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The civility of judges and the rule of law | Alexander Gay

Wednesday, November 14, 2018 @ 9:05 AM | By Alexander Gay

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Alexander Gay
The legal profession does not evolve in isolation. There is growing preoccupation across common law jurisdictions with the civility of judges. This is evidenced by the recent speech of Chief Justice Wagner who very recently expressed concern with the erosion in civility on the bench. The same concerns are being echoed as far away as the United Kingdom and Australia.

Until recently, the civility of judges was a taboo subject, either because of the belief that a judge never lacks civility or because the suggestion that a judge can lack civility is interpreted as a challenge to the independence and impartiality of the judiciary. Chief justice Wagner’s speech opens the door to this debate and to the issue of whether we have reached a point where we need a code of civility for judges.

The rule of law, which is fundamental to our democratic institutions, is supported by such things as (a) clear, publicized, fair laws (b) access to justice (c) an accessible, fair, impartial, efficient justice system, which resolves disputes based on legal principles and processes, and (d) lawyers and judges that display professionalism, civility, integrity and ethics. However, civility does not equal professionalism or legal ethics. These concepts co-exist, support and nourish each other, but they have different meaning.

Civility concerns how lawyers and judges conduct themselves in dealings with other counsel, judges or third parties. Professionalism is about the conduct of lawyers and how it can undermine the integrity of legal institutions. Ethics is about moral principles that govern a lawyer’s behaviour.

While these concepts overlap, a lack of civility does not necessarily amount to a breach of professional conduct or unethical conduct. The extent to which these concepts overlap continues to be the subject of some debate in the profession, with some even suggesting that there is a complete overlap between these concepts. However, the legal profession and, more broadly, the rule of law is not well-served if civility is seen as nothing more than a subset of professionalism or ethics.

In Canada, civility as it relates to judges is not a topic that has received any scholarly attention nor is it discussed separately from ethical or professional conduct. The Canadian Judicial Council has a number of reference documents on ethical conduct, including Ethical Principles for Judges, but none that deal exclusively with the civility of judges. There is a void on this topic.

Of course, civility is often seen as a relative concept that escapes definition. To some, it encompasses no more than a form of politeness and courtesy in behaviour and speech. To others, it is much more. In the United States where the civility is seen as a serious problem in the judiciary, there are a number of states that have codified civility.

A number of these civility codes apply to both lawyers and judges. They serve as guideposts and often exist in parallel to ethical and professional codes. There are some differences in how these codes define civility. However, despite the differences in language, there are principles of civility that cut across all these codes and which confirm that there are universally accepted principles of civility that apply to judges.

The Supreme Court in Groia v. Law Society of Upper Canada 2018 SCC 27, certainly accepted that standards of civility can be articulated with a reasonable degree of precision, which allow stakeholders to steer clear of the boundary.

The Advocates’ Society has published guidelines titled Principles of Professionalism for Advocates and Principles of Civility for Advocates. The document is aimed at lawyers, but it contains a section on what advocates can expect from the judiciary. The document is not complete nor is the target audience for this document judges. The expected behaviour when commenting on the work of another judge is, for example, not a matter that is discussed in the document and, as recently echoed by Chief Justice Wagner, an important aspect of civility that cannot be ignored.

While most lawyers and judges have a good sense on what constitutes civility, there is no single source document or equivalent to the Principles of Professionalism for Advocates and Principles of Civility for Advocates for judgesFilling in this gap should be considered, not as an instrument of discipline, but rather as a document that articulates general civility principles that support the rule of law.

Alexander Gay is a senior counsel at the Department of Justice. He maintains a broad civil litigation practice, with an emphasis on commercial and trade disputes. He is a part-time professor at the University of Ottawa Faculty of Law

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