(Re) Constructing Judicial Ethics in Canada

Richard Devlin

Abstract


Any discussion of judicial ethics and accountability -- whether it is at the state, national, or international level-inevitably requires engagement with two key ideals: impartiality and independence. Ideals are important because they can provide a trajectory for human action. But ideals can also be a problem because their generality and abstraction can cause one to prevaricate -- or even pontificate -- when it comes to the immediate and the pragmatic Indeed, there are times when ideals such as impartiality and independence can become false gods insofar as they promise salvation but ultimately, deliver little. Consequently, when one is asked to consider concrete questions of judicial ethics and accountability, such as those identified by the coordinators of this Symposium, too great a focus on a philosophical inquiry into the essence of impartiality and independence may not take one very far. Rather, as I have argued elsewhere, a more productive (if iconoclastic) approach to answering such questions may be to seek to assist judges to minimize their own partiality.

This short Article approaches the foregoing questions with a discussion of the state and status of judicial ethics in Canada. While popular mythology tends to portray Canadians as relatively laid-back, pragmatic people, this essay contends that Canadians have, in actuality, made some quiet and careful progress on the subject of judicial ethics and accountability that can provide valuable insight for further improvement in those areas. Moreover, this Article suggests that the methodology underlying Canada's progress does, in fact, embrace the pragmatic task of minimizing partiality in as much as it aspires to achieve maximum impartiality. To support these claims, this Article will proceed in four stages. First, it will lay a foundation for the rest of the discussion by explaining how the very idea of judicial ethics as an object of analysis and contestation is of relatively recent vintage in Canada. Second, it will identify several institutional initiatives that have enhanced the profile of judicial ethics in Canada. Third, it will suggest ways in which the judicial ethics project in Canada (but also perhaps in the United States) can be re-imagined, expanded, and even reconstructed by paying greater attention to the concept of an ethical identity. Fourth and finally, this Article will conclude by linking some more general observations back to the questions posed by the Symposium coordinators.

Keywords


Judicial Ethics

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