What should a judge do after the last ‘all rise’?

The CBA’s Judicial Issues Committee made this observation in a recent letter to the Canadian Judicial Council, in response to an invitation to comment on proposed changes to the EPJ.

Noting that the Federation of Law Societies of Canada is currently studying whether judges should be allowed to return to practice, the Committee points to a 2016 submission to the FLSC in which it suggested that “the principal issue is not whether former judges should be allowed to return to practice, but rather what aspects of post-judicial practice should be regulated and how.”

No Canadian jurisdiction prohibits judges from returning to practice, the 2016 submission says, adding that no one, including former judges, should be prevented from seeking employment unless there are “very strong and principled reasons for doing so.”

The problem that arises is one of perception – the possibility that a judge who previously presided over a particular court could benefit from bias in his or her favour when appearing before it. “The concern extends beyond individual cases to public perception of the integrity of the legal system,” the Committee says.

“We encourage the CJC to consider whether a post-judicial code of conduct, separate from the EPJ, might be a better mechanism for managing the expectations and accountabilities of former judges, whether they return to the practice of law or not.”

Also addressed in the letter to the CJC is the fundamental difference of opinion over the purpose of codes of conduct.

One theory is that codes of conduct are meant to inspire a higher standard of behaviour, and the language should therefore be aspirational. A competing theory, and one which with the CBA agrees, says the code of conduct should “give meaningful guidance” on the things people should actually do. As it stands, the English version of the EPJ is more aspirational, while the French is more directional. The CJC has said it plans to revise the French to more closely mirror the tone of the English.

CBA policy supports a model code of conduct for the judiciary “which articulates clear and specific guidance. At minimum, the CBA Committee encourages the CJC to consider more consistent and directive language for the EPJ, to be both meaningful for judicial practice and an aid to public understanding of the standards by which the judiciary holds itself to account.”

Other issues addressed in the letter include:

Social media use by judges – The Committee recommends the EPJ clarify the duty of individual judges with regard to social media, because of the impact their words can have on public confidence in the justice system. It also recommends educational programs be developed to help judges understand the “implications and accountabilities arising from their use of social media.”

Self-represented litigants – The EPJ should offer guidance on the boundaries between assisting and advocating for self-represented litigants.

Case management, settlement conferences and judicial mediation – Judges involved in settlement conferences and mediation should not preside over any trial of the issues, the Committee says.

Public engagement – Given the risk of perceived conflict when judges sit on the boards of civic and charitable organizations, the Committee says they should not do so except with the approval of their Chief Justice.

Professional development – The Committee believes judges have a duty to engage in continuing education.