Ethical Principles of TCC and FCA Judges Revisited

In March 2017, allegations of misconduct were made against three judges as a result of reports broadcast by the CBC's Fifth Estate and Radio-Canada's Enquête. The programs raised questions about possible conflicts of interest on the part of judges who attended privately sponsored professional conferences and receptions. Concern was expressed that some of the sponsors were involved in ongoing litigation before the court. In July 2017, in a little-noticed response, the Canadian Judicial Council (CJC) dismissed all complaints and issued a statement and an anonymized reply to a complainant.

The CJC statement cited comments by the Hon. Michael MacDonald, chief justice of Nova Scotia and chair of the Judicial Conduct Committee of the CJC, presumably made in an unpublished review of the complaints. Chief Justice MacDonald noted that judges are expected to engage in continuing education as a means of staying up to date with the law and with the evolving expectations of Canadians. Chief Justice MacDonald also noted that allegations of conflict of interest are normally legal issues that should be raised in court. He said that judges have an obligation to ensure that they avoid both real and apparent conflicts of interest and to disqualify themselves in any case that they believe they will be unable to judge impartially. Absent unusual circumstances, alleged conflicts of interest are legal matters, not judicial conduct issues.

The CJC statement said that Chief Justice MacDonald determined that the allegations involving Justices Bocock (TCC) and Pelletier (FCA) were unfounded and that no further action was required. From the anonymized reply to the complainant, it appears that the allegations relate to attendance at social events at the International Fiscal Association conference in Madrid, a conference that was approved by the CJC as a continuing education opportunity for judges who hear tax law cases. Justice Bocock is quoted in the anonymized reply as follows: "I have reflected on this entire matter. . . . Prudence and best practice would suggest that, in future, refraining from attending such off site sponsored conference receptions is a better and wiser choice."

Chief Justice MacDonald also considered the public comments made by Chief Justice Rossiter. As I wrote in my earlier article ("Ethical Principles of TCC and FCA Judges," Canadian Tax Focus, May 2017), much of the CBC report discussing Chief Justice Rossiter focused on the last sentence of his remarks at the annual CTF conference; the report quoted him as saying, "We will have coffee and we will have pizza and we will have wine and lots of it." The anonymized reply quoted from the CJC's booklet, Ethical Principles for Judges, noting that it suggests that judges should stay in touch with the communities they serve. The reply also cited the CJC's booklet, Judicial Education Guidelines for Canadian Superior Courts, for its comment that all judges should participate in educational programs. The CJC's news release accompanying the anonymized reply said that Chief Justice MacDonald commented that "[w]hile Chief Justice Rossiter's remarks were delivered in a joking manner, what he was trying to communicate was that judges should be encouraged to attend social gatherings as an opportunity for necessary interaction between judges and the public." The CJC's anonymized reply said that Chief Justice MacDonald was of the view that the comments in question were regrettable but that, in the circumstances, he "[was] of the opinion that Chief Justice Rossiter's remarks do not warrant further consideration by Council."

In my view, common sense has finally prevailed. The public is certainly entitled to know that judges exercise their authority impartially. Few would disagree with the general principle that a judge should not attend a private function offered by a law firm where the attendees consist solely of lawyers who may appear before the judge. However, a public function offered by a law firm where the attendees are a diverse group of lawyers, accountants, academics, and employees of the Department of Finance and the CRA is a different matter: to argue that judges would be swayed or somehow compromised by socializing with such guests is to hold a very low opinion of the judiciary. I was present when Chief Justice Rossiter made his remarks, and I did not find them regrettable; they were quite humorous and succinctly made the point that judges should interact with the public. I hope that we have not reached the stage where judges must display no sense of humour in public.

Brian Carr
Thorsteinssons LLP, Toronto
[email protected]

Canadian Tax Focus
Volume 8, Number 2, May 2018
©2018, Canadian Tax Foundation