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.

CALE/ACEJ Board Member Appointed to the Superior Court of Quebec

CALE/ACEJ is proud to announce that CALE/ACEJ Board member Marie-Claude Rigaud was appointed as a Judge of the Superior Court of Quebec for the district of Montréal on May 26, 2021. An official announcement of the appointment and a brief biography of Justice Rigaud can be found here.

As a result of her appointment, Justice Rigaud will be stepping down from the CALE/ACEJ Board. We thank her for her many years of service and for all of her many important and collegial contributions to the Canadian legal ethics community. Congratulations Justice Rigaud!

Recent Legal Ethics Columns on Slaw.ca

In recent months, CALE/ACEJ members have continued to write columns on legal ethics topics at Slaw.ca.

In relation to the Law Society of Ontario’s approval of a Regulatory Sandbox for Innovative Technological Services (see, here, for more information), both Brooke MacKenzie and Amy Salyzyn wrote columns that can be found here and here.

Additionally, Deanne Sowter has written about the perils of over-identifying with a client when acting as a family law lawyer and Noel Semple has written about “the accountability gap” in our civil justice system.

CALE/ACEJ Annual Conference

The Bora Laskin Faculty of Law at Lakehead University is looking forward to hosting the CALE/ACEJ Annual Conference on October 22-23, 2021.

Please hold the date and promote the conference in your networks, encouraging participation and of course submissions in response to the upcoming calls for papers.  

The conference will take place either entirely virtually or in a hybrid format, conditions permitting. Details about the format of the conference, travel advice and hotel information (again, conditions permitting) will be posted the summer.

Recent Legal Ethics Columns on Slaw.ca

In December and January, four legal ethics columns were posted on Slaw.ca that may be of interest to website readers:

  1. Why Do We Regulate Lawyers? by Brooke MacKenzie (January 14, 2021): Exploring the fundamental purposes of lawyer regulation and “suggest[ing] that both regulators and their critics sometimes lose sight of the “why” of lawyer regulation when caught up in the details of how to regulate legal services and their providers”
  2. Is It Time to Regulate Collaborate Practice? by Deanne Sowter (January 6, 2021): Considering whether collaborative practice in family law should be regulated.
  3. A Taxonomy for Lawyer Technological Competence by Amy Salyzyn (December 18, 2020): Outlining a six part taxonomy for thinking about technologically competent lawyering.
  4. If You See Something, Say Nothing: Why Lawyers Don’t Report to the Law Society by Noel Semple (December 2, 2020): Exploring why lawyers do not report misconduct and canvassing possible solutions.

2020 CALE/ACEJ Awards

At the 2020 CALE/ACEJ annual conference, we presented our annual awards.

The first award presented was the CALE/ACEJ Best Paper Award for an outstanding paper written by an emerging scholar in the field of legal ethics. Papers submitted for this award are assessed based on their originality, the thoroughness of their research and analysis, and the extent to which they advance thinking on topics of importance in the field, nationally or internationally.

We are pleased to announce that Deanne Sowter was this year’s award recipient for her paper “The Future Harm Exception: Coercive Control as Serious Psychological Harm and the Challenge for Lawyers’ Ethics” This research for this paper was supported by the 2019/20 OBA Foundation Chief Justice of Ontario Fellowship in Legal Ethics and Professionalism Studies. The question that Deanne asks in this paper is whether a lawyer can use the future harm exception to prevent her client from coercively controlling his former spouse. Congratulations to Deanne!

The second award presented was the CALE/ACEJ Lifetime Achievement Award. This award is meant to recognize sustained accomplishments in the field of legal ethics and professionalism by a member of CALE/ACEJ.

We are pleased to announce that the winner of this award is Richard Devlin. Richard Devlin was one of the founders of CALE/ACEJ. He co-hosted the very first CALE/ACEJ conference at Dalhousie University in 2006 along with Jocelyn Downie, which was attended by about 15 people. CALE/ACEJ was officially created four years later, and the first official meeting was held at ILEC IV in Banff in 2012. Richard served as the founding President of CALE/ACEJ (2011-2015) and he is currently the Chair of the Board of Directors (2015-Present). In short, throughout CALE/ACEJ’s lifetime Richard has been involved in a leadership capacity.

His contributions to teaching and scholarship in the area of legal ethics have been and continue to be profound. Richard is a regular speaker on issues related to legal ethics, with a particular emphasis on judicial ethics, and he has published over 100 papers, chapters, and essays since 1985.

As one of the letters in submitted in support of Richard’s award stated:

“I genuinely believe that Richard deserves the Lifetime Achievement Award for not just sustained accomplishments but rather for sustained, extraordinary, catalytic, and transformative accomplishments in the field of legal ethics and professionalism”

Those who nominated Richard for the award also emphasized the time and care he has taken to mentor junior members of the legal ethics academic community. His nominators wrote:

“As a matter of common practice, Richard takes the time to reach out and support members of the community when they face difficult challenges within the academy, and when they need to make difficult decisions. He is always there. He also takes the time to read our work and provide thoughtful feedback, even when the world is quite literally upside down and he has an otherwise onerous list of things on his plate.”

So many of us have benefited from Richard’s mentorship and collegiality. Congratulations, Richard!

Update on 2020 CALE/ACEJ Annual Conference: We are moving to virtual format!

The Board of CALE/ACEJ has made the decision to move the Annual Conference that was scheduled to be hosted by the Bora Laskin Faculty of Law, Lakehead University, in Thunder Bay, Ontario, October 22-24, 2020 to a one-day virtual conference to take place Friday October 23, 2020.

Later this summer, we will circulate more information about registration and the platform that we will be using. Registration is not currently available.

Please also note that the original deadline for calls for research and teaching presentations was June 15, 2020, but we are now extending the deadline to June 30, 2020. Further details on the call for presentations and who to contact can be found here: https://ethicsincanada.com/2020/04/05/cale-2020-conference-call-for-presentation-proposals/.