CALE/ACEJ’s Reaction to the Updated Ethical Principles for Judges

After several years in development, the Canadian Judicial Council (CJC) has published its updated Ethical Principles for Judges (EPJ).  The updated EPJ can be found here: https://cjc-ccm.ca/en/news/canadian-judicial-council-publishes-new-ethical-principles-judges.

CALE/ACEJ has followed the revision of the EPJ with considerable interest and has offered comments and suggestions to the CJC along the way.  Now that the updated EPJ have been released, it is time to take stock.

1.  Key Positive Changes

First, the previous version of EPJ did not impose any obligation of confidentiality on judges.  No matter how implicitly obvious such an obligation might seem, it is not appropriate to have such an important matter “go without saying” in a document of this nature.  It is laudable that the EPJ now includes the express obligation of confidentiality (2.B) and, notably, specify that “[c]onfidentiality and discretion extend past a judge’s departure from judicial office” (2.B.3).

Second, the updated EPJ contain greater discussion of judges’ obligations concerning access to justice.  The recognition that “judges have a responsibility to promote and foster access to justice” (2.D.1) is a welcome addition, as is the direction to judges to assist self-represented litigants by providing “information and reasonable assistance, proactively where appropriate, on procedural and evidentiary rules” (2.D.2).  Including discussion of these topics will contribute to a more context-sensitive judicial system.

Third, the EPJ now mention an obligation on judges to “develop and maintain proficiency with technology relevant to the nature and performance of their judicial duties” (3.C.5). Technological competence is essential in the current context in which judges work. Having relevant technological skills such as the ability to competently navigate virtual hearing platforms is now a key part of the judicial role. Judges also increasingly need to be acquainted with technologies and technological tools in relation to evidentiary issues.  Relatedly, judicial activity on social media is undeniably an area where additional ethical guidance is important.  The updated EPJ contain new discussion of how social media impacts a judge’s ethical obligations (1.B.2, 2.A.5, 4.B.2, 5.B.15 – 5.B.18).

Fourth, in discussing judicial duties, the EPJ now provide guidance to judges in relation to their work in settlement conferences and the judicial mediation of disputes.  It discusses specific objectives that judges should have in mind when engaging in non-adjudicative dispute resolution, including ensuring informed decision-making by the parties, transparency of processes and appropriateness of outcomes (i.e. ensuring that “the outcomes are not coercive, unconscionable, or illegal”) (5.A.10).  As noted in the EPJ, non-adjudicative dispute resolution is “[a]n expanding aspect of judicial responsibility”.

Fifth, with an increasing number of former judges returning to the practice of law, particularly as counsel to private firms, the EPJ have added guidance to address this phenomenon.  An important general statement is that “former judges should be attentive to the ways in which their post-judicial actions or activities could undermine public confidence in the judiciary” (5.E.2).  The EPJ also provide that “former judges should not appear as counsel before a court or tribunal in Canada” (5.E.2).  This is more restrictive than the current ethical rules for lawyers in most provinces.

In addition to the major changes noted above, the updated EPJ also provide enhanced and modernized guidance in multiple areas. For example, in discussing judicial wellness, the document explicitly references that judges should “take advantage of judicial assistance programs as appropriate” (3.D.2). Other examples include a new reference to an obligation for judges to “refrain from any form of harassment in the workplace” (2.E.2), the inclusion of references to “gender identity and expression” in sections addressing professional development (3.C.4) and equality in proceedings (4.B.1) and clarifying appropriate interactions between Chief Justices (and other judges with administrative responsibilities) and the executive branch of government (5.B.4).

It is also worth noting that although the updated EPJ retain the structure of the previous 1998 version in discussing judicial ethics under five main principles, there are differences in the wording of two of the five principles: the principle of “Integrity” is now called “Integrity and Respect” and the principle of “Diligence” is now called “Diligence and Competence”.  While these changes in wording are subtle, they reflect a more robust view of the ethical issues surrounding the judicial role. While a recognition that judges must act with respect and with competence was implicit in the previous version, it is helpful that the EPJ highlight these important ethical obligations.

Finally, the previous version of the EPJ contained several instances where the English version and the French version differed.  Some of these differences were in tone or emphasis but some went to the content.  Accordingly, it is very positive to see that the CJC has gone to considerable lengths to achieve consistency between the French and English versions (Introduction 11).

2.  Key Concerns

The CJC has maintained its longstanding approach that the EPJ do not constitute a binding code of conduct but rather is aspirational and advisory (Introduction 4).  It has done this despite the fact that much of the judicial conduct addressed in the EPJ is in no way what the best judges should hope to possibly achieve but, in reality, is a required standard which all judges should be routinely expected to meet.  Treating the EPJ as binding would in no way undermine the core principles of impartiality and independence.  CALE/ACEJ remains committed to the position that the EPJ should be explicitly binding and mandatory.  This would best enhance public confidence in the judiciary and the administration of justice.

The CJC has declined to explicitly reference Reconciliation and the judiciary’s role in establishing and maintaining a mutually respectful relationship between Indigenous and non-Indigenous peoples in Canada. Language has been added to provide that “Judges are expected to be alert to the history, experience and circumstances of Canada’s Indigenous peoples” (Introduction 8) and to note the importance of judges “studying the history, heritage and laws related to Indigenous peoples” (3.C.4).  These acknowledgements are important.  However, they are largely inward-looking, relating to conduct judges can perform on their own in isolation from Indigenous peoples.  The EPJ should explicitly refer to Canada’s commitment to actively pursue Reconciliation with Indigenous peoples and to the role of judges in so doing. CALE/ACEJ also reiterates its previous feedback to the CJC that referencing “Canada’s Indigenous people” may be perceived as having a possessive connotation, thereby generating concerns about ongoing implicit colonization, and should have been reworded.

3.  Thoughts for the Future

The update of the EPJ has been described as a generational event.  Indeed, the previous version (1998) was released in the previous millennium!  But as the pace of societal change increases, it is troubling to contemplate that another two decades could pass before any other revisions are made to the EPJ.  Most ethics or professionalism codes are not developed in this manner.  Rather, they are ongoing documents that are amended as needed.  The CJC should move in this direction.  It should be prepared to make incremental changes to the EPJ.  The experience in other professions, certainly not least with the Federation of Law Societies of Canada, is that appropriate consultation and reflection remains possible even while developing the document on an ongoing basis.

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