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Thursday, November 25, 1999

Impartiality and the Supreme Court
Ian Hunter
National Post

One year ago the Canadian Judicial Council issued a paper titled: Ethical Principles for Judges. Antonio Lamer, the chief justice of Canada (and chairman of the council) called it "a concise yet comprehensive set of principles." And so it is, clear and balanced. But is it followed?

One principle stated in the report is this: "Judges should strive to ensure that their conduct, both in and out of court, maintains and enhances confidence in their impartiality and that of the judiciary." The commentary section elaborates: "out of court statements concerning issues of public controversy by a judge undermine impartiality. ...Partisan actions and statements by definition involve a judge in publicly choosing one side of a debate over another. The perception of partiality will be reinforced if, as is almost inevitable, the judge's activities attract criticism and/or rebuttal. This in turn tends to undermine judicial independence. In short, a judge who uses the privileged platform of judicial office to enter the political arena puts at risk public confidence in the impartiality and independence of the judiciary."

I have read several recent speeches delivered by Madam Justice Claire L'Heureux-Dube to various groups.

To a gathering called The United Nations Platform for Action Committee, she spoke on the topic: "Applying Women's International Human Rights in Canada." She said: "Human rights are yardsticks against which all people must measure their conduct and that of their governments and public officials, and against which the global community as a whole must measure its progress." She elaborated: "The unequal pay and job opportunities available to women, sexual and racial harassment and discrimination and hate crimes committed against gays and lesbians are just some of the problems that international human rights laws implore all citizens to confront."

Will a lawyer appearing before the Supreme Court of Canada in opposition to a decision of a human rights commission or one of its tribunals dealing with any of these issues anticipate an impartial hearing?

To a panel discussion on same-sex partnerships, Judge L'Heureux-Dube lamented the Supreme Court's 1995 Egan decision (refusing to extend pension benefits to same-sex couples) as a "failure," subsequently turned to "success" by the Supreme Court's Vriend decision -- "The judgment in M. v. H. built upon this victory." Is this the language of judicial neutrality?

Her Ladyship invited her London, England, audience to reflect on how far the law in Canada has come in recognizing same-sex relationships, but she lamented that "all laws in Canada do not recognize same-sex partnerships." The courts "are taking the lead in changing society's attitudes to same-sex partnerships."

If you were acting for an intervenor group opposing further extension of same-sex benefits, would you consider that Judge L'Heureux-Dube is, to use the legal term, "predisposed" to the opposite outcome?

An attendee at the London conference has quoted Her Ladyship (in the panel discussion that followed) as declaring herself "an equality person. I hate discrimination. I'll do anything I can to achieve it [equality]. Go by the spirit of human rights. You can call it partiality. I call it human."

Although these remarks were reportedly received with "thunderous applause," should they not indeed be called "partiality"?

The canon of professional ethics stipulates that a barrister's first obligation is to his client. A lawyer who appears before the Supreme Court in opposition to any of the issues on Judge L'Heureux-Dube's agenda faces a difficult choice. He can say nothing. But this might be a betrayal of his professional duty to his client. Or he might respectfully request that Judge L'Heureux-Dube recuse herself.

In 1958 a lawyer named Lewis Duncan did exactly that. His law partner had been involved in an acrimonious dispute with Mr. Justice Charles Locke before Mr. Locke's appointment to the bench. At the beginning of the case Mr. Duncan said: "In my opinion the administration of justice would not be served by Judge Locke sitting on this appeal." For those words Mr. Duncan was cited for contempt of court, and Chief Justice Patrick Kerwin fined Duncan $2,000 (an enormous sum in those days), in default 60 days in jail, and prohibited him from appearing in the court again until he had apologized unreservedly in open court.

No lawyer would wish to be placed in Mr. Duncan's position. And yet, with respect, the question must be asked: Do the rules on reasonable apprehension of bias apply to Supreme Court judges?

Ian Hunter is professor emeritus in the faculty of law at the University of Western Ontario.

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