Canadian Lawyer - sample

28 M A Y 2 0 1 9 w w w . c a n a d i a n l a w y e r m a g . c o m he Canadian Judicial Council had been in existence for more than a decade before its first formal hearing into the conduct of a judge and the central issues were the limits on speech outside of court and whether that could be subject to disciplinary action. The inquiry in 1982 into then-B.C. Supreme Court Justice Thomas Berger was very high profile and controversial at the time and it highlighted issues that would likely spark similar debate even today. A fellow judge, sitting on the Federal Court of Canada, filed a complaint against Berger over comments he made to the media months earlier, as well as an opinion piece, that related to the political negotiations, which ultimately resulted in the patriation of the Constitution and the enact- ment of the Charter of Rights. Berger, who headed the Mackenzie Valley Pipeline Inquiry in the mid-1970s, was sharply critical of the initial decision during the negotiations not to entrench Indig- enous rights in the Constitution and argued that Quebec should have a veto over any changes. Among his public comments in 1981 were that the coun- try's first ministers were "mean-spirited and unbelievable" in "abandoning" native rights. Berger did not recognize the authority of the judicial council based on his interpretation of judicial independence and did not participate in the hearing process. Ultimately, the panel concluded that his comments were improper but did not warrant sanction because it was the first time the issue had been before the judicial council. "We are prepared to accept that he had the best interests of Canada in mind when he spoke, but a judge's conscience is not an acceptable excuse for contravening a fundamen- tal rule so important to the existence of a parliamentary democracy and judicial independence," the disciplinary panel wrote in its decision. In future, judges "should avoid taking part in controver- sial political discussions except only in respect of matters that directly affect the operation of the court," the panel stated. Nearly four decades later, the rules about what is permis- sible for judges to comment on outside court and activities in the name of the public good do not appear to be any clearer. Perhaps with that in mind, the Canadian Judicial Council announced in March that it is reviewing and plan- ning to update its "ethical principles for judges" for the first time in two decades. "I still think it would be a mistake to say that judges The number of provinces with a female chief justice Percentage of female justices on the Quebec Court of Appeal Percentage of female justices on the Alberta Court of Appeal Percentage of female justices on the Federal Court of Canada Percentage of chief justices of a province whose legal background was either as a litigator, corporate/ commercial or administrative lawyer Percentage of chief justices of a province with a family law background Percentage of judges on the Ontario Court of Appeal from a visible minority Percentage of judges on the Quebec Court of Appeal from a visible minority Percentage of judges on the BC Court of Appeal from a visible minority Percentage of Superior Court judges in Ontario who are female Percentage of Court of Queen's Bench judges in Saskatchewan who are female Percentage of Court of Queen's Bench judges in Alberta who are female Percentage of all federally appointed judges in Canada who are currently serving in a supernumerary capacity 2 31 50 100 0 32 25 40 Source: Office of the Commissioner for Federal Judicial Affairs, official court websites. All totals include supernumerary judges. Data is current as of August 1/16 CANADIAN JUDICIARY BY THE NUMBERS * 30 7 0 0 24

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