Most Canadians would be surprised to learn that there is no code of conduct for judges in Canada. The Canadian Judicial Council has issued a booklet entitled Ethical Principles for Judges, but these are only advisory in nature.
Lawyers, MPs, MPPs, public servants, doctors, teachers, students, and
now even paralegals are all bound by specific codes of conduct. Recent
events show that the need is pressing, both for the public and for the
judiciary, and judges should be added to this list.
A judicial code of conduct will help to strengthen the value of judicial impartiality within our legal system. Constitutionally, judicial impartiality is a basic principle of our legal system.
In the Provincial Judges Remuneration Reference (1997), the Supreme Court held that judicial independence applies to all judges in Canada whether they are members of s. 96 courts or of provincial ones. Judicial independence exists not as end in and of itself, but as a means of ensuring judicial impartiality.
Judicial impartiality and its opposite, judicial bias, have been in the public eye recently with the Canadian Judicial Council’s inquiry into the conduct of Justice Ted Matlow of the Superior Court of Justice.
As the Law Times reported (Jan. 14, 2008), Matlow correctly noted that judges in Canada are not bound by a specific code of ethics and he was unaware of any requirement to seek ethical advice. Matlow did not tell his fellow judges or counsel in the St. Clair streetcar case of his legal battle with the City of Toronto over development in his neighbouring community of Forest Hill. Matlow acknowledged his mistake, but the error was not his alone.
The Law Times reported that Matlow said it would have been better for him to have asked counsel at the outset of the St. Clair streetcar case to make submissions on whether he should have heard the case. I agree with Matlow that this should be the preferable procedure, but it is not the one that is counseled by the Canadian Judicial Council, the very body that is now sitting in judgments of his actions.
The council’s Ethical Principles for Judges - which, as Matlow correctly stated, do not bind him - generally looks askance at the notion that a judge should disclose a possible basis for disqualification to the parties and give them the opportunity to make submissions.
While this is the rule in England and Australia, and common in the U.S., it is not the practice in Canada. Justice Matlow cannot be faulted for failing to follow a procedure that the Canadian Judicial Counsel has disparaged.
The Matlow case demonstrates the need for a code of conduct for Canadian judges. The proposition should hardly be considered a radical one. Our American cousins have the Code of Conduct for United States Judges, which is applicable to their federally appointed judiciary.
It also has a federal judicial-disqualification statute (28 U.S.C. s. 455). In Quebec, Chapter 5 of the Code of Civil Procedure provides authoritative guidance on both the grounds and the procedure for judicial recusal. In Ontario, all we have is one meager provision in the Courts of Justice Act that says judges should not sit in appeal of their own cases.
Judicial impartiality is not simply about the legitimacy of the judgment in a particular case. It goes to the heart of the legitimacy of the administration of justice as a whole. In such matters, we should be seeking more transparency and more disclosure, both on particular ethical issues, such as a potential conflict of interest like in the Matlow case, as well as on the general subject of judicial conduct and ethics.
In Ontario, the Access to Justice Act, 2006 amended the Courts of Justice Act to require that the chief justice of the Ontario Court of Justice make available to the public any standards of conduct for judges. The Principles of Judicial Office are now available on that court’s web site. Prior to this enactment, the mere existence of such principles was not widely known and actually tracking down a copy of them was a challenge.
The federal Judges Act is completely silent on the question of the substance of judicial conduct, as opposed to setting up the procedure for an inquiry into the removal of a judge.
This is a good start, but transparency in the absence of a substantive code of conduct accomplishes little. A judicial code of conduct could either be enacted by the Legislature, as in the American and Quebec examples, or through the work of the Canadian Judicial Council with public input.
Whatever the Canadian Judicial Conduct decides in the Matlow case, it should take the opportunity to revisit its principles regarding the disclosure of potential conflicts and should embark on the broader project of establishing a code of conduct for judges in this country.
Adam Dodek is a visiting scholar at Osgoode Hall Law School. He can be reached at adodek@
sympatico.ca
