Judicial Free Speech and Accountability: Should Judges Be Seen But Not Heard?
Canadian Judiciary, Judicial Role, Judicial Free Speech, Judicial Process, Canadian Judges, Judicial Impartiality, Judicial Independence, Judicial Accountability
Before exploring the reasonable limits of judicial free speech, it is important to understand the role of the judge in Canadian society. An expansion of judicial freedom of expression may enhance the impartiality and independence of the judge, rather than detract from these traditional pillars of the judiciary. Judges do have views and perspectives and expressing them may engender more respect and confidence than maintaining a monastic silence. The traditional view of the objective judge must be modified by the human traits of subjectivity, that stop short of pre-judgment. It is the "out-of-court" judicial speech that should be given greater reign, while the "in-court" speech of judges should be more restrained. While judges should not be preoccupied with "political correctness", they should ensure that their expressions do not violate the principles of the Charter, such as its guarantees of equality.
Judicial free speech must be accompanied by improved mechanisms of accountability at both the formal and informal levels. This article focuses on the performance of the Canadian Judicial Council, and explores in some depth the 1980s treatment of Justice Berger in contrast to the 1990s treatment of the Nova Scotia Court of Appeal Judges (Marshall Affair). At the informal level, the Ben, the Bar, academics, the media and lobby groups are assessed as checks upon judicial misconduct. The author calls for significant reforms of both the formal and informal mechanisms of accountability, including more formalized rules, increased lay input, improved remedies, canons of judicial speech and conduct, and opening up the judicial process.
Judges should be seen as well as heard, but be held accountable for what they say both inside and outside the courtroom. The role of the judge in Canada has evolved to the point where judges have become significant policy-makers, and Canadians have a right to know their views on the issues of the day. It is not desirable that judges cloister themselves away from the real world of affairs from which their cases arise. by expressing their views and engaging in a form of dialogue (albeit one restrained by the judicial role) with various segments of society, judges can form a better basis for judgment. The expansion of judicial speech and accountability can produce better-quality judging and an increased public confidence.
Wayne MacKay, "Judicial Free Speech and Accountability: Should Judges Be Seen But Not Heard?" (1993) 3 NJCL 159.