JUDICIAL ETHICS: EXPLORING MISCONDUCT AND ACCOUNTABILITY FOR JUDGES

JUDICIAL ETHICS: EXPLORING MISCONDUCT AND
ACCOUNTABILITY FOR JUDGES

A. Wayne MacKay*
Professor of Law
Dalhousie University

June, 1995

* This paper was prepared with the excellent research and drafting assistance of Tracy MacPhee, a third year law student at Dalhousie University.

TABLE OF CONTENTS
PART I: AN INTRODUCTION	PART V: JUDICIAL SPEECH: A CANADIAN CASE STUDY IN THE NEED FOR GUIDANCE
PART II: JUDICIAL CODES	PART VI: ENFORCEMENT
PART III: THE BENEFICIARIES	CONCLUSION
PART IV: ETHICAL REALITIES: ISSUES	FOOTNOTES

PART I: AN INTRODUCTION

A. The Judicial Tradition

 

Great is Justice !
Justice is not settled by legislators and laws – it is in the Soul;
It can not be varied by statutes, any more than love, pride, the attraction of gravity, can;
It is immutable – it does not depend on majorities – majorities or what not,
come at last before the same passionless and exact tribunal.

For justice are the grand natural lawyers, and perfect judges -it is in their Souls;
It is well assorted – they have not studied for nothing- the great includes the less;
They rule on the highest grounds – they oversee all eras, states, and administrations.

The perfect judge fears nothing – he [she] could go front to front before God;
Before the perfect judge all shall stand back – life and death shall stand back – heaven and hell shall stand back.

– Walt Whitman(1)

i. The Traditional Role of the Judge

The importance of the role of judges in our society is a respected and well recognized historical fact. Jeffrey M. Shaman, Director of the Center for Judicial Conduct, in his article “Judicial Ethics” indicates the power of judges in society. 

Judges are important public officials whose authority reaches every corner of society. Judges resolve disputes between people, and interpret and apply the law by which we live. Through that process, they define our rights and responsibilities, determine the distribution of vast amounts of public and private resources, and direct the actions of officials in other branches of government.(2)

 

The extraordinary power invested in the judicial office demands a high standard of behaviour. Perhaps the earliest affirmation of the requirements of conduct for judges, particularly commonwealth judges, can be found in a 1346 statute in the time of Edward III.(3) 

We have commanded all our justices that they shall from henceforth do equal law and execution of right to all our subjects, rich and poor, without having regard to any person, and without omitting to do right for any letters or commandments which may come to them from us, or from any other, or by any other cause.”(4)

 

For six hundred years the judiciary has been guided by these principles: the commitment to uphold the law and to do so in an impartial and unbiased manner. These fundamental principles are affirmed in the Oaths of Office that are required of judges. An example of the Oath required is that of the English Judiciary:

I do swear that I will well and truly serve our sovereign… and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will… .(5)

 

Despite the affirmation of these principles, they were not always adhered to. There was until 1725 the custom of judges selling offices which they had the power to appoint. More recently the Marshall Inquiry and the Hryciuk Inquiry brought into public controversy the behaviour of judges. When these principles are ignored they bring the justice system into disrepute. These two Canadian cases concerning alleged misconduct on the part of judges will be explored in more detail later in this piece.

ii. The Judicial Role: Myths and Realities

The late Chief Justice Bora Laskin listed a number of qualities which he felt were essential to being a good judge – character; integrity; honesty; industry; life experience, which can include politics; flexibility of mind; knowledge of the law; willingness to listen – but indicated that not all were easily ascertainable in advance, and some “must be taken on expectancy.” (6)

An empirical study of Alberta judges conducted by P. McCormick and I. Greene shows that knowledge of the law was not at the top of the list of desirable qualities identified by the judges themselves. McCormick and Greene asked judges, from the Provincial Court to the Court of Appeal, what characteristics they thought made good judges. The top seven most mentioned qualities in order of frequency were as follows: 

1. diligence: 21

2. courtesy: 13

3. empathy: 13

4. patience: 12

5. law knowledge: 11

6. intelligence: 10

7. fair play: 10 & 7

These judges esteemed humanity, patience and courtesy at roughly the same level as knowledge of the law or intelligence. Equally interesting were some of the qualities that were mentioned only once or twice: independence and objectivity. It is ironic to note that text writers and judicial councils tell us this is the very essence of being a judge. This clashes with the judicial self-assessment of the qualities required for good judging. Yet the traditional version of the judge continues to dominate the public’s perception. It is necessary to expose these myths if express codes of conduct are to be accepted.

One of the burdens of being a judge is that one is expected to rise above mere mortal status and dispense justice with an objectivity that borders on the divine. Independent from the pressures of everyday life and free of political influences, the judge is to resolve difficult legal disputes with the wisdom of a Solomon. This is the idealized version of the judge and is at best something to aspire to. It tends to obscure the human dimensions of the practical task of judging. 

I conclude by reminding you that the law has two faces. It is, firstly, a practical craft and one whose texture is highly technical and precise. It is, secondly, a human process whose polar star is the protection and development of human dignity. (8)

 

Given the high expectations that we have for judges, it is little wonder that we forget that they are human beings with the attendant strengths and weaknesses. Judges should aspire to objectivity but they cannot avoid being shaped by their background and life experiences. 

The element of objectivity clearly distinguishes the judiciary from the other branches of government and makes its members the logical choice to chair a government commission. Judges are prized for their impartiality and willingness to listen to all sides of an argument with an open mind. Allegations of bias or partiality would be fatal to public confidence in the judiciary, so cautious restraint was seen as the best road to neutrality. Judges were also expected to stay away from the legislative or policy role or engage in it in a very limited way: 

In spite of the judge’s role as legislator, justice must be administered according to law, not according to the judge’s individual sense of justice. The judge’s legislative competence is narrower than that of the legislator. His/her role is to legislate between the gaps, to fill the open spaces in the law. Thus the rule of law is maintained. (9)

 

Any suggestion that judges were adjudicating in a biased fashion was not taken lightly. When members of the press were impertinent enough to suggest that the Supreme Court of Canada, headed by the late Chief Justice Laskin, favoured the federal government in relation to the constitutional distribution of powers, the response was quick and to the point. Then Chief Justice Laskin responded as follows: 

The allegation is reckless in its implications that we have considerable freedom to give voice to our personal predilections and thus to political preferences. We have no such freedom, and it is a disservice to the present members of this Court and the work of those who have gone before us to suggest a federal bias because of federal appointment. Do we lean? Of course we do, in the direction in which the commands of the constitution take us, according to our individual understandings. (10)

 

Many judges and lawyers still accept this traditional view of the judge, but others have begun to question how objective one can really be ­ even in pursuit of the correct legal solution. (11) Even Professor Ronald Dworkin, who continues to have faith in the ability of the “Herculean judge” to distinguish between law and politics and find the correct legal answer, (12) admits that objectivity is more of an ideal than a reality. 

There is beginning to emerge a more modern conception of the role of the judge which is more tolerant of elements of subjectivity. Those who support this version of the judge argue that to completely factor out all subjective perceptions would make judging mechanical and inhuman. It would also be virtually impossible to do. This more subjective and human judge is not to be substituted for the objective judge. The challenge is to put the two roles together. The argument for representation in the judiciary follows from this paradigm: more perspectives leads to more open­mindedness, more ways of seeing things. This in turn destroys stereotypes that may otherwise not be confronted if the dominant image of objectivity is not challenged. 

Recognizing one’s biases may be the best route to impartial judging. Justice Wilson makes this point by citing the following passage from another judge: 

[T]he judge who realizes before listening to a case, that all men have a natural bias of mind and that thought is apt to be coloured by predilection is more likely to make a conscious effort at impartiality and dispassionateness than one who believes that his elevation to the bench makes him at once the dehumanized instrument of infallible logical truth. (13)

This approach to the role of the judge has important implications the scope of judicial ethics. If revealing one’s biases as a judge is a positive thing, then judicial expression should be encouraged rather than restrained. (14)

 

The traditional perspective sends a clear message that a judge must be restrained in most matters and where possible err on the side of caution. This has certainly been the traditional view of the judge, inherited from the United Kingdom, but does it apply to the Canada of the 1990’s and beyond? More particularly, should a judge continue to exercise restraint when the 1982 Canadian Charter of Rights and Freedoms(15) has cast the judge in the role of a significant policy-maker? (16) As the judge enters the uncharted territory of policy-making, it is even more important that the judge be guided by express standards of ethical conduct rather than rely upon his or her innate common sense. As judicial power grows so does the need to adhere to clear ethical standards.

Reference Full Paper here:

http://cjei.org/publications/mackay.html