TO PARTICIPATE OR NOT TO PARTICIPATE: JUDICIAL INVOLVEMENT IN THE COMMUNITY.

• Author: Rowe, Justice Malcolm
• Position: Canada

1. Introduction

   Judges have long had to grapple with the limits of their community involvement. Few professionals would ask themselves whether they are to "behave like a monk [or] be a eunuch [or] live in silent solitude [or] embark ... to live on a planet other than the earth." (1) Yet, for many years, judges have, in effect, been asking such questions of themselves. Often, judges are chosen in recognition of their significant contributions to their communities. Yet, upon appointment, many have been concerned with whether continuing to make these same contributions would call into question their impartiality, their independence, and even their integrity.

   In considering the proper limits of judges' involvement in the community, we will not focus on a judge's public behaviour. That is simple; judges should never undermine the offices they hold by their behaviour in public. Instead, this paper examines the degree to which judges should engage, if at all, in voluntary associations, in political organizations, in matters of public controversy, and in advocating their private interests. Guidance is available, usually in written codes of conduct put in place by bodies overseeing judicial conduct. As well, there is the less formal but quite important guidance provided by one's chief justice. But, much is left to one's own good judgment. Judges have much to offer their communities, but a "line" ... however difficult to draw ... exists between acceptable and unacceptable community involvement. This line is "not capable of mathematical determination" (2)--yet, each judge must take care not to cross it.

   We will proceed in three stages, beginning with a brief overview of judges' security of tenure in Canada. Next, we will describe key elements of the ethical principles established by the Canadian Judicial Council (CJC). Finally, we will examine various types of community involvement through case studies.

2. Security of Tenure

   For the sake of simplicity, we will focus on superior courts. However, the discussion applies with slight modifications to other courts, notably provincial courts.

   Canadian judges have security of tenure. This has a long history, dating back to the Act of Settlement of 1701 (3) and the Commissions and Salaries of Judges Act of 1760. (4) These statutes established that judges would remain in office "during good behaviour," rather than at the pleasure of the monarch, and that judges would continue to hold office notwithstanding the death of the monarch. (5) Security of tenure allows judges to decide cases independently, notwithstanding government or public disapproval. (6) This independence allows judges "to stand above the political fray, immune to the pushes, pulls, and swings of popular opinion." (7)

   Superior court judges can be removed only by a vote of the Senate and the House of Commons. (8) No judge since 1867 has been removed by this process, albeit a few have resigned in the face of this eventuality. (9)

   In recent decades, Parliament has made clear that it will act only on the recommendation of the CJC. This body is composed of chief justices from the superior courts in all the provinces and is chaired by the Chief Justice of Canada. (10) The CJC is created by the Judges Act and derives its authority to investigate complaints and recommend removal from that statute. (11) It has authority over more than 1100 federally appointed judges. (12)

   Through a committee structure, the CJC investigates complaints made against federally appointed judges; such complaints can be made by a member of the public or by the Attorney General. (13) Most complaints are ill-founded and are speedily dismissed. Those that warrant investigation trigger procedures aimed at ensuring fairness to the judge. In serious cases, the committee can recommend to the CJC that a judge be removed for reasons of (a) infirmity; (b) misconduct; (c) failing to undertake his or her duties; or (d) otherwise having been placed in a position incompatible with the due execution of his or her office. (14) The CJC has interpreted its task as involving two steps:

   1) Determining if the judge has become "incapacitated or disabled from the due execution of their office"; and

   2) Determining if public confidence in the judge's ability to discharge the duties of his or her office has been undermined to such an extent that a recommendation for removal is warranted. (15)

   The test at the second step is the following: "Is the conduct so manifestly and profoundly destructive of the concept of the impartiality, integrity and independence of the judicial role, that public confidence would be sufficiently undermined to render the judge incapable of executing the judicial office?" (16) Given the stringency of that test, it is difficult to imagine how a judge's involvement in a community organization or the like could warrant a recommendation for removal--however, as we will see, reasonable disagreements can easily arise as to the appropriateness of extra-judicial involvement, and some judges have come close to being removed.

   While the Judges Act does not contemplate lesser sanctions than recommending a judge's removal, in practice such sanctions are imposed. These can be quite mild, in effect words of guidance or caution set out in correspondence from the CJC. It may call for counselling or additional training. In more serious circumstances, a reprimand may issue. In almost all instances, the goal is to restore the judge to the proper conduct of his or her role. The approach is strongly oriented to be supportive and remedial, while at the same time providing clear guidance as to conduct.

   Of course, the vast majority of situations where conduct may be questioned never get to the CJC. They are dealt with informally by the chief justice. But, if more formal measures appear warranted, they are undertaken by the CJC as a group and not by the individual chief justice.

3. Ethical Guidelines and Principles

   Guidance for federally appointed judges is provided in the Judges Act and in a set of principles developed by the CJC called Ethical Principles for judges ("Principles"). (17) The Principles are currently under review, and a revised set was initially expected to be released in the spring of 2020. (18) A draft set of revised principles was released in November 2019 ("Draft Revised Principles"). (19) Provincial judicial councils operate in a parallel way for provincially appointed judges; they have adopted similar principles to guide conduct (see, e.g., Ontario Court of Justice, Principles of Judicial Office', (20) Provincial Court of British Columbia, Code of Judicial Ethics (21)).

   Section 55 of the Judges Act contains an overarching rule:

   No judge shall, either directly or indirectly, for himself or herself or others, engage in any occupation or business other than his or her judicial duties, but every judge shall devote himself or herself exclusively to those judicial duties. (22) The CJC's Principles effectively expand on what this rule means. The Principles are advisory: they are not a list of prohibited behaviours. (23) However, they are a "useful touchstone of generally accepted ethical standards in the judicial community guiding judges in how they should act on and off the Bench" and set out a general framework that is relevant to assessing allegations of improper conduct. (24)

   The limitations set out in the Judges Act and the Principles stem from the twin requirements of independence and impartiality. As a former Chief Justice of Canada put it, judicial independence is not a privilege that appertains to the holder of a judicial office; rather, it is a guarantee to citizens that there is an impartial adjudicator to resolve their disputes or hear their challenges to abuse of authority. (25) The limitations on judicial conduct call for a higher standard than is expected from other citizens. A judge's conduct must be "free from impropriety or the suggestion of impropriety; it should be, as far as is humanly possible, beyond reproach." (26) Judges are expected to tolerate restrictions on the rights of the individual that other citizens do not. (27) However, they are entitled to expect as few restrictions on their freedoms as is possible and consistent with proper conduct, given their office. (28)

4. The Tension Underlying Community Involvement

   When it comes to community involvement by judges, two competing considerations are at play. On the one hand, a judge should not be isolated from his or her community. On the other hand, community involvement must be modulated so as to avoid negatively affecting the standing of the judge and the judiciary. Striking the right balance is somewhat contextual.

   In 2015, in the context of an allegation of judicial bias, the Supreme Court of Canada wrote that judges can and should participate in their communities: "Membership in an association affiliated with the interests of a particular race, nationality, religion, or language is not, without more, a basis for concluding that a perception of bias can reasonably be said to arise." (29)

   Indeed, the Supreme Court recognized the value of such experiences:

   A judge's identity and experiences are an important part of who he or she is, and neither neutrality nor impartiality is inherently compromised by them. Justice is the aspirational application of law to life. Judges should be encouraged to experience, learn and understand *"life"--their own and those whose lives reflect different realities. (30) Withdrawal from the community can actually hinder a judge's ability to carry out his or her duties. Judging is not "an abstract or mechanical process.... [It] is an intensely human process." (31) Judges are called on to make decisions mindful of the standards of the community; thus, to render decisions regarding fundamental freedoms requires an understanding of societal attitudes and competing interests. (32) Assessing damages, sentencing offenders, and giving effect to the...