Ethical principles for judges should be a code of conduct

  • February 26, 2020

A document laying out ethical principles for judges should be directive, not aspirational, say the CBA’s Judicial Issues Committee and the Ethics and Professional Responsibility Committee after studying the Canadian Judicial Council’s revised Ethical Principles for Judges.

In a letter to the CJC, the two committees set out a number of recommendations for changes to the proposed principles, beginning with the point of the exercise.

Whereas the introduction to the document states, “It is not intended to be a code of conduct that sets out minimum standards of behaviour,” the committees say that’s exactly what it should be. “(T)he EPJ should be a code of conduct with clear, consistent directive language to give meaningful guidance to judges and enhance public understanding and confidence in judicial ethics.”

In the same vein, the committees say aspirational language about the conduct of judges should be removed.

“Many principles n the EPJ reflect fundamental legal requirements for judicial conduct and should not be mistaken for aspirations or exemplary behaviour beyond the norm.”

Among other things, the committees are pleased to see the document offer guidance to judges on the use of social media and recommend that they develop some technological proficiency, and that it states judges’ responsibility to continuing professional development includes education on social context issues.

Many of the committees’ comments on the document have to do with bias, and judges’ responsibility to act appropriately to manage perceptions of their bias.

The revised EPJ contains cautions for judges about sitting as officers or directors or board members of civic, religious or charitable organizations, for fear of perceived conflict, and says that judges who have participated in settlement conferences or judicial mediation shouldn’t be involved in any trial over those issues.

The EPJ says judges who had practised law in government service or legal aid shouldn’t sit on cases commenced in the local office where the judge had practised while he or she was there, but the committees point out that this language is unduly limiting, and even impractical in smaller communities. The committees recommend changing the language to “Judges who practised law in government service or legal aid should not sit on any case in which the judge was directly involved as either counsel of record or in any other capacity that could give rise to a reasonable apprehension of bias.

But another question arises for judges who have left the bench: should they be allowed to appear in court as counsel? The EPJ says no, except in a case where a judge has left the bench after a very short time.

The committees, on the other hand, believe there may be further exceptions and that recommend the EPJ should recognize other areas where it wouldn’t be inappropriate for a judge to appear. “Law Societies in each jurisdiction are well situated to develop rules applicable to former judges returning to the practise of law, including appearing as counsel before a court or in administrative or dispute resolutions proceedings,” the committees say.