FOOTNOTES (MacKay)

1

Walt Whitman, "Great are the Myths" in Leaves of Grass (Philadelphia: Sherman & Co., 1900).

2

Jeffrey M. Shaman, "Judicial Ethics" (1988-89), 2 Georgetown Journal of Legal Ethics 1 at 1.

3

Justice James Burrows Thomas, Judicial Ethics in Australia (Sydney: The Law Book Company, 1988).

4

20 Edw. III, c.1, The Statutes at Large, vol. 2, p.21.

5

Promissory Oaths Act, 1868 (U.K.) s.4, The Reports Public General Statutes (1868), p.519. See J.B. Thomas, Judicial Ethics in Australia (Sydney: The Law Book Company Limited, 1988), Appendix A.

6

B. Laskin, "On Being a Judge" (Address to University of Toronto Faculty of Law, Goodman Memorial Lecture, February 8-10, 1973) at 6.

7

P. McCormick & I. Greene, Judges and Judging: Inside the Judicial System (Toronto: Lorimer, 1990) c.4, at 103.

8

B. Dickson, "The Role and Function of Judges" (1980), 14 L. Soc. Gaz. 138 at 154.

9

M.R. MacGuigan, "Sources of Judicial Decision-Making and Judicial Activism" in S. Martin & K. Mahoney, eds., Equality and Judicial Neutrality (Toronto: Carswell, 1987) at 31.

10

B. Laskin, "Address to the Seminar for Journalists" (Ottawa, February 1978) at 6.

11

M.E. Gold, "The Mask of Objectivity: Politics and Rhetoric in the Supreme Court of Canada" (1985) 7 Supreme Court L. Rev. 455.

12

R. Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), and Law's Empire (Cambridge: Harvard University Press, 1986).

13

B.L. Shientag, "The Virtue of Impartiality" in G.R. Winters ed., Handbook for Judges (American Judicature Society, 1975) cited in B. Wilson, "Will Women Judges Really Make a Difference?" (1990) 28 Osgood Hall L.J. 507 at 508-509.

14

I am using bias in the sense of perspective or approach, not prejudice. The old, pure objective model does not admit such biases, with the result that judges do not try to be conscious of them.

15

Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11.

16

R. Abella, "Public Policy and Canada's Judges: The Impact of the Charter of Rights and Freedoms" (1986) 20 L. Soc. Gaz. 217.

17

(1933), 62 F.2d. 798, at 799-800 (2d. Cir.)

18

Ontario Commission of Inquiry Re: His Honor Judge W.P. Hryciuk a Judge of the Ontario Court (Provincial Division), Report by The Honorable Madame Justice J. MacFarland, Commissioner, 1993.

19

Datinder S. Sodhi, The Canadian Law Dictionary (Toronto: Law and Business Publications (Canada) Inc., 1980).

20

Henry Campbell Black, Black's Law Dictionary (6th Ed.) (St. Paul, Minn.: West Publishing Co., 1990).

21

Wesley Gilmer, Gilmer's Revision: The Law Dictionary (6th Ed.) (Cincinnati: Anderson Publishing Co., 1986).

22

John S. James, Stroud's Judicial Dictionary of Words and Phrases (5th Ed.) (London: Sweet & Maxwell Ltd.).

23

James B. Thomas, Judicial Ethics in Australia (Sydney: The Law Book Company Limited, 1988).

24

(1990-91) 4 Georgetown Journal of Legal Ethics 731.

25

Ibid., at 770.

26

A. Wayne MacKay, "Opinion to the Canadian Bar Association Standing Committee on Equality on Recommendations Concerning Judicial Discipline", June 1995.

27

Code of Conduct For Judicial Officers - Kenya, as faxed to the Commonwealth Judicial Education Institute.

28

Supra note 3, at 86.

29

R.E. McGarvie, "The Ways Available to the Judicial Arm of Government to preserve Judicial Independence", (1992) 1 Journal of Judicial Administration 236. See R.D. Nicholson, "Judicial Independence and Accountability: Can they Co-exist?", (1993) The Australian Law Journal 404 at 404.

30

R.D. Nicholson, "Judicial Independence and Accountability: Can they co-exist?" (1993), 67 The Australian Law Journal 404 at 426.

31

Code of Conduct For Judicial Officers - Kenya, as faxed to the Commonwealth Judicial Education Institute.

32

A.W. MacKay, "Judicial Free Speech and Accountability: Should Judges Be Seen and Not Heard?" (1993), 3 Nat. J. of Const. Law 159.

33

Vivi L. Dilweg, "How the Model Code Was Revised" (1991), 30 Judges Journal 8 at 10.

34

Code of Conduct for Judiciary Officers of Tanzania as faxed to the Commonwealth Judicial Education Institute.

35

Lubet, "Judicial Ethics and Private Lives" (1984-1985) 79 N.W. Uni. Law Rev. 983 at 986.

36

James A. Noe, "Public Education: A Judicial Imperative" (1993), 30 Judges Journal 28.

37

See Vivi L. Dilweg, "New Rules to Live By" (1991), 30 Judges Journal 8 at 10.

38

Appendix I to Memorandum in Support of Motion for Relief from Judgement, Travers Ins. Co. v. St. Jude Hosp. of Kenner, La., No. 90-1983 (E.D. La 1993). See Robert J. Alberts and Kenneth C. Fonte, "Is Section 2C of The Model Code of Judicial Conduct Justified? An Empirical Study of the Impropriety of Judges Belonging to Exclusive Clubs" (1995) 8 Georgetown Journal of Legal Ethics 597.

39

(1985), 764 F.2d. 458 (7th Cir).

40

Ibid., at 460.

41

Supra note 3, at 5.

42

Ref. Shakespeare's Julius Caesar. Caesar's wife must be above reproach or suspicion.

43

Supra note 3, at 37.

44

Barbara L. Morgenstern, "An Uncomfortable Distance" (1994), 80 A.B.A. J. 60 (2) at 60.

45

The inclusion of commentary is unique to the American codes. The Namibian Code of Conduct for Magistrate, the Code of Conduct for Magistrates for the Republic of South Africa, and the Code of Conduct for Judiciary Officers of Tanzania do not contain contain commentary although the Tanzanian code does provide a more detailed list of acceptable behaviours. The Kenya Code of Conduct for Judicial Officers provides the most detailed and comprehensive Rules but does not include commentary.

46

Vivi L. Dilweg, "New Rules to Live By" (1991), 30 The Judges Journal 8 at 9.

47

Supra note 18.

48

Howard T. Markey, "A Need for Continuing Education in Judicial Ethics" (1993-94), 28 Valparaiso University Law Review 647 at 650.

49

Stephen Goldspiel, "Planning for Change: What Rural Judges Want" (1991), 30 Judges Journal 21.

50

Code of Conduct for Magistrates, as faxed to the Commonwealth Judicial Education Institute.

51

Ibid.

52

Howard T. Markey, "A Need for Continuing Education in Judicial Ethics" (1993-94), 28 Valparaiso University Law Review 647 at 651.

53

Model Code of Professional Responsibility and Code of Judicial Conduct, (ABA Special Committee on Evaluation of Ethical Standards, 1990).

54

Code of Conduct For Judicial Officers - Kenya, as faxed to the Commonwealth Judicial Education Institute.

55

Model Code of Professional Responsibility and Code of Judicial Conduct, (ABA Special Committee on Evaluation of Ethical Standards, 1990).

56

Ibid.

57

Code of Conduct for Magistrates, as faxed to the Commonwealth Judicial Education Institute.

58

Supra note 32.

59

J. Sopinka, "Must a Judge be a Monk?", Address to Canadian Bar Assoc., Toronto, March 3, 1989, at 8.

60

B. Laskin, "Berger and Free Speech of the Judge" (Address to the Canadian Bar Association Annual Meeting, Toronto, September 2, 1982) at 10.

61

Canadian Judicial Council, Commentaries on Judicial Conduct (Cowansville Que.: Yvon Blais, 1991).

62

The Kilmuir Rules in England, which until recently forbade judges to be interviewed without first seeking permission from the Lord Chancellor, produced this comment from Justice Sopinka of the Canadian Supreme Court: "If they [judges] can't speak in public without making fools of themselves, then why allow them to do it in their reasons for judgment." J. Sopinka, "Freedom of Speech Under Attack" (Address to the Canadian Bar Association, Toronto, April 16, 1992) at 7.

63

Canadian Judicial Council Resolutions (1983), 28 McGill L.J. 379 at 379.

64

Supra note 59, at 10.

65

Ibid., at 11. There is an express reference to the position of the retired judge in the American Model Code of Judicial Conduct.

66

[1990] 3 S.C.R. 697.

67

Reference re Sections 193 & 195.1(1) of the Criminal Code (Canada), [1990] 1 S.C.R. 1123.

68

[1992] 1 S.C.R. 452.

69

J. Sopinka, "Freedom of Speech Under Attack", Address to the Canadian Bar Assoc., Toronto: April 16, 1992, at 3.

70

Ibid., at 4.

71

Ibid., at 5. This comment is interesting in light of Sopinka J.'s concurrence with the majority in R. v. Zundel, [1992] 2 S.C.R. 731.

72

Ibid., at 5.

73

Ibid., at 6.

74

Inquiry Committee (Canadian Judicial Council) established under the Judges Act to investigate the complaint against Justice Thomas Berger ("Berger Inquiry").

75

Inquiry Committee (Canadian Judicial Council) established under the Judges Act to investigate the complaint against the Court of Appeal Judges in the Donald Marshall Jr. case ("Nova Scotia Court of Appeal Inquiry (Marshall Affair)").

76

Perhaps the greater concern was that Berger was interjecting into a tense political debate; his voice was heard due to his judicial station, yet he was not an elected representative of the people. While the same conduct might attract attention today, the sanction would likely be minimal.

77

Judges need not be responsive to majority views, but there need to be some limits to their direct entry into the political debate. Justice Sopinka raised the concern that censoring speech may stifle the progress of ideas. This was expressed by John Stuart Mill in 1859.

Ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd, and it is certain that many opinions, now general, will be rejected by future ages, as it is that many, once general, are rejected by the present." Supra note 69, at 7.

78

Editorial, "Judging the Judges" The [Toronto] Globe and Mail (16 January 1987).

79

Y. Begue & C. Goldstein, "How Judges Get in Trouble" (1982) 12:2 Prov. Judges J. 8 at 8.

80

Tennessee Code Annotated Section 17-5-302 (Supp. 1992).

81

Tennessee Code Annotated Section 17-5-301(a) (Supp. 1992).

82

Tennessee Code Annotated Section 17-5-201 (Supp. 1992).

83

Tennessee Code Annotated Section 17-5-309 (Supp. 1992).

84

Code of Conduct For Judicial Officers - Kenya, as faxed to the Commonwealth Judicial Education Institute.

85

Ibid.

86

Allan McEachern," Report to the Canadian Judicial Council of the Inquiry Committee Established Pursuant to Subsection 63(1) of the Judges Act at the Request of the Attorney General of Nova Scotia", 1990.

87

A. Wayne MacKay, "Judicial Free speech and Accountability: Should Judges Be Seen but Not Heard?". [Proper supra to article.]

88

R.S.O. 1990, c.43 as am. S.O. 1994, c.12.

89

John Arbuthnot, Law is a Bottomless Pit (Oxford University Press 1976), (1712) (para. 2, ch. 6.).