In light of the tremendous interest shown by readers in the topics of abuse of process and bias in our court system I thought I would follow-up on these topics by delineating the major portions of the Ontario Court of Justice's Principles of Judicial Office. These principles articulate the core values of our administration of justice, namely, adherence to the Rule of Law, judicial independence, impartiality and integrity. In addition, I will touch on how the advent of social media impacts on these serious issues.
Article 1.1 stipulates that judges must be impartial and objective in the discharge of their duties. It is significant that the provision uses the word "must" as opposed to "should" or "ought". This is consistent with the vital importance that impartiality and objectivity play in the proper discharge of judicial functions in the trial and hearing process. The following words in the commentary tend to both clarify and amplify this principle: "Judges should maintain their objectivity and shall not, by words or conduct, manifest favour, bias or prejudice towards any party or interest." Inherent in this commentary is that impartiality and objectivity in the execution of the judicial function can be compromised by both words or conduct and is not restricted to bias in the traditional sense but also includes prejudice beyond the parties to the litigation. Clearly, it is reasonable that this duty may well extend to favour, bias or prejudice towards counsel or indeed the state.
Article 1.2 - which stipulates that judges have a duty to follow the law is a clear articulation of the Rule of Law. While it is true that judges are entitled to be wrong in law and appellate courts are there for this purpose - a pattern and practice of disregarding established and binding legal principles by a judge against one party may well give rise to concerns of serious judicial misconduct.
Article 3.2 stipulates that judges must avoid any conflict of interest, or appearance of any conflict of interest, in the performance of their judicial duties.
Ontario Court of Justice - Principles of Judicial Office:
Preamble
A strong and independent judiciary is indispensable to the proper administration of justice in our society. Judges must be free to perform their judicial duties without fear of reprisal or influence from any person, group, institution or level of government. In turn, society has a right to expect those appointed as judges to be honourable and worthy of its trust and confidence.
The judges of the Ontario Court of Justice (Provincial Division) recognize their duty to establish, maintain, encourage and uphold high standards of personal conduct and professionalism so as to preserve the independence and integrity of their judicial office and to preserve the faith and trust that society places in the men and women who have agreed to accept the responsibilities of judicial office.
The following principles of judicial office are established by the judges of the Ontario Court of Justice (Provincial Division) and set out standards of excellence and integrity to which all judges subscribe. These principles are not exhaustive. The are designed to be advisory in nature and are not directly related to any specific disciplinary process. Intended to assist judges in addressing ethical and professional dilemmas, they may also serve in assisting the public to understand the reasonable expectations which the public may have of judges in the performance of judicial duties and in the conduct of judges' personal lives.
1. The Judge in Court
1.1 Judges must be impartial and objective in the discharge of their duties.
Commentaries:
Judges should not be influenced by partisan interests, public pressure or fear of criticism. Judges should maintain their objectivity and shall not, by words or conduct, manifest favour, bias or prejudice towards any party or interest.
1.2 Judges have a duty to follow the law.
Commentaries:
Judges have a duty to apply the relevant law to the facts and circumstances of the cases before the court and render justice within the framework of the law.
1.3 Judges will endeavour to maintain order and decorum in court.
Commentaries:
Judges must strive to be patient, dignified and courteous in performing the duties of judicial office and shall carry out their role with integrity, appropriate firmness and honour.
3. The Judge in the Community
3.1 Judges should maintain their personal conduct at a level which will ensure the public's trust and confidence.
3.2 Judges must avoid any conflict of interest, or the appearance of any conflict of interest, in the performance of their judicial duties.
Commentaries
Judges must not participate in any partisan political activity. Judges must not contribute financially to any political party.
3.3 Judges must not abuse the power of their judicial office or use it inappropriately.
Commentary and Analysis:
What rings true in the above-noted passages of the Ontario Court of Justice's Principles of Judicial Office is the vital importance of both actual and apparent impartiality and integrity in the trial and hearing process. The advent of social media has introduced yet another serious concern with respect to the discharge of the judicial function. What a judge says - likes or tweets on social media has the potential to undermine both their decisions and the office which they hold. The following quote from *Rules of Engagement: Exploring Judicial use of Social Media by John G. Browning and Don Willett is instructive on this point:
"And before posting, tweeting or responding to what someone else has posted or tweeted judges need to ask themselves whether their statement could be seen as inappropriate or conveying partiality or bias. Judges are free to use social media, a terrific, low-cost way to remove distance and demystify the judiciary. But they must exercise caution, taking care to honor the distinctive constitutional role they've taken on as well as the public's confidence in the judiciary. Whether they're crafting a 140-page opinion or a 140-character tweet, judges must always be judicious."
*Texas Bar Journal - February 2016.
Article 1.1 stipulates that judges must be impartial and objective in the discharge of their duties. It is significant that the provision uses the word "must" as opposed to "should" or "ought". This is consistent with the vital importance that impartiality and objectivity play in the proper discharge of judicial functions in the trial and hearing process. The following words in the commentary tend to both clarify and amplify this principle: "Judges should maintain their objectivity and shall not, by words or conduct, manifest favour, bias or prejudice towards any party or interest." Inherent in this commentary is that impartiality and objectivity in the execution of the judicial function can be compromised by both words or conduct and is not restricted to bias in the traditional sense but also includes prejudice beyond the parties to the litigation. Clearly, it is reasonable that this duty may well extend to favour, bias or prejudice towards counsel or indeed the state.
Article 1.2 - which stipulates that judges have a duty to follow the law is a clear articulation of the Rule of Law. While it is true that judges are entitled to be wrong in law and appellate courts are there for this purpose - a pattern and practice of disregarding established and binding legal principles by a judge against one party may well give rise to concerns of serious judicial misconduct.
Article 3.2 stipulates that judges must avoid any conflict of interest, or appearance of any conflict of interest, in the performance of their judicial duties.
Ontario Court of Justice - Principles of Judicial Office:
Preamble
A strong and independent judiciary is indispensable to the proper administration of justice in our society. Judges must be free to perform their judicial duties without fear of reprisal or influence from any person, group, institution or level of government. In turn, society has a right to expect those appointed as judges to be honourable and worthy of its trust and confidence.
The judges of the Ontario Court of Justice (Provincial Division) recognize their duty to establish, maintain, encourage and uphold high standards of personal conduct and professionalism so as to preserve the independence and integrity of their judicial office and to preserve the faith and trust that society places in the men and women who have agreed to accept the responsibilities of judicial office.
The following principles of judicial office are established by the judges of the Ontario Court of Justice (Provincial Division) and set out standards of excellence and integrity to which all judges subscribe. These principles are not exhaustive. The are designed to be advisory in nature and are not directly related to any specific disciplinary process. Intended to assist judges in addressing ethical and professional dilemmas, they may also serve in assisting the public to understand the reasonable expectations which the public may have of judges in the performance of judicial duties and in the conduct of judges' personal lives.
1. The Judge in Court
1.1 Judges must be impartial and objective in the discharge of their duties.
Commentaries:
Judges should not be influenced by partisan interests, public pressure or fear of criticism. Judges should maintain their objectivity and shall not, by words or conduct, manifest favour, bias or prejudice towards any party or interest.
1.2 Judges have a duty to follow the law.
Commentaries:
Judges have a duty to apply the relevant law to the facts and circumstances of the cases before the court and render justice within the framework of the law.
1.3 Judges will endeavour to maintain order and decorum in court.
Commentaries:
Judges must strive to be patient, dignified and courteous in performing the duties of judicial office and shall carry out their role with integrity, appropriate firmness and honour.
3. The Judge in the Community
3.1 Judges should maintain their personal conduct at a level which will ensure the public's trust and confidence.
3.2 Judges must avoid any conflict of interest, or the appearance of any conflict of interest, in the performance of their judicial duties.
Commentaries
Judges must not participate in any partisan political activity. Judges must not contribute financially to any political party.
3.3 Judges must not abuse the power of their judicial office or use it inappropriately.
Commentary and Analysis:
What rings true in the above-noted passages of the Ontario Court of Justice's Principles of Judicial Office is the vital importance of both actual and apparent impartiality and integrity in the trial and hearing process. The advent of social media has introduced yet another serious concern with respect to the discharge of the judicial function. What a judge says - likes or tweets on social media has the potential to undermine both their decisions and the office which they hold. The following quote from *Rules of Engagement: Exploring Judicial use of Social Media by John G. Browning and Don Willett is instructive on this point:
"And before posting, tweeting or responding to what someone else has posted or tweeted judges need to ask themselves whether their statement could be seen as inappropriate or conveying partiality or bias. Judges are free to use social media, a terrific, low-cost way to remove distance and demystify the judiciary. But they must exercise caution, taking care to honor the distinctive constitutional role they've taken on as well as the public's confidence in the judiciary. Whether they're crafting a 140-page opinion or a 140-character tweet, judges must always be judicious."
*Texas Bar Journal - February 2016.
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