Blogging Adjudicators and Allegations of Bias

Paul Daly on his blog Administrative Law Mattersrecently drew attention to a Federal Court decision on allegations of bias of an adjudicator who had written critical articles on the immigration and refugee system. It is not clear from the decision, but it is likely that the adjudicator’s comments predated his appointment.

What limits are there on adjudicators writing or speaking publicly after they have been appointed?

Justice Sopinka wrote and spoke about judges speaking publicly, famously stating that judges are not monks (or, presumably, nuns). For a good overview of the debate about judicial speech, see Professor Mackay’s study.

The Canadian Judicial Council in its Ethical Principles for Judgesrecognizes that restraining judicial public expression requires a balancing of freedom of expression with the importance of impartiality and independence (at D.5):

Judges on appointment do not surrender all of the rights to freedom of expression enjoyed by everyone else in Canada. But, the office of judge imposes restraints that are necessary to maintain public confidence in the impartiality and independence of the judiciary. In defining the appropriate degree of involvement of the judiciary in public debate, there are two fundamental considerations.The first is whether the judge’s involvement could reasonably undermine confidence in his or her impartiality.The second is whether such involvement may unnecessarily expose the judge to political attack or be inconsistent with the dignity of judicial office. If either is the case the judge should avoid such involvement.

The CJC limits the areas where judges may properly speak out about politically controversial matters to situation when the matter directly affects:

Tribunals’ codes of conduct and practices usually have some guidance for tribunal members. For example, the HRTO Code of Conductstates:

As Dean Sossin notes in a paper prepared for the CJC in 2008,judicial speech is evolving and a judiciary more involved in the community is now well accepted. Judicial speech that relates to pending litigation or a matter that could likely generate litigation remains more ambiguous. Sossin quotes from a CJC Report on Mr. Justice Flynnwho had been interviewed by a newspaper concerning a real estate transaction.

A judge speaking about a matter likely to come before the court harms both the judiciary as a whole and the sound administration of justice. Such conduct undoubtedly gives rise to a reasonable suspicion by litigants that if it came to a hearing the matter would probably not be handled with complete impartiality.

Sossin notes that restricting judges from speaking about matters that are “likely” to come before the court is an overly restrictive view in an increasingly litigious society. Such a test would result in an ever narrowing scope for judicial speech. Sossin states:

… The ethical issue should not be the likelihood of the matter coming to court but rather the likelihood that the public would lose confidence in the court being able to adjudicate the matter impartially.

Chief Justice Beverly McLachlan said, over ten years ago, the followingabout judicial speech:

Needless to say, there is a spectrum of opinion on the issue. What seems clear, however, is that, over the last twenty or so years, the entire spectrum has shifted in favour of a greater willingness on the part of judges to speak out. This shift is a reflection of the changing role of the judiciary, and perhaps a reflection of the fact that our democracies are becoming more participatory, with citizens taking a more active interest in the way social policy is made. Judges must always remember, however, that this new openness must not be permitted to sully their perceived or actual impartiality. We must be aware of the possibility that some may construe our words, justifiably or not, as an indication of prejudice. We must also be aware that our words may colour the public’s interpretation of our past or future judgments. The willingness of judges to speak out must be tempered by a constant awareness of lines that cannot be crossed, if the judiciary is to remain above the political fray and continue to effectively discharge its role of neutral, impartial, and independent decision-making. Judges are not politicians. Nor are they advocates. Judges are, quite simply, impartial decision-makers. That is their highest calling and they must, through all the changes, remain true to it.

In my view, these comments equally apply to adjudicators.