Deadline for making submissions is February 14
Anyone wanting to contribute ideas to the Canadian Judicial Council as it revises its ethical principles for judges has less than two weeks left to do so, as the deadline for submissions is Feb. 14.
The draft Ethical Principles for Judges – the first major revision of the principles since they were published in 1998 – will be finalized this year once the CJC committee charged with reviewing them has made its recommendations to the Council.
“What we wanted to do is provide judges with a modern framework that offers guidance on ethical issues,” says Martel Popescul, Chief Justice of the Court of Queen’s Bench for Saskatchewan, who along with Deborah Smith, Chief Justice of the Supreme Court of Nova Scotia, was appointed by Chief Justice of Canada Richard Wagner to lead the committee to revise the ethical principles.
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“The reason for [the update] is obvious,” Chief Justice Popescul told Canadian Lawyer. “The work of judges is changing, and so too is the public environment in which judges perform their work.”
The process to revise the ethical principles has been underway for two or three years, says Justice Popescul. Last spring the CJC released a background paper to introduce the project to modernize the Ethical Principles for Judges. It presented six new and emerging themes on which the Council sought the public’s views. The results of the public consultation that spring were released in November.
The six new or evolving themes did not exist or were far less pertinent in 1998. They are:
Social media: “Needless to say, in 1998, there wasn't much in the way of social media,” the Saskatchewan chief justice says. “And now it's quite pervasive. We thought it would be appropriate to address that.” Survey respondents agreed that judges should exercise caution on social media, avoiding perceptions of bias, unprofessionalism and conflict of interest on current and future cases they were hearing and deciding.
Self-represented litigants: “There's a whole raft of self-represented litigants that are in our courts now, and that creates some nuances with respect to the ethical … and legal obligations of judges,” says Popescul. Survey respondents believed that self-represented litigants should be provided with adequate information on rules and regulations to a fair hearing, but not in such a way that might indicate bias.
Case management: “There's now a case management that is a lot more prevalent now than it was back then,” Popescul says. “Judges take a more active role in managing each and every case that goes through the system. And there's settlement conferences and judicial mediation, … again, not existent when I started to practise law in 1980.”
Professional development: There is an increased awareness of the need for, and an ethical obligation on judges “to be trained and educated, and to ensure they’re educating themselves.”
Public engagement: “Judges are engaging with the wider public to inform, to educate the public about the role of the judiciary and maintaining the rule of law,” Popescul says. “If people are more informed, they can better understand the system and better appreciate the system within which we work.”
Post-judicial return to practice: This issue was in the spotlight last year as several retired justices of the Supreme Court of Canada were approached to – and in two cases did – act in l’affaire Wilson-Raybould, when in February 2019 the then Attorney General of Canada and Minister of Justice resigned from cabinet after refusing SNC-Lavalin’s attempts to secure a deferred prosecution agreement, amid accusations of interference in her decision-making by the prime minister’s office.
“What we’re finding is that judges are tending to live longer, and are healthier, and they still have something to offer when they reach the mandatory retirement age, or choose to retire,” says Popescul. “It's important to address the question of post-judicial return to practice and discuss the limits that there may be on post-retirement professional activities.”
The CJC also engaged the legal community in updating the ethical principles.
“Prior to November we undertook an extensive consultation process with a variety of stakeholders, including members of the public, academics, the Canadian Superior Court Judges Association, the Provincial Court judges,” says Popescul; “and we met in person with a variety of these groups in May of 2019,”
The committee to revise the ethical princples of judges is comprised of several provincial chief justices, an associate chief justice, two Federal Court of Appeal justices and several superior court judges, as well as two legal academics: Daniel Jutras, from McGill University’s Faculty of Law, and Brent Cotter, a former dean of the College of Law at the University of Saskatchewan.
“the committee has consulted broadly with the Canadian Bar Association,” Canadian judges assocaitions, local bar associations, and more,says Popescul. “It’s not a … CJC project, where we're sitting in a closed room trying to decide” what to do. “We're consulting broadly to try to pick up the best ideas and the best themes from a variety of groups throughout the country.”
The revised Ethical Principles for Judges could be finalized as early as this spring, and if not then in the fall, Popescul told Canadian Lawyer, as the CJC meets in April and in September.