comes up in the news involving the ethics of judging. My post, Family Matters, is an example. Sometimes it is because of a case decided in our courts. Other topics will be ones that I think are important. My post, Words Matter, fits into this category. Finally, suggestions and questions are always welcome.

Ethical Principles for Judges – In 1998, the Canadian Judicial Council published the first edition of Ethical Principles for Judges (The Principles), a booklet intended to be guidance for federally-appointed judges. In the first edition, then Chief Justice Lamer described the publication as …”a concise yet comprehensive set of principles addressing the many difficult ethical issues that confront judges as they work and live in their communities. It also provides a sound basis to promote a more complete understanding of the role of the judge in society and of the ethical dilemmas they so often encounter.” In 2021, a second edition was published. The changes in the second editions are a good marker for the ways that judging and its ethical challenges change as society changes. A copy of the newest version can be found on the website of the CJC, https://cjc-ccm.ca/sites/default/files/documents/2021/CJC_20-301_Ethical-Principles_Bilingual_Final.pdf

An excellent explanation of the history of The Principles, what it contains and how it is applied using some practical examples is contained in The Mystery of Judicial Ethics: Deciphering the “Code”, 2004 CanLIIDocs 666, authored by The Honourable Justice Georgina Jackson of the Saskatchewan Court of Appeal.

Likely future posts will talk about the kinds of changes that were made in 2021 and why they were necessary.

The Power Of Ethics Susan Liautaud

During the pandemic and after I retired from my judicial work at the Court of Queen’s Bench, I signed up for lots of webinars to keep in touch with the world. One of them advertised a lecture by Susan Liautaud, the author of The Power of Ethics. If you were one of the first fifty or hundred (I forget the number), you would receive a copy of her book. I was one of the lucky ones and shortly after the webinar, I received the book in the mail.

For anyone interested in ethics and how the world today creates big challenges when faced with ethical choices, read this book. The book talks about the barriers to good ethical decision making, using examples that we can remember from the news or that we can relate to because of our daily activities, like using Siri or Alexa in our homes. What particularly resonates with me is her use of frameworks to address ethical issues. One is in her chapter ‘Banished Binary’ where she proposes a framework to “avoid oversimplification of edgy questions into binary questions because it generates a nuanced set of considerations rather than ‘do it’ or ‘don’t do it’ options”. Another one is in her chapter on ethics on the fly. More about that in a bit.

When the National Judicial Institute designed its first course for judges on judicial ethics, we were advised that part of the value in teaching ethics is to give the judges a framework within which to analyze ethical problems. Usually, an ethical dilemma is exactly that – a problem where there are difficult choices and no easy or, sometimes, correct answers. We set about developing one. It needed adjusting as we road tested it with the judges, but I think it helped judges to slow down their analysis when faced with an ethical issue. The adjustments we made were to make the framework simpler. We found that the original framework had overlapping steps which made it harder for the judges not to jump to the end when they thought they had an answer. And that is why I found the frameworks in Dr. Liautaud’s book so inspiring.

I mentioned above the framework that she developed over apparently binary choices. But the one that helps us all is in her chapter ‘Ethics on the Fly’ for situations when we “need to make high-quality ethical decisions quickly…”. Her framework is straightforward and goes like this:

  • Choose the two most important principles.
  • Choose the two most important and irreparable consequences.
  • Choose the two most important forces.
  • Choose two alternatives.

Using this framework, Dr. Liautaud then goes through several questions which will sound familiar to many of us. Taking the car keys away from an elderly relative whose driving may be unsafe. Posting photos of children on social media. And more.

There is much more in the book. I expect to refer to it again. But for now, all I can say is this: Read this book.

Family Matters

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.