JUDICIAL ETHICS: EXPLORING MISCONDUCT AND
ACCOUNTABILITY FOR JUDGES
A. Wayne MacKay*
Professor of Law
* This paper was prepared with the excellent research and drafting assistance of Tracy MacPhee, a third year law student at Dalhousie University.
PART I: AN INTRODUCTION
A. The Judicial Tradition
Great is Justice !
Justice is not settled by legislators and laws - it is in the Soul;
It can not be varied by statutes, any more than love, pride, the attraction of gravity, can;
It is immutable - it does not depend on majorities - majorities or what not,
come at last before the same passionless and exact tribunal.
For justice are the grand natural lawyers, and perfect judges -it is in their Souls;
It is well assorted - they have not studied for nothing- the great includes the less;
They rule on the highest grounds - they oversee all eras, states, and administrations.
The perfect judge fears nothing - he [she] could go front to front before God;
Before the perfect judge all shall stand back - life and death shall stand back - heaven and hell shall stand back.
- Walt Whitman(1)
i. The Traditional Role of the Judge
The importance of the role of judges in our society is a respected and well recognized historical fact. Jeffrey M. Shaman, Director of the Center for Judicial Conduct, in his article "Judicial Ethics" indicates the power of judges in society.
Judges are important public officials whose authority reaches every corner of society. Judges resolve disputes between people, and interpret and apply the law by which we live. Through that process, they define our rights and responsibilities, determine the distribution of vast amounts of public and private resources, and direct the actions of officials in other branches of government.(2)
The extraordinary power invested in the judicial office demands a high standard of behaviour. Perhaps the earliest affirmation of the requirements of conduct for judges, particularly commonwealth judges, can be found in a 1346 statute in the time of Edward III.(3)
We have commanded all our justices that they shall from henceforth do equal law and execution of right to all our subjects, rich and poor, without having regard to any person, and without omitting to do right for any letters or commandments which may come to them from us, or from any other, or by any other cause."(4)
For six hundred years the judiciary has been guided by these principles: the commitment to uphold the law and to do so in an impartial and unbiased manner. These fundamental principles are affirmed in the Oaths of Office that are required of judges. An example of the Oath required is that of the English Judiciary:
I do swear that I will well and truly serve our sovereign... and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will... .(5)
Despite the affirmation of these principles, they were not always adhered to. There was until 1725 the custom of judges selling offices which they had the power to appoint. More recently the Marshall Inquiry and the Hryciuk Inquiry brought into public controversy the behaviour of judges. When these principles are ignored they bring the justice system into disrepute. These two Canadian cases concerning alleged misconduct on the part of judges will be explored in more detail later in this piece.
ii. The Judicial Role: Myths and Realities
The late Chief Justice Bora Laskin listed a number of qualities which he felt were essential to being a good judge - character; integrity; honesty; industry; life experience, which can include politics; flexibility of mind; knowledge of the law; willingness to listen - but indicated that not all were easily ascertainable in advance, and some "must be taken on expectancy."(6)
An empirical study of Alberta judges conducted by P. McCormick and I. Greene shows that knowledge of the law was not at the top of the list of desirable qualities identified by the judges themselves. McCormick and Greene asked judges, from the Provincial Court to the Court of Appeal, what characteristics they thought made good judges. The top seven most mentioned qualities in order of frequency were as follows:
1. industry, diligence (21)
2. courtesy (13)
3. empathy (13)
4. patience (12)
5. knowledge of the law (11)
6. intelligence (10)
7. sense of fair play (10)(7)
These judges esteemed humanity, patience and courtesy at roughly the same level as knowledge of the law or intelligence. Equally interesting were some of the qualities that were mentioned only once or twice: independence and objectivity. It is ironic to note that text writers and judicial councils tell us this is the very essence of being a judge. This clashes with the judicial self-assessment of the qualities required for good judging. Yet the traditional version of the judge continues to dominate the public's perception. It is necessary to expose these myths if express codes of conduct are to be accepted.
One of the burdens of being a judge is that one is expected to rise above mere mortal status and dispense justice with an objectivity that borders on the divine. Independent from the pressures of everyday life and free of political influences, the judge is to resolve difficult legal disputes with the wisdom of a Solomon. This is the idealized version of the judge and is at best something to aspire to. It tends to obscure the human dimensions of the practical task of judging.
I conclude by reminding you that the law has two faces. It is, firstly, a practical craft and one whose texture is highly technical and precise. It is, secondly, a human process whose polar star is the protection and development of human dignity. (8)
Given the high expectations that we have for judges, it is little wonder that we forget that they are human beings with the attendant strengths and weaknesses. Judges should aspire to objectivity but they cannot avoid being shaped by their background and life experiences.
The element of objectivity clearly distinguishes the judiciary from the other branches of government and makes its members the logical choice to chair a government commission. Judges are prized for their impartiality and willingness to listen to all sides of an argument with an open mind. Allegations of bias or partiality would be fatal to public confidence in the judiciary, so cautious restraint was seen as the best road to neutrality. Judges were also expected to stay away from the legislative or policy role or engage in it in a very limited way:
In spite of the judge's role as legislator, justice must be administered according to law, not according to the judge's individual sense of justice. The judge's legislative competence is narrower than that of the legislator. His/her role is to legislate between the gaps, to fill the open spaces in the law. Thus the rule of law is maintained. (9)
Any suggestion that judges were adjudicating in a biased fashion was not taken lightly. When members of the press were impertinent enough to suggest that the Supreme Court of Canada, headed by the late Chief Justice Laskin, favoured the federal government in relation to the constitutional distribution of powers, the response was quick and to the point. Then Chief Justice Laskin responded as follows:
The allegation is reckless in its implications that we have considerable freedom to give voice to our personal predilections and thus to political preferences. We have no such freedom, and it is a disservice to the present members of this Court and the work of those who have gone before us to suggest a federal bias because of federal appointment. Do we lean? Of course we do, in the direction in which the commands of the constitution take us, according to our individual understandings. (10)
Many judges and lawyers still accept this traditional view of the judge, but others have begun to question how objective one can really be even in pursuit of the correct legal solution.(11) Even Professor Ronald Dworkin, who continues to have faith in the ability of the "Herculean judge" to distinguish between law and politics and find the correct legal answer, (12) admits that objectivity is more of an ideal than a reality.
There is beginning to emerge a more modern conception of the role of the judge which is more tolerant of elements of subjectivity. Those who support this version of the judge argue that to completely factor out all subjective perceptions would make judging mechanical and inhuman. It would also be virtually impossible to do. This more subjective and human judge is not to be substituted for the objective judge. The challenge is to put the two roles together. The argument for representation in the judiciary follows from this paradigm: more perspectives leads to more openmindedness, more ways of seeing things. This in turn destroys stereotypes that may otherwise not be confronted if the dominant image of objectivity is not challenged.
Recognizing one's biases may be the best route to impartial judging. Justice Wilson makes this point by citing the following passage from another judge:
[T]he judge who realizes before listening to a case, that all men have a natural bias of mind and that thought is apt to be coloured by predilection is more likely to make a conscious effort at impartiality and dispassionateness than one who believes that his elevation to the bench makes him at once the dehumanized instrument of infallible logical truth. (13)
This approach to the role of the judge has important implications the scope of judicial ethics. If revealing one's biases as a judge is a positive thing, then judicial expression should be encouraged rather than restrained.(14)
The traditional perspective sends a clear message that a judge must be restrained in most matters and where possible err on the side of caution. This has certainly been the traditional view of the judge, inherited from the United Kingdom, but does it apply to the Canada of the 1990's and beyond? More particularly, should a judge continue to exercise restraint when the 1982 Canadian Charter of Rights and Freedoms(15) has cast the judge in the role of a significant policy-maker? (16) As the judge enters the uncharted territory of policy-making, it is even more important that the judge be guided by express standards of ethical conduct rather than rely upon his or her innate common sense. As judicial power grows so does the need to adhere to clear ethical standards.
iii. Judicial Power
Judge Learned Hand eloquently identified the centrality of judges to the administration of justice in his decision in Brown v. Walter:(17)
Justice does not depend upon legal dialectics so much as upon the atmosphere of the courtroom, and that in the end depends primarily upon the judge.
The power a judge has to affect the life and future of individuals and society is tremendous. This power must make demands of ethical standards of conduct that the ordinary citizen is not required to meet. Despite the importance of ethical behaviour, there is very little guidance in most jurisdiction about what is appropriate behaviour. This paper will seek to identify some of the pressing ethical concerns facing judges and the use of judicial codes as a mechanism for establishing and articulating proper standards of conduct.
A recent Canadian case highlighted the importance of having a written standard of conduct for judges. In an inquiry into the conduct of a Provincial Court Judge it became apparent that the misconduct had been occurring for a number of years, yet this behaviour was only now being questioned. Judges occupy a position of power relative to other actors in the administration of justice. Madame Justice MacFarland indicated in the Inquiry Re: W.P. Hryciuk a Judge of the Ontario Court:(18)
While a judge has no official authority over other persons working in the court system, in terms of playing any role in the hiring, firing or otherwise disciplining of those persons, it is apparent that by his very office he plays a significant and unique role in their working lives. Judges must take particular care never to misuse or to abuse that power.
A Code of Judicial Conduct provides a standard against which to assess judicial behaviour. It also serves as a guide to judges about what is and is not acceptable behaviour. While the conduct of Judge Hryciuk was the sexual harassment of lawyers and judges in his domain, and thus should have been recognized by all as unacceptable, there are other kinds of judicial misconduct that are less apparent. It is in these grey areas that the concept of judicial ethics become particularly important. There would likely be widespread agreement that a judge should not abuse his or her position of power but less agreement about what would constitute such an abuse.
B. "Judicial Ethics": A Need for Definition
These are various definitions of judicial ethics and interestingly some dictionaries which provide no definition at all.
The Canadian Law Dictionary
Ethics: The basic principles of right action. "Ethics of a Profession" means the general body of rules, written or unwritten relative to the conduct of the members of the profession intended to guide them in maintaining certain basic standards of behaviour.
An increasingly popular topic of discussion and debate this term remains ill defined. (19)
Black's Law Dictionary (6th Ed.)
Ethics:Of or relating to moral actio, conduct, motive or character; as, ethical emotion; also, treating of moral feeling, duties or conduct; containing precepts of morality; moral. Professionally right or befitting; conforming to professional standards of conduct. (20)
Gilmer's Revision: The Law Dictionary
Ethics:no definition. (21)
Stroud's Judicial Dictionary of Words and Phrases
Ethics:no definition. (22)
Ethics is a concept central to the judges role but it is not a well defined concept. To confront some of the issues facing the Judiciary it is first necessary to look at the meaning and requirements of judicial ethics. The Honorable Mr. Justice Thomas of the Supreme Court of Queensland identified two key issues that must be addressed. The identification of standard to which members of the judiciary must be held and a mechanism, formal or informal, to ensure that these standards are adhered to.(23)
Some jurisdictions including the Unites States, Kenya, Tanzania, and South Africa have chosen to provide formal guidance to judicial officers through the use of codes of conduct. Namibia currently has a judicial code under consideration but it is not yet in force. Despite the usefulness of Judicial Codes they are not and will not become substitutes for the ethics of individual judges. The codes are useful guides and provide a thoughtful analysis of the perceptions and consequences of judicial misconduct. Peter Moser in his article on Judicial Ethics(24) indicates:
[J]ustice in the courtroom cannot be attained solely by providing standards in a code of judicial conduct. Achieving justice depends significantly upon not only the discretion and abilities of each judge, but upon what that judge does to assure that every proceeding is fairly heard and decided and to assure that litigants and the public have confidence in the impartiality and independence of the judiciary. The 1990 Code [Model Code of Judicial Conduct] provides improved standards under which judges are better able to ensure fairness and justice in litigated matters. (25)
There is likely to be no clear agreement about what is encompassed in the realm of judicial ethics. While there may be some general principles that have a universal appeal, at least within Commonwealth trained judges, judicial ethics, like most concepts, is context specific. One of the most important contexts is the historical, geographical and political setting in which judges operate. In that respect North American views about what constitutes judicial misconduct may vary from those in Africa. Indeed, there may be substantial differences between various countries within the vast continent of Africa.
In writing this paper I am undoubtedly influenced by my experiences as a Canadian operating in a North American continent that is dominated by the United States of America. There is extensive reference in this paper to the content and evolution of the American Code of Judicial Conduct - not because it is necessarily the best but rather because it is readily available and has attracted the most commentary. It may also be that my frequent reference to the North American experiences will make my conclusions less relevant in a different context. This is a possible problem to which I wanted to alert you. I am confident that much can be learned from a comparative analysis of the problems of judicial ethics.
PART II: JUDICIAL CODES
A. The Rise of Judicial Codes
As media scrutiny increases and public confidence is eroded by judicial scandals, Judicial Ethics has become an increasingly important topic for judges. The only Canadian Jurisdiction with a written code of judicial conduct is British Columbia. However, there has been an increased interest in the development of judicial codes of conduct. The Canadian Bar Association has recently solicited an opinion about the constitutionality of a code of judicial conduct in Canada. At its 1995 annual meetings the Canadian Bar Association intends to debate the following recommendation:
WHEREAS in order to enure public confidence in the adminstration of justice and in a demonstrable spirit of openness and transparency, but always ensuring the integrity and independence of the judiciary, there should be an open and credible complaints procedure:
THEREFORE BE IT RESOLVED:
10.11 That the Canadian Judicial Council and its provincial and territorial counterparts develop a Code of Judicial Conduct that includes a list of unacceptable behaviour and graduated levels of sanctions for breaches of the Code. (26)
There has been a recent increase in the use of Judicial Codes in Africa. The Introduction of the Code of Conduct For Judicial Officers - Kenya indicates that the development of codes is a response to current opinion:
The need to formulate a code of conduct for the Judiciary was recommended by the Kotut Committee to inquire into the terms and Conditions of Service of the Judiciary (1991- 1993). The same sentiments were unanimously expressed recently during a seminar for Judges and Magistrates on "Judicial Education and Accountability" held in Mombassa between 6th and 9th September 1994. (27)
The underlying emphasis is on openness and public confidence but the development of codes of conduct also has benefits for the Judiciary. The development of codes can provide an opportunity for discussion and canvassing of ethical issues. The code would also serve as a guide for judges. Despite the potential benefits of judicial codes of conduct there has been some resistance to their articulation.
Judicial codes would appear to be a recent phenomenon in many countries including a number of those in Africa. Some African countries have adopted codes at an early stage but many of the codes such as that of Namibia are of recent vintage. The United States is an exception in that it has experimented with various forms of judicial codes since at least the 1920s. This early development in the United States may in part be explained by the American practice of electing some of their judges and the potential increases for judicial misconduct which that may entail. Whatever the reason for its early development, the breadth of the American experience has attracted much comment in this paper. The hope is that we might learn from the successes and failures of the American experience.
B. Resistance to Judicial Codes
i. Judicial Independence
Judicial independence is often cited as the reason why judges should not be restricted by codes of conduct.
No change is tolerable which renders judicial tenure insecure, which undermines the position of respect in which judges are traditionally held, or, in short, which directly or indirectly threatens the independence of the judiciary. (28)
Independence has always been considered a cardinal feature of the role of a Judge. However, the reason for this grant of independence must not be lost. Mr. Justice McGarvie indicated:
It is important in this area not to cast a good principle too widely. The only independence which I seek to justify within the principle of judicial independence, is that which, if absent, would put at risk impartiality in deciding court cases. (29)
The premise underlying the grant of judicial independence is that it is in the interest of justice. It is also vital that the independence be vested in persons who will behave in an ethical manner in their judicial and personal lives.(30)
There is recognition in Judicial Codes that the cardinal feature of the justice system is still independence. In the preamble of the Code of Conduct For Judicial Officers - Kenya there is a recognition that the Code is intended to promote and not inhibit independence.
[T]his code contains several general rules of conduct to be observed by a judicial officer so as to maintain integrity and independence and to uphold the dignity of the judicial office. (31)
The independence to be respected must be seen as existing to protect the impartiality of judicial decisions and not the personal interests of the judges. With this understanding it is necessary to reconsider the use of judicial codes of conduct. The question that must be asked is whether the requirement of independence is impinged by requiring certain standards of conduct in judges.
There is a commonly held view that setting judicial standards of conduct and making judges accountable for their breach will interfere with the independence of the judiciary. This conflict between independence and accountability is more apparent than real. I have argued elsewhere that judicial independence and accountability are mutually supportive.(32) The ultimate goal of both concepts is to advance impartial justice and increase public confidence in the capacity of judges to do so. A recognition of this view might decrease the resistance of judges to the articulation of judicial codes of conduct.
C. Creating a Judicial Code
One concern with the development and use of Codes of Judicial Conduct is that they allow the legislative branch of the government too much input into the conduct of judges. However, codes do not have to emanate from the legislature. Another concern is that the code will be rigid and unrealistic and interfere with the judges' primary responsibility. To explore these concerns it is useful to look at the American experiences, particularly the American experience in revising its Code in 1990.
i. Revising the Code: The American Experience
The American Code is not an inflexible or frozen instrument: it is revised to reflect changing realities and new concerns. The revision of the American Code is a long process with a tremendous amount of input from a variety of sources.
The ABA Standing Committee on Ethics and Professional Responsibility began revising the Code in 1986. A Sub Committee on Judicial Conduct was appointed. The Committee held public hearings and consulted formal sources, and advisers. They conducted a complete study of existing codes, legal literature, law review articles, and statistical studies. Judges at both the federal and state levels were sent surveys. Surveys were also sent to all state judicial conduct organizations, to the conferences of the American Bar Association Judicial Administrative Division, and to the American Judicature Society.(33)
The process of revision was a long one, extending over three years. This process demonstrates that judicial codes are not just legislative documents imposed on judges but rather comprehensive and well researched attempts to assist judges in maintaining a very difficult position in the community. The revision of Model Code of Judicial Conduct is the result of a cooperative effort on the part of the public, judges, judicial and legal institutions. Codes need not be the dictates of the legislators, and they should be capable of growth and evolution.
ii. New Judicial Codes: The African Experience
There has been a recent upsurge in popularity of Judicial Codes in Africa most recently in Namibia. The Code adopted in Tanzania in 1984 is innovative in that it was not a legislative mandate. The code indicates it was adopted by the Judges' and Magistrates' Conference.(34)
The Kenyan Code was also the result of judicial interest. The unanimous sentiments expressed at a seminar for Judges and Magistrates was instrumental in the creation and adoption of the Code.
It is critical to the effectiveness of the Code that it have the respect and the support of the judiciary. The development of a code also allows judges and magistrates the opportunity to address concerns and establish guidelines. The support and interest in establishing and adopting codes by the Judicial Officers in Africa is indicative of the importance of and desire for standards.
PART III: THE BENEFICIARIES
A. The Public
i. Public Confidence
The judiciary does not exist in isolation. It is an institution of particular societies. Judges require the respect and faith of the communities they serve to be effective. Public confidence is critical to the administration of justice.
In a democracy, the enforcement of judicial decrees and orders ultimately depends upon the public co-operation. The level of co-operation, in turn depends upon a widely held perception that judges decide cases impartially... . Should the citizenry conclude, even erroneously, that cases were decided on the basis of favouritism or prejudice rather than according to law and fact, then regiments would be necessary to enforce judgements. (35)
The public at large benefits from having an understanding of the rigorous ethical standards to which a judge is held. Analogous to the oft sighted "Justice must not only be done but be seen to be done" is the fact that judges must not only be ethical but must be seen to be ethical. Educating the community about the role of judges is gaining recognition as a key element of maintaining the respect for the Judiciary.(36) Making judges accountable for their conduct is another vital aspect of maintaining public respect for judges.
ii. An American Study: Perception of Bias
An argument is often made that judges are capable of regulating their own behaviour and that a code of ethics is not necessary. However, a judge may not be aware of how his or her activities are perceived. As an example of the importance of Judicial Codes of Conduct this paper will now discuss a recent revision to the American Model Code of Judicial Conduct. Among the revisions made to the code in 1990 was a change in canon 2 by the addition of Section 2C. This section indicates:
A judge shall not hold membership in any organization that practices invidious discrimination on the basis of sex, religion or national origin. (37)
A situation arose in Louisiana, one of the states of the United States, which allowed a more detailed examination of the ramifications of this section. Due to litigation concerning the new section of the Code, the president of a public opinion and research consulting company was hired to conduct opinion polls in the area.(38) This study provides an excellent example of public perception about the judiciary and its role.
In this study a Federal District Judge for the Eastern District of Louisiana was an active member of an elite New Orleans social club. This club was involved in litigation with the City of New Orleans and the Judge also presided over several lawsuits involving members of this club as participants or counsel in the lawsuits.
The methodology of the study was to interview between September 8th and 12th, 1993, a total of 814 residents in thirteen parishes (counties in New Orleans). The results of this study indicate that a high percentage of the people surveyed believed that the judge's treatment of issues and his decision would be influenced by membership in the club. This study clearly demonstrates that the public is responsive to personal choices a judge makes, and the public's reaction to these choices affects its perception of the justice system. Matters of ethical conduct do have a clear impact on the general perception about the legitimacy of judicial decision-making.
iii. Impartiality: Objectifying the Standard of Conduct
Another feature of Judicial Codes of Conduct is that they objectify the conduct of judges. As the Court indicated in Pepsico, Inc. v. McMillan:(39)
The test for an appearance of partiality is meant to be an objective one, whether an objective, disinterested observer fully informed of the relevant facts would entertain a significant doubt that the judge in question was impartial. (40)
This creates a standard of a reasonable observer and not the subjective standard of a particular judge. This standard is more likely to prevent situations where the public questions the impartiality of a judge. This will increase the likelihood of public confidence in the Judiciary. Codes can provide a concrete measure of whether judges are achieving the high standards which we expect of them.
The existence of judicial codes provides a tremendous opportunity for educating the public about the ethical standards to which the judiciary holds itself. It can be argued that while justice has a face it should not have a personality. A Judicial Code of Ethics reassures the public that decisions are not the result of an individual judges preferences and biases. Justice must not only be blind but also appear to be blind. Judicial Codes can help reinforce this view.
B. The Judiciary
i. Judicial Education: Bringing Ethics into the Light
A concern that faces the individual judge is how to identify and define the standard of behaviour to which he or she should adhere. Many jurisdictions, including Canada, lack a judicial code of conduct that would provide guidance. Mr. Justice Thomas indicates that one of the challenges that judicial ethics face is the lack of a forum for discussion.
In the absence of known criteria, one tends to approach questions of conduct from a personal standpoint. Perhaps judges hesitate to discuss this topic because discussion may invite scrutiny of the judge's own conduct, values and taste; and there is grave danger of treading on the sensitivity of other judges. (41)
Ethical behaviour is often considered a very personal characteristic and judges may be reluctant to engage in discussions on the topic. Judges, especially judges in rural or isolated areas, may lack the opportunity to regularly communicate with their peers. This prevents the exchange of experience and information.
The development, updating and implementation of Judicial Codes of Conduct provide an opportunity for discussion within the Judiciary, without individual judges feeling they are under attack. The American experience with revision demonstrates that the use of a standard formula of conduct can be an opportunity to solicit feedback from other organizations and the public. The African codes provide the same kind of opportunity as is evidenced by educational sessions such as the ones for which this paper was prepared.
ii. Misunderstandings and loss of respect for the Judiciary.
A judge in our society holds a tenuous position: he or she must be like Caesar's wife;(42) or risk embarrassment and censure at the hands of the community and the media. In an increasingly complex society a Code of Judicial Ethics can provide a base for judges to assess their behaviour. It can provide a map (be it ever so general) in largely uncharted seas.
Secure in the knowledge that they can avoid unethical behaviour by following set standards, judges may make decisions in their judicial role or in their private lives that will accord with what people expect of a judge. As indicated in the Louisiana example, public perception can tarnish the ethical judge as easily as the corrupt judge. A code of ethics that addresses concerns and perceptions of the public is of considerable assistance to the well-meaning judge who makes an innocuous but subsequently unwise choice. It is difficult to adhere to standards of conduct if they are not known in advance.
Mr. Justice Thomas discussed some of the ethical concerns that may arise based on what seems like very innocuous behaviour. These include general community involvement, judges advocating certain causes or judges acting as a character witness.(43) According to Constance Dove, executive Director of the California Judges Association: "Judges do not feel confident that they know what the rules are."(44) This situation is likely to be bad for morale as well as performance.
When the American Bar Association's Model Code of Judicial Ethics was revised in 1990 it included more commentary.(45) "The Code greatly increases the use of Commentary to give additional guidance and examples to judges." (46) The commentary is particularly useful in providing guidance to judges. The commentary gives the realistic and practical guidance that general statements of ethical principles may lack.
An example of this type of revision would be a section dealing with spouses and close personal relations of a judge. There is recognition of the reality that in many families both parties work and the commentary provides assistance in balancing the judicial role with the reality of a judge's family life. The Code removes the judge from ethical isolation and allows him/her to draw on the experience of other judges and surveys of the public to determine the appropriate behaviour. This area is also an illustration of how ethical standards are culturally specific. The concept of the family and the extent to which it should be separated from public life may be quite different in an African country than it is in North America.
In a recent Canadian inquiry into judicial misconduct(47) the judge attempted to excuse his behaviour by indicating he was unaware that such conduct was intolerable. One of his arguments was that in his cultural background there was a different view about what constituted acceptable physical contact in the work place. It is unfortunate that very often the misconduct is inadvertent.
Rather than wilful or knowing violation, most judges who violate judicial ethics do so through inadvertence or pressure of time, failure to recognize the ethical issue or even from ignorance of rules of judicial ethics. (48)
A Judicial Code of Conduct would provide judges with the ability to assess their behaviour against standards of conduct. The existence of a Code protects the unwary but innocent judge and helps to expose the unethical. However, the codes are only a beginning and must be the focus of ongoing discussion and evolution.
PART IV: ETHICAL REALITIES: ISSUES
The effectiveness of Judicial Codes of Conduct depend on how realistic the standards are. Codes must be sensitive to different jurisdictions, and the different situations faced by judges. They must also be sensitive to the different national contexts in which the code is to operate. The following are some examples of concerns that would have to be addressed in developing codes of conduct.
A. Rural Judges
Canada is a large and in some cases sparsely populated country. A real concern in the establishment of judicial standards is the recognition of the differences in the situation between a judge in an urban area and a judge in a rural area. In a rural area judges often know the community well and were, prior to their appointment, active in community affairs. These rural judges do not have the luxury of leaving their judicial persona at the office. Their views and attitudes are common knowledge in the community and their conduct is assessed on that basis. A difficulty with a standard Code of Ethics is that it may ignore the great disparity that may exist between urban and rural settings. The revised American Code provides some assistance in this area by explicitly recognizing the reality of the rural judge.(49) This provides a useful example of the flexibility and pragmatism of the Judicial Codes.
B. Public v. Private Lives
The America Bar Association Code of Judicial Conduct indicates in Canon 2 that a judge should avoid the appearance of impropriety in all his [her] activities. There is a recognition that a judge must accept restrictions on his [her] conduct which would be viewed as burdensome and onerous by an ordinary citizen. Increased media attention and public scrutiny allows judges very little privacy and the behaviour of judges, even in their private capacity, can have serious effects on the public's perception of their impartiality. The Louisiana situation referred to earlier demonstrates the profound effect a personal choice can have on the ability of a judge to fulfil his or her role.
There is a recognition of the reality of judicial office in the Code of Conduct for Magistrates in South Africa. The preamble indicated that:
Magistrates as judicial officers are required to maintain high standards of conduct in both their professional and personal capacities(50)
Rule 4 provides:
A Magistrate acts at all times (also in his/her private capacity) in a manner which upholds and promotes the good name, dignity and esteem of the office of the magistrate and the administration of justice. [Emphasis added](51)
Clearly it is a well accepted fact that judicial office does not end at the courtroom door. This makes the educational and guidance features of Codes of Conduct even more important.
C. New Issues: Ethical Considerations
The reality of judicial office is changing. Judges are being drawn into sensitive social issues and are coming under increased attack by the media.
One could point to many examples to show that we are living in an era of confused values, what some have called an ethical crisis. New situations arise in all areas of society that require constant reexamination of ethical constraints. The judiciary is not immune to this process. Judges need to continually discuss and evaluate their role and conduct. (52)
The increase in the use of Bills of Rights, or Charters of Rights in many countries has put highly controversial cases before the judiciary. These cases excite strong and diverse opinion. A code of ethics can be helpful in ensuring that both the public and the judges understand the appropriate roles that judges should play. The code can also assist judges in formulating appropriate responses to increased community and media pressures.
In Canada, many moral issues are being brought to Court through the use of Charter challenges to existing laws or government action. Examples of such issues are euthanasia, abortion, and religious and gender equality. The sensitivity of these issues make it imperative that the judiciary be seen as unbiased. Whether or not a country has a Charter of Rights, citizens are increasingly turning to judges to resolve difficult moral and ethical problems.
The American revisions to their Code to include Canon 2, section 2(c) and Canon 3B(5) indicate how serious issues like discriminatory behaviour are, and how adverse the perception of personal prejudices can be to public confidence in the justice system.(53) The rise in human rights legislation, Charters and other constitutional entrenchments of rights, demonstrates an increased awareness of the importance of equality. The new American Canons are a reflection of changing societal values. The codification of these values ensures that judges will be aware of their ethical obligations and reassures the public about the standards of conduct that are required. It is important that judicial codes be flexible and responsive to ethical changes in society. The response to sexual harassment is another change in society that is important for judicial codes to recognize.
The importance of equality and the absence of discrimination is also recognized in the Code of Conduct for Judicial Officers - Kenya in Rule 2:
They [judicial officers] should not be improperly influenced by:
This provision is an extremely broad mandate against discriminatory conduct.
i. Sexual Harassment
There is an increased recognition in society that sexual harassment is intolerable. This position is reflected in the standards of conduct we expect from judicial officers. The Hryciuk Inquiry demonstrated Canada's unwillingness to tolerate sexual harassment in its courts. The inquiry found Hryciuk to be an excellent judge, but his misconduct was sufficient to bring into question his ethics. The effect of this conduct on public perception was sufficient to prevent the public from having confidence in Hryciuk's ability to act in his judicial capacity. He was accordingly disciplined for his judicial misconduct.
Judge Hryciuk raised as a defence a lack of awareness of the offensiveness of his conduct. This type of scenario illustrates the importance of making commitments against sexual harassment clear. Unfortunately the American Code is the only code that I have researched, to specifically address the issue of sexual harassment. This is a 1990 revision to the American Code. Canon 3, B(5) provides:
A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by word or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge's direction and control to do so. (55)
The mandate against sexual harassment is clarified in the commentary accompanying the Canon:
A judge must refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment and must require the same standard of conduct of others subject to the judges direction and control.(56)
This commentary clarifies the conduct required of judges. If such a code had existed in Canada at the time of the misconduct by Judge Hryciuk then the Judge would have been unable to claim that he was unaware that his conduct was inappropriate. A clear statement prevents retrospective analysis of judicial behaviour.
The existence of a written code with express provision on judicial behaviour would have been extremely helpful to the complainants in this case. It became apparent that the misconduct had occurred for sometime before it was reported. A code of ethics would have clarified the inappropriateness of the conduct. Knowing what the rules are is better for all parties concerned with judicial behaviour.
ii. Judiciary and the Media
Unfortunately one has only to turn on the television or pick up a magazine to see the increased prominence of trials and judicial proceedings. This creates some difficulty for judges, particularly if no guidance is provided in dealing with increased media attention. In recent years Canadian and American courtrooms have been sources of media attention. The traditional dominion of judges in their courtrooms must give way to some coherent pattern of behaviour.
Despite the increasingly high profile of media attention in the courtroom, this was not explicitly addressed in the recent American revision of the Judicial Code. The issue was addressed in the South African and Namibian Codes. Rule 13 provides:
A Magistrate shall not without the permission of the Commission permit the proceedings in his/her court to be televised or broadcast or taped for that purpose, or that photographs be taken or television cameras or similar apparatus be used in his/her court during the court proceedings, during recess and immediately prior to or after court sitting. (57)
Two examples, sexual harassment and media attention, demonstrate the flexibility and responsiveness of Judicial Codes. There are differences across various codes because the societies whose judiciary must adhere to these standards sometimes face different pressures. It is very important that the judicial codes reflect the realities of the countries in which the affected judges serve. Nonethless, there may be some common issues. It is with this in mind that I present the following detailed case study on judicial free speech in Canada. There are common issues but the appropriate responses may vary from country to country.
PART V: JUDICIAL SPEECH: A CANADIAN CASE STUDY IN THE NEED FOR GUIDANCE
As the media increases their coverage of sensitive cases and their comments about the conduct of judges provokes frustration for the judges, there is a serious question about what is appropriate conduct for judges. A well recognized principle of the Code of Judicial Conduct, Canon No. 3A(6) [American Bar association] is that out of court a judge does not make any public comment to the press or elsewhere, about a case in which he or she is involved.
It is important for these principles to be articulated and accepted. This will help prevent the unwary and frustrated judge from speaking out when the interests of justice are best served by his or her silence. Another area where judges must take care is in making comments out of court that will lead to the fear that issues are being pre-judged. However, as with many aspects of judicial ethics there are different views about when a judge should speak and when he (she) should be silent.
I have developed at some length an argument about the proper limits of judicial free speech in an earlier article and I shall not repeat these arguments here.(58) However, I will briefly restate my view on this issue which I should warn is a non-traditional one. A more traditional view would be that a judge should say very little outside the courtroom and exercise considerable free speech within the courtroom. I challenge this common wisdom especially in light of Canada's Charter of Rights. I will leave to you to judge the applicability of my views in other national contexts or indeed, even the Canadian one.
Not only has the Charter enhanced the policymaking role of the judge, it has also made Canadians a more rightsconscious people. Freedom of expression is guaranteed in section 2(b) of the Charter as follows:
Everyone has the following fundamental freedoms:
While it is obvious that the Charter has given judges new responsibilities, it is less obvious that it has given them rights, including freedom of expression. Clearly judges are encompassed in the term "everyone" used in section 2 of the Charter. The real question becomes what are the reasonable limits on judicial free speech, pursuant to section 1 of the Charter. Only the most extreme advocate of judicial objectivity would suggest that a judge does not have the right to "thought, belief and opinion," so the real area of contention is the expression of views. The essential limits on the right of judges to express themselves are the nature of the judicial office and the perception of the judge's role.
Justice Sopinka argues that the arrival of the Charter has not only enhanced the right of judges to speak on broader social issues but also imposed an obligation to do so in some contexts:
While I support the rationale for some restrictions on speech, the public must also realize that judges do have views on issues and must have the confidence that the judiciary is capable of setting aside personal political views when such views threaten to interfere with their impartiality in deciding particular cases. (59)
By contrast, the late Chief Justice Laskin continued to adhere to the restrained view of judicial speech even after the arrival of the Charter in 1982:
Surely there must be one stance, and that is absolute abstention, except possibly where the role of a court is itself brought into question. Otherwise, a judge who feels so strongly on political issues that he must speak out is best advised to resign from the bench. He cannot be allowed to speak from the shelter of a "judgeship." (60)
In its Commentaries on Judicial Conduct the Canadian Judicial Council appears to come down more on the side of Laskin and implicitly endorse a more monastic approach to judicial free speech -- especially after the Charter:
We agree that the Charter has tended to blur the distinction between political and legal issues. Almost any issue may now become the subject of litigation. We see that as a reason for judges to be more, rather than less, circumspect than in the past. A personal view which has been publicly proclaimed is less easily set aside, when it becomes part of an issue before the court than one privately held. And what of the perception of the litigants and public? They should not be required to have on their case a judge who is a declared opponent of the point of view they come to court to present. If a judge, who has publicly proclaimed a personal view, later gives a judgment expressing the same view, will the unsuccessful party, and the public in general, not tend to conclude that the personal view, publicly expressed, affected the judge's impartiality? (61)
The Canadian Judicial Council appears to be more concerned with appearances than with whether judges hold views. Views publicly expressed are what is worrisome. This sort of obfuscation of the reality of judging, however, becomes a selffulfilling prophecy: the public comes to expect that judges should have no views, when indeed they do.
Knowing where individual judges stand on broad social and political issues is crucial to the administration of justice. Once one accepts that judges have views on broad social and political issues, the litigants are better served by knowing the judge's perspective in advance. The guarantee of freedom of expression contained within the Charter should thus expand and protect judicial expression outside of the court. The judge must, of course, not prejudge the issue at hand. On the other side of the coin, the equality values entrenched in the Charter provide some limitations to judicial expression in and out of court. Prejudicial comments or views issued from the Bench regarding vulnerable groups, specifically those protected in section 15 of the Charter, ought to be censured. Needless to say, the values expressed by the Charter provide guidelines to judicial speech uttered outside the courtroom as well.
I tend to agree with Justice Sopinka that the Charter gives more rather than less scope for judicial free speech. This surely must be true with respect to what judges say in their reasons for judgment. Furthermore, there should be a distinction between "incourt" and "outofcourt" judicial free speech. Even before the Charter judges have had a wide reign with respect to "incourt" comments; it is "out-ofcourt" speech that has produced most of the controversy. Ironically, the Charter may place greater limits on "incourt" speech to promote values such as equality, while expanding the "outof-court" freedom of expression of the judge. Any expansion of judicial free speech must be accompanied by effective mechanisms of accountability for abuse of this freedom. Judicial speech and accountability should go hand in hand.
The Charter has ushered in an era in which judges are required to make more policyoriented decisions and acknowledge that this is what they are doing. Heightened public awareness of judicial influence has generated an increased need for judges to be more open regarding their views and perspectives. There is a growing call for accountability, a concept traditionally divorced from the judicial branch of government. People want to know who these judges are and call them to account when they misbehave.
The Canadian experience supports the view that judges are censured for impropriety outside the courtroom more often than they are evaluated on their incourt conduct. It seems that the independence of the judge within the courtroom provides a security almost beyond reproach. In court, judges appear to have free reign over their speech and, until recently, were rarely criticized. In some cases the judge's incourt remarks were highly offensive. Restrictions are placed on judges with respect to how they publicly express themselves outside of court, and certainly on the topics they choose to discuss.
Examples of outofcourt censure include the case of Justice Thomas Berger, who was swiftly reprimanded and openly criticized by his peers for publicly criticizing the absence of Aboriginal rights in the proposed Constitution Act, 1982. The result of the Berger Inquiry is difficult to reconcile with that of the Marshall Inquiry, where judges were perceived as guilty of serious misjudgment in the performance of their duties yet were never disciplined. The critical difference appears to be that the latter involved incourt conduct, in the form of comments in the judgment itself.(62)
Although many judges agree that the administration of justice and issues relating to the judicial system are appropriate topics for judicial comment, there is no consensus on the scope and extent of that freedom of expression. When and where such public expressions cross the threshold dividing the judicial from the political remains at the core of the debate.
The Resolutions of the Canadian Judicial Council regarding the inquiry into allegations of judicial misconduct on the part of Justice Thomas Berger had this to say regarding appropriate judicial expression: "[M]embers of the judiciary should avoid taking part in controversial political discussions except only in respect of matters that directly affect the operation of the Courts."(63)
While agreeing that caution must be exercised when criticizing government policy, Justice Sopinka does not believe that such statements clarify the situation. Ultimately, he states,
The extent to which a judge does so must be left to the individual judgment of the judge. Surely a judge entrusted with the extraordinary powers which I have mentioned should be permitted to decide what the limits are of his or her public participation. (64)
Whether judges are for or against an expansion of judicial speech outside the courts, most do concur on one point: that limits should be selfimposed rather than external. Such a view goes some distance to explain the judicial resistance to a codification of rules concerning judicial conduct and speech.
Interestingly, restraint is not only applicable while a judge is active on the Bench. Once a judge, always a judge restrictions are applied to speech and conduct even upon retirement or resignation. On this point, Justice Sopinka completely disagrees.
Certainly upon resignation or retirement, judges should have the freedom to speak on any issue within the ambit of protected expression. It is difficult enough to give up temporarily, freedoms held by society at large, and it would be very difficult to recruit quality people for the judiciary if a judge permanently lost his or her right to freedom of speech upon appointment. Sometimes I wonder whether such strictures are more an excuse to protect the tranquillity of judges than because of some lofty goal to cerebral impartiality.(65)
The Charter can provide a concrete framework in which to evaluate judicial speech. The reasonable limits clause of the Charter would justify limitations on judicial free speech. One such limit is that the speech of the judge should be consistent with his or her institutional role. There are other limits as well. Three such limits have been outlined by Justice Sopinka in his address "Freedom of Speech Under Attack." These include (a) penal sanctions, (b) civil sanctions, and (c) political correctness.
Highlighting specific cases in which the Supreme Court has decided that certain types of free speech must give way to other and more pressing societal concerns, Justice Sopinka describes how criminal sanctions limit free speech. R. v. Keegstra,(66) the Prostitution Reference(67)and R. v. Butler(68) have attempted to define these limits narrowly, so as to restrict freedom of expression as little as possible. (69) The balancing of such competing values, although difficult, is recognized by the courts as a valid exercise in a democratic society. Such a balance must also be found when dealing with the activities and expression of members of the Bench. It would be a rare case in which a judge was subject to a criminal sanction as a consequence of her or his expression.
The second limit examined by Justice Sopinka is civil sanctions. Civil proceedings, in the form of libel or slander actions, are an attempt to balance the protection of individual reputations against the values of freedom of expression.(70) Although not addressing how this would affect the judiciary, Justice Sopinka explains that libel laws, as old as the protection of free speech itself, are an effective check on malicious or false comment: "As has been recognized in the protection of all rights, the use of a right or freedom by one person must yield if that use causes injury to another." (71)
The third limit described by Justice Sopinka is that created by "demands for political correctness."(72) Before examining Justice Sopinka's concern regarding "political correctness" it is important to comment on the phrase itself. Political correctness has become a derogatory term. By using such a phrase, one is assumed to be referring to the dogmatic approach it now signifies, rather than to the valid goals of those who wish to promote, encourage and entrench the equality rights of all Canadians within our society. These two conceptions must not be confused. Although I will be using the term political correctness in a limited way throughout this article, I do so only to address the concerns of those who believe it to be a restriction on their freedom of expression. I do not adhere to the notion that the values of many are being restricted by the values of a few; nor do I condone using the spectre of "political correctness" to justify suppressing the views of those supposedly guilty of imposing it. We have always had an unwritten code of "political correctness" but because it coincided with the views of the established majority, there was a limited outcry. The real complaint may be that outsiders are now trying to set the agenda!
Justice Sopinka points out that political correctness, as a movement, has not been entirely negative. In fact, it has been an effective force in sensitizing the judiciary to issues and perspectives of which they may have otherwise remained ignorant. He also addresses the concern that such a movement reveals an intolerance for freedom of speech and warns
that overzealous dissection of every word that drops from the bench, with a view to finding some indicia of political incorrectness ... may result in decisions that are politically correct but not legally and factually correct. A judge who is looking over his or her shoulder may decide a case in a way that will avoid the Judicial Council rather than accord with the material presented. (73)
When one takes account of outside groups clamouring for politically correct speech and conduct on the part of judges, there are clear dangers. There is, however, a clear distinction between general claims to represent the public interest and efforts to make judges conform to the entrenched values of the Charter, such as equality. A demand that judges refrain from sexist, racist or homophobic speech is not a call for "political correctness" but rather a call for conformity with the Charter. This is a theme to which I will return when considering the impact of lobby groups as an informal mechanism of accountability for judges. For the present, the point is that demands for conformity with Charter values are of a different order than demands that judges be "politically correct."
In reviewing the activities and speech of judges both on and off the Bench, one persistent dilemma emerges. This is the lack of consistency in imposing limits on judicial speech and conduct. In order to illustrate this point, I will briefly review four cases in which judges have been the subjects of formal complaints and investigation by judicial councils. These cases illustrate that judicial free speech and accountability are issues worthy of attention, with the potential to impact significantly on those involved with the judicial system.
The investigation into Justice Thomas Berger's conduct in 1981,(74) and the inquiry into the Court of Appeal Judges on the Donald Marshall Jr. case in 1990, (75) will be discussed in a later section. The complaints against Judge Andrée Ruffo in Quebec and those laid against Judge Raymond Bartlett in Nova Scotia are also addressed later in this article. However, for the purposes of this discussion on the limits to judicial free speech, it is important to provide a brief summary of each. These cases reveal the ad hoc approach of judicial councils when faced with disciplinary complaints about judges.
i. The Berger Inquiry: Outofcourt speech
After the government omitted Aboriginal rights protection and a veto for Quebec in the Constitutional Agreement reached in 1981, Justice Thomas Berger was publicly critical of the decision. A complaint was lodged with then Chief Justice Bora Laskin by Justice Addy, who thought that Berger's conduct was not appropriate for a judge. An Inquiry Committee, set up in March 1982, found that Berger's conduct warranted removal, but the Council itself did not go this far, preferring instead to state that judges should steer clear of political debates in the future. This directive, however, is not very helpful in clarifying the parameters of judicial free speech.
By today's standards the decision rendered in the Berger Inquiry, though short of removal, was indeed harsh, if not wrong. Justice Berger was commenting on a broad social issue that most believe is now crucial to the survival and dignity of this nation. To object to the omission of Aboriginal rights in the Constitution, especially in light of the Charter, seems more a fulfilment of the judicial role than a denial of it. Given Justice Berger's impressive track record on Aboriginal rights and his consistent advocacy of justice for the First Nations, his public statement did not reveal anything that was not already known about his views. Where was the damage to his role as a judge?(76)
The Berger affair raises some important questions regarding the limits to judicial free speech. Although it was not so very long ago, it does seem that there would not be the same outcry if a judge were to comment in a similar way today. However, even though some restrictions may be relaxed, there is still no clear set of guidelines for the judiciary as well as the public and the press to refer to when dealing with judicial free speech.
ii. The Nova Scotia Court of Appeal Inquiry (Marshall Affair): Incourt speech
The conduct of the Court of Appeal judges on the Donald Marshall Jr. case dealt with incourt rather than outof court speech. At issue were the comments made in the Court of Appeal's reasons for judgment in acquitting Donald Marshall Jr. of the charge of murder, which essentially blamed him for being the author of his own misfortune. The Royal Commission on the Wrongful Conviction of Donald Marshall Jr. was highly critical of the performance of the Nova Scotia Court of Appeal and the wording of its judgment acquitting Marshall. One result of this criticism was a complaint to the Canadian Judicial Council and the formation of an Inquiry Committee which unofficially reprimanded the Appeal Court judges, but did not call for their removal from the bench.
By contrast, the criticism of Thomas Berger's outofcourt speech, which did not obstruct the administration of justice, appears not only extreme but misplaced. Surely inappropriate speech within a court can do more harm to the administration of justice than a speech delivered outside the courtroom. The effect of the Nova Scotia Court of Appeal judgment was to diminish the value of the compensation awarded to Donald Marshall Jr. compensation he deserved after spending 11 years in jail for a crime he did not commit. To make matters worse, the justices of the Nova Scotia Court of Appeal were using their position of power on the Bench to make comments about a member of a vulnerable minority in society. Donald Marshall Jr., as a Micmac from Sydney, had come to expect no better from the Nova Scotia justice system, but he deserved more. This was a serious, even if unintended, abuse of judicial power.
Another problem with judicial speech in the courtroom and its broad immunity from attack is that some judges (fortunately a minority) exhibit racism and sexism. Judicial speech which violates the basic principles of equality enshrined in the Charter should be severely censured. The equality guarantees of the Charter are an important guide to the proper scope of freedom of expression in the courtroom. The independence of the judge to speak freely in her or his courtroom and judgments must be limited by the dictates of the Charter. Short of this, judges should also be very conscious of the position of power from which they speak.
iii. Judge Ruffo: Activism in and out of court
The complaints laid against Judge Andrée Ruffo of the Court of Quebec, Youth Division, dealt with her unorthodox decisions and the manner in which she ran her court. They also addressed Judge Ruffo's outofcourt speech regarding specific cases, and her public comments regarding the Quebec child welfare system. There is no doubt that Judge Ruffo has a different view of the role of the judge than many of her colleagues. She also acts upon her own vision of the judicial role.
The fact that Judge Ruffo has a penchant for speaking publicly about cases pending, or giving thinly disguised details of cases that she has heard, is cause for justifiable concern. Obviously, issues concerning children are raised in Judge Ruffo's court and she is knowledgeable about child welfare issues and the inadequacies of the present system. The extent to which she ought to be allowed to publicly address these issues in broader terms is not so clear.
There is little doubt that if the standards applied in the Berger Inquiry were used to deal with Judge Ruffo her tenure on the Bench would be in considerable jeopardy. She has not just entered the political controversy, she has in many instances created the controversy. It is hard to disagree with the value of crusading on behalf of children and doing it with the energy and commitment of Judge Ruffo. The question is whether one can do this kind of political advocacy and still be an effective judge. In the current judicial system I have to conclude, reluctantly, that Judge Ruffo's conduct is not appropriate for a judge. To legitimize such political activism from the Bench would require a total redesign of the judicial role, in a way that would create more problems than it solves. If judges can use the Bench as a base for political activism for causes that society supports, they can equally use it to promote causes that the broader society opposes.(77) There are also questions about the proper ways in which a judge can pursue his or her goals.
iv. The Bartlett Inquiry: Speech beyond the pale
The case of Family Court Judge Raymond Bartlett in Nova Scotia concerned incourt speech of such an outrageous nature that the judge was eventually removed from the Bench. The fact that it was not until a women's group complained that anything was done about Judge Bartlett is an issue in itself, Judge Raymond Bartlett, a selfprofessed bornagain Christian, used his court as a forum in which to air his views. His lectures were primarily directed at women and related to their proper roles within the family and society. He berated women for not obeying their husbands when some of these women were seeking redress from abusive spouses or other related divorce issues. Judge Bartlett's speech was not hidden nor, presumably, was it condoned by those within the legal community. In fact, Judge Bartlett's reputation preceded him and some lawyers said they had known about his behaviour for as long as 10 years.(78)
In a far more extreme form than the Nova Scotia Court of Appeal Inquiry (Marshall Affair), the Bartlett case provides an example of judges using their power to victimize vulnerable people. It must have been very painful for the women appearing before Judge Bartlett to be lectured about the virtue of being obedient to a spouse who has beaten her and her children. Indeed, the cruel irony of the situation was heightened when Judge Bartlett was himself charged with assaulting his spouse. The fact that he was finally removed in early January of 1987 after a formal investigation by the provincial Judicial Council is only a partial victory. It cannot satisfy critics who point out that Judge Bartlett had remained on the Bench for far too long. There is a serious need to make judges accountable for their conduct and speech within the courtroom.
v. Quo vadis on judicial speech?
No consistent approach to complaints emerges from the brief analysis of these four cases. The laying of the complaint, the timing and source of the complaint, and the subsequent process reveal the mechanisms of accountability to be unpredictable in approach and application. Each case dealt with judicial speech in some form, but the conclusions reached by the various judicial councils stressed different aspects of the speech, and ranged in their pronouncements regarding its gravity. This brief look at pertinent cases reveals the vagueness of the guidelines for limiting judicial free speech. Although most judges are clear about certain longaccepted limits to judicial speech and conduct (e.g., partisan participation, business activities, etc.), they will admit that there is a wide range of judicial speech which has never been classified as appropriate or inappropriate. It does not seem fair, either to the public or to the members of the Bench, that one must wait until the limits are breached in order to discover the limits to judicial free speech.
It is obvious that a formalized set of standards cannot, and should not, attempt to categorize or anticipate every type of offensive or inappropriate speech. Neither are speech and conduct indivisible concepts. A Canadian judicial code of ethics could formalize the broad statements to which all within the judiciary adhere. These would emphasize the principle of judicial independence as well as the integrity of the judicial role. The challenge will be to strike a balance between generalities and details that will provide some practical guidance for all concerned.
The American Bar Association Model of Judicial Conduct developed in 1990 states that the American Canons are designed to establish standards of ethical conduct in a broad manner.
Canon 1 requires that judges uphold the integrity and independence of the judiciary. Canon 2 calls upon judges to avoid impropriety and the appearance of impropriety in all activities, and Canon 3 requires judges to perform the duties of their office impartially and diligently. (79)
Issues of appropriate speech would fall under provisions regarding judicial propriety and/or performing duties in an impartial manner. A perusal of some of the cases involving judicial discipline in the United States shows that both incourt and outofcourt conduct is monitored with perhaps more emphasis on incourt behaviour. Although independence is paramount, accountability of the judiciary is also considered crucial in maintaining public confidence. The fear that a code would prove inflexible, as times and accepted behaviour change, has not proved highly problematic in the United States. Conduct not perceived as wrongful when the American Code was written 25 years ago is now being pursued in commission procedures. There is no reason to believe that it will not continue to evolve by both amendment and interpretation.
As is typical in Canada, a middle ground should be sought which draws from the British traditions as well as the experiences of the United States. The Charter enunciates the principles and values which we prize in Canada. Thus it is vital that the judiciary be active in promoting such values. Just as the Charter evolves, so too do the roles of judges and the standards they must maintain. A Canadian code of ethics would provide a much needed reference point by which to ascertain the limits to judicial speech. Such rules should be clear but would not prevent the evolution of the judicial role or impose a single set of ideals regarding appropriate judicial speech. A framework within which to operate will not halt the evolution of standards and norms but rather strengthen public confidence in a judiciary that can and does take responsibility for its actions and speech.
Judges should be heard as well as seen, but they should also be accountable for what they say both inside and outside the courtroom. Examples such as that involving Judge Raymond Bartlett confirm the need for closer scrutiny of judicial speech and conduct in the courts. A set of clear guidelines would not only change the official disciplinary process from one that is ad hoc in its approach to one that is consistent, but would also inform judges about the limits of their speech. Increased accountability as well as openness on certain levels will not only improve public confidence in a system that appears ever more removed, but will ultimately ensure the continued independence and integrity of the courts.
PART VI: ENFORCEMENT
This paper clearly establishes the importance of ethical behaviour in the Judiciary it is now necessary to look at what procedures are required to enforce the standards. There is little point in articulating clear standards unless there is a practical consequence for deviating from them.
i. The Tennessee Judicial Code
The Tennessee Code provides mechanisms for the enforcement of the Code of Judicial Conduct.(80) This code provides that violations of the code are brought before the Court of the Judiciary. The Court of the Judiciary is a statutory court which has the power to investigate, hear, and determine charges of judicial misconduct.(81) The Court is composed of fourteen individuals including judges, lawyers and lay persons.(82)
The Court has a broad range of remedies. The court has the power to sanction by formal reprimand, cease and desist orders, suspension with pay for a period not exceeding thirty day, or by recommending removal from office to the legislature.(83) Tennessee is fairly typical of the approach to disciplining judges for misconduct in the United States, although there are variations from state to state.
ii. The Kenya Experience
The Judicial Code in Kenya provides comprehensive sanction provisions. Unlike the Tennessee sanctions, which were relegated to a Supplement, the Kenyan sanctions are included as part of the Code. The Judicial Code provides for a wide variety of sanctions ranging from dismissal to reprimand. The relevant section of the Kenyan Code reads as follows:
Where an officer has contravened any of foregoing provisions of this code he is liable to suffer one or more of the following punishment.
(i) dismissal in accordance with part iv of the Service Commission Act - cap 185
(ii) reduction in rank or seniority(demotion)
(iii) stoppage of increment in rank.
(iv) withholding of increment.
(v) deferment of increment.
(vi) reprimand (including severe reprimand)
(vii) no recovery of the cost of any or part of the cost of any loss or damage caused by default or negligence.(84)
The inclusion of the sanctions within the body of the provisions allows the judges to be very aware of the potential consequences of their misconduct. This also demonstrates the seriousness of the Code provisions. Another innovative feature of the Kenyan Code is the inclusion in the section entitled EXPLANATIONS of the following provision:
(ii) Violation of any of the rules contained in this code shall constitute judicial misconduct or misbehaviour calling for disciplinary action.(85)
Such a provision helps to alleviate uncertainty that judges may feel when faced with a code of conduct. Also it confirms the importance of adhering to the standards set and the certainty of negative consequences is a violation of the standards is proven.
iii. The Canadian Experience
The powers of the Court of the Judiciary are much broader than those of the Canadian Judicial Council. This is a body of federally appointed judges who are established by statute to judge their peers. In legal form they are an advisory body who merely recommend to Parliament, which has the ultimate power of removal. The test for judicial misconduct which was articulated in Nova Scotia Court of Appeal Inquiry (Marshal Affair) is :
Is the conduct alleged so manifestly and profoundly destructive of the concept of impartiality, integrity and independence of the judicial role, that public confidence would be sufficiently undermined to render the judge incapable of executing judicial office.(86)
Lacking express standards of behaviour this test must be applied to a wide variety of misconduct.
The only remedial power the Canadian Judicial Council has is to recommend removal. They lack of an intermediate sanction power, including even a reprimand power is a problem. The ultimate removal must come as a result of a joint address of both Houses of the Canadian Parliament. The severity of removal prevents judges from learning from their past misconduct. Either the conduct is not severe enough to justify removal, so the judges are not sanctioned, or the judges are removed. In neither case can they learn from their mistakes.
Another weakness of the Canadian Judicial Council is the composition of the Council. The Council is composed solely of judges. Self-regulation may add to a perception that judges are getting off. This can have an adverse effect on public confidence.(87) There has never been a case of a federal judge in Canada being removed from office.
The Ontario Court of Justice Act(88) permits the following dispositions where the Ontario Judicial Council has completed a hearing and found that there has been misconduct by the Judge in question: warning, reprimand, ordered apology, the taking of a specific measure such as receiving education or treatment, as a condition of continuing to sit as a judge, suspension with pay for any period, suspension without pay but with benefits for up to thirty days, and the recommendation of removal. These broad remedial powers provide an opportunity to deal with judicial misconduct effectively, without necessarily being required to remove judges. Moreover, this broad range of powers means judges are more likely to be sanctioned for conduct that is not sufficient to justify removal.
A wide range of sanctions makes having an express standard of conduct more important. Judges who are going to face a variety of penalties deserve to know the types of behaviour that could result in sanctions. Codes of Conduct provide this type of information to judges. In Tennessee a judge can submit questions to a Ethics committee to get an opinion. This seems like a good preventive mechanism that could be easily incorporated in judicial discipline procedures.
This paper has attempted to present some of the ethical issues that are facing the Judiciary. The paper explores the usefulness of Judicial Codes of Conduct as an answer to uncertainty and increased public scrutiny. There is an unfortunate perception that Judicial Codes are some how a punishment for judges who do not meet the ethical standards of office.
This is an attempt to demonstrate that codes of conduct are a useful and increasingly necessary tool for judges. The values and standards required of a judge vary with changes in the society that underlies the judiciary and it is important that judges be aware of these changes. This paper has looked at some of the ethical issues facing judges and the importance of appropriately responding to these issues.
The Honorable Mr. Justice Howard T. Markey, former Chair of the Advisory Committee of Codes of Conduct of the Judicial Conference of the United States, eloquently summed up the ultimate goal of ethical awareness and education.
As I have said previously, I remember hearing, as a boy, the expression "As sober as a Judge."(89) Whether pre-schooling in judicial ethics is instituted or some other means is adopted to facilitate the efforts of judges to earn respect, I look forward to the happy day when the popular expression will be a new and widely recognized truism: "As Ethical as a Judge."
Judicial Codes of conduct provide a mechanism to help bring Justice Markey's sincerest desire to fruition. It is hoped that the ideas and issues raised in this paper will help the Judiciary recognize the importance of developing, maintaining and, most importantly, honouring a code of conduct in keeping with the ethical obligations of Judicial Office. Whatever standards are ultimately adopted, they must be suitable to the national context. In that regard the various African Codes may be more useful to countries in Africa, than either the American or Canadian experiences. I do hope that Commonwealth judges can benefit from sharing their experiences and it is in that spirit that this paper has been written.