Judicial Accountability

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada

Introduction

It is a great pleasure to be here with all of you at this Conference on Law and Parliament. I would like to sincerely thank you for inviting me to address this distinguished audience and participate in discussions on these important issues.

I am particularly pleased to be here today to speak to you about a subject that is much talked about but, one suspects, little understood – the issue of judicial accountability. The confusion is understandable. How can judges who essentially possess tenure until the age of retirement and who profess to be independent, be accountable and to whom. I hope to provide some answers today. Judges are accountable. They are accountable to the Canadian public and there are numerous mechanisms in place that ensure their accountability, while respecting the need judicial independence.

Accountability in context

Every era has its mood. The fifties were the era of hard work and family values. The late sixties and seventies the era of revolt and a questioning of traditional values and government institutions. The eighties were marked by a reckless optimism and excess, fueled by new technologies and financial stability. The nineties were tinged with a profound cynicism about our major social institutions and a dark pessimism about where we were going. Today, the cynicism persists. Added to this is the sense that democracies everywhere are under siege – both from within and without. This has led, predictably, to calls for greater accountability by democratic institutions.

The institutions of business have not been immune, and in many ways have been the catalyst for a greater focus on accountability in other realms. After the collapse of Enron and Worldcom, there were calls for stricter rules of corporate director and officer liability. In the United States, the result was passage of the Sarbanes-Oxley Act which mandated stricter internal controls designed to make directors more accountable to shareholders, the public generally and government ^{Footnote 1}. Likewise, in Canada, we have tightened the rules in order to increase the liability of corporate executives. In Ontario, for example, amendments to the Securities Act, which entered into force in December 2005, allow an action for damages against directors, officers or a responsible issuer where there has been misrepresentations or a failure to make timely disclosures. ^{Footnote 2}

The expectation that all institutions – not just publicly-held corporations – should be held accountable has spilled over, naturally enough, to government. Here in Canada, accountability was on many peoples’ minds as they watched the Gomery Commission of Inquiry into the Sponsorship Program and Advertising Activities. The Federal Accountability Act ^{Footnote 3}, introduced last spring, is aimed at creating a legislative regime governing the ethical conduct of public office holders, both during and after employment ^{Footnote 4}.

These recent events have put accountability on the front burner, but in our democratic system, accountability has always been of prime importance, as it should be. For at the heart of the concern about accountability is the belief that in healthy democracies, power should not go uncontrolled. It must be responsible to and responsive to the community.

Institutions, including business, government and the judiciary, are expected to carry out their roles and responsibilities with integrity and efficiency, in the service of the public. They are expected to be accountable. At the same time, there is a recognition that accountability is a flexible and context driven concept. It is generally agreed that corporate directors owe legal, moral and social duties of various kinds; they have responsibilities to the company, and to its shareholders, its employees, its creditors, consumers of the company’s products and the public generally. The formal mechanisms to enforce directors’ duties are established by legislation and through the common law. Remedies are complex and include removal from office, liability to civil actions for damages, and exposure to prosecution for breach of the criminal law.

It is also generally accepted that different rules of accountability must apply to members of parliament. They are accountable to the people who elected them and every few years they run the risk of being voted out of office if enough of their constituents don’t like the way they are doing their job. Ministers of the Crown are accountable, in theory at least, to the head of state, the Governor General; in practice they are accountable to parliament and can be removed if they lose the confidence of parliament. Public servants are subject to forms of accountability that are different but no less effective.

As an indicator of the flexibility associated with the concept of accountability, it is understood that accountability must at times yield to competing values. For members of parliament, accountability can yield to parliamentary privilege, a rule by which members of parliament enjoy an absolute immunity from liability to suit in relation to what they say in parliament. The usual form of accountability – liability for defamation – is set aside in the higher interest of unfettered freedom of expression in parliament. It is notable that some of the amendments to Bill C-2 were aimed at protecting this privilege, although – in the interests of enhancing accountability – some exceptions to the privilege were included. ^{Footnote 5}

The changing role of judges – changing perceptions of judicial accountability

The same holds true for the judiciary. Judicial accountability has had its share of attention of late. And, as in the case of other institutions, the principles of accountability that emerge are context specific.

Time was – not too long ago – judges were universally held in high esteem. And they were comfortable – dare I add – with their status. As Lord Hewart put it to the guests assembled at the Lord Mayor of London’s banquet in 1936:

His Majesty’s judges are satisfied with the almost universal admiration in which they are held ^{Footnote 6}.

In a similar vein, Lord Devlin suggested in 1979 that:

The English judiciary is popularly treated as a national institution… and, like the navy, tends to be admired to excess ^{Footnote 7}.

Lord Donaldson, a former Master of the Rolls, summed up the commonly held view of judges and accountability with this statement:

[T]he essence of my job is that I am responsible to the law and to my conscience and to no one else ^{Footnote 8}.

When accountability was talked about at all, it was in terms of responsibility to the law as set out in legal precedent. The great American judge Learned Hand told his law clerk:

Sonny …. to whom am I responsible? No one can fire me. No one can dock my pay. Even those nine bozos in Washington, who sometimes reverse me, can’t make me decide as they wish. Everyone should be responsible to someone. To whom am I responsible?

Turning to his shelves of law reports, he said: “To those books … That’s to whom I’m responsible”. ^{Footnote 9}

One gets a sense, from reading these historical (and great may I add) judges’ comments that they took it for granted that they were above scrutiny. But in today’s world where judges play an important and expanded role, any notion that judges are above scrutiny has lost currency.

Resolving disputes is today as ever, still the primary and most fundamental task of the judiciary. But for some time now, it has been recognized that the matter is not so simple. In the latter part of the 20th century, the law-making role of the judge dramatically expanded. The expansion can be attributed to a number of factors. The constitutionalization of rights increasingly implicates the courts in a broad range of social policy issues. The courts, which were formerly compelled to accept parliament’s decree as the last word, subject only to the requirement that the law fell within the government’s powers under the Constitution’s division of powers, are now obliged to declare a law or action illegal if it violates the constitutional bill of rights. This expanded role for the judiciary has increased the calls, in some quarters, for greater accountability. It is my argument that judges are accountable – and indeed always have been.

The source of judicial accountability

However, as I said earlier judges are held accountable in a way specific and appropriate to their unique role, just as in the case of business, parliament and the executive. But before I get into the mechanisms by which judges are accountable, I want you to bear with me as I take what some of you might view as a romp through English history. But it is a short romp, and it has a purpose: It highlights the touchstone that underpins the concept of judicial accountability – the principle of judicial independence.

Henry II is recognized as the first English monarch to set up “a permanent court … for the purpose of trying specific forms of action”. ^{Footnote 10} His judges were appointed at the pleasure of the King: If the King was not pleased with how the judge was carrying out his job, the judge could be removed from office with dispatch. They carried out their work as part of the King’s court and their activities were supervised by the King. With few exceptions, until the beginning of the 18th century, judges in England held office at the pleasure of the King and it was not uncommon for judges to be sacked by the monarch: Charles II sacked eleven judges during his reign, James II sacked twelve.

As England approached the 18th century, the struggle between King and parliament came to a head. Parliament viewed the appointment of judges at the pleasure of the King as intolerable: How could judges oversee the abuse by the King of his powers if the King himself could shut the judges down?

Parliament abolished appointments of judges at pleasure by the Act of Settlement, 1701 and a new principle was substituted in its place. ^{Footnote 11} The Act guaranteed tenure for judges who could be removed only “upon the address of both Houses of Parliament”. Tenure was guaranteed quamdiu se bene gesserint. The translation from the Latin is “as long as he shall behave himself”. This principle lies both at the heart of both judicial independence and judicial accountability.

The objectives of judicial accountability

Accountability in the judicial context is driven by the fact that judges must be independent, in fact and in perception. On the occasion of his retirement as the Chief Justice of Saskatchewan, the Honorable Edward Bayda summarized the importance of judicial impartiality and independence in this way. I am paraphrasing a little:

A judge must always think of himself or herself not as a person with power, but as a person in service. A person who serves all of the people is answerable to all of the people. And the best way for her to be answerable to all of the people is to be totally impartial and totally independent. She must not be in the pocket of the minority. He must not be in the pocket of any minority. It is that kind of impartiality and total independence that instills the confidence of the public in the administration of justice. ^{Footnote 12}

Judicial independence is not an end in itself, or some self-serving judicial privilege. It is a concept that “is now deeply rooted in the common law world. It is inherent in the concept of adjudication … that the judge must not be an ally or supporter of one of the contending parties”. ^{Footnote 13}

Independence of the judiciary is the foundation of impartiality and the constitutional right of all Canadians. ^{Footnote 14} Indeed, John Locke claimed that the adjudication of disputes by neutral judges was the most important benefit of civilization. ^{Footnote 15}

The underlying principle of democracy that power should not go uncontrolled is furthered by an accountable, independent judiciary. Ultimately no one can be accountable without this. The need for public confidence in the independence and impartiality of the courts dictates the form that judicial accountability takes. This is the essential link between judicial independence and judicial accountability. Any system of accountability for judges must take judicial independence as a necessary condition.

What then are the requirements judicial accountability must meet? For the individual judge – looking at the matter in its most simple terms – accountability should encourage good decision making. A good decision is one that is just, according to law. The methods by which decisions are made must be seen to be transparent and fair. The decision maker must be seen to be independent and impartial.

All of these things dictate special mechanism of accountability. For example, the usual form of accountability for legislators. Accountability of judges at the ballot box is rejected by most western democracies. Election of judges would make – or appear to make – judges dependent on and partial to those who underwrite their campaign or vote for them. Judicial accountability must not interfere with the actual or perceived independence of the individual judge making a particular decision. In this important sense, independence and accountability are not opposed but work towards the same goal: To ensure that justice is rendered according to the law.

At the institutional level, judicial accountability must support, in fact and in perception, the ability of courts to deal with matters in a timely way, using procedures that are transparent and fair, which serve the ends of justice and which provide reasonable access to the courts.

Mechanisms of accountability

Against this background, what then are the mechanisms by which we hold judges accountable? First, to whom do the judges account? The answer is that judges account to the public, not directly as do elected politicians who can be voted out of office, but through mechanisms that the law has over the centuries devised and refined.

Second, how are judges held to account? Answer: In a number of ways including: (1) the sanction of removal; (2) the built-in accountability of our open court processes; (3) public and peer review; and (4) the principle of deference developed as a protection against uncontrolled judicial power.

First, the ultimate sanction, the sanction of removal. At the federal level, s. 99 of the Constitution Act, 1867, incorporates the principle contained in the Act of Settlement, 1701 that judges shall hold office during good behaviour. Under the Constitution, judges may be removed from office by the Governor General on address of the House of Commons and Senate. For provincially-appointed judges, there is no corresponding provision in the Constitution. However, the powerful tradition of judicial independence would protect them from arbitrary removal as well.

When judges are guilty of misconduct, they can be disciplined and in serious cases removed from office by parliament. There are judicial councils both at the federal level and at the provincial level that have the responsibility of carrying out investigations into allegations of judicial misconduct. For federally-appointed judges, the Judges Act gives the Canadian Judicial Council the power to recommend to the Minister of Justice that a judge be removed for reasons of age or infirmity; for having been guilty of misconduct; for having failed in the due execution of the office of judge; or for having been placed, by his or her conduct, in a position incompatible with the due execution of the office. ^{Footnote 16} In the provinces, the guarantee of tenure during good behaviour is supplemented by the establishment of judicial councils with power to investigate complaints against judges and make a recommendation as a precondition to disciplinary action. ^{Footnote 17}

Moving to the second mechanism by which judges are held accountable, there is also the built-in accountability of open court processes. Long established principles which govern the way in which judges perform their judicial functions serve the objectives of accountability. Judges are required to make their decisions only after they have heard argument from all sides in a dispute. Those arguments are made in open court since judicial proceedings are, except in exceptional circumstances, held in public. As Chief Justice Murray Gleeson of Australia has noted:

People who live in a community where justice is administered in public may easily overlook the fact that there are many places where that is not so. So much decision-making, including governmental decision making, takes place in private, that the public need to be reminded of how unusual the judicial process is in this respect. ^{Footnote 18}

There is also the common practice of giving reasoned, well-written judgments that are publicly reported or otherwise available for public scrutiny. In R. v. Sheppard, Justice Binnie, writing for the Court, noted the general sense in which a duty to give reasons may be said to be owed to the public rather than to the parties to a specific proceeding. ^{Footnote 19}

These principles are so firmly entrenched in the Canadian judicial system that their significance may go unnoticed. But in the context of judicial accountability, they are of prime importance.

The third way in which judges are held accountable is through peer and public review of their decisions. Peer review comes in a number of forms. Appellate review is the most obvious. All judicial decisions, with the exception of the decisions of the court at the apex of the judicial system, are open to appeal. When judges make mistakes, their decisions can be overturned on appeal. At the highest court level, the Supreme Court of Canada, the rationale is that the buck has to stop somewhere, and the likelihood of error is greatly decreased if more minds are brought to bear on the problem at hand. Moreover, the Court has the power to overrule statements of law made in its own earlier decisions.

Peer review by other judges occurs as a natural feature of the development of the common law: any court may consider and comment on any relevant judicial decision in the course of arriving at a conclusion in the case at hand. Judges generally value the good opinion of their peers and are sensitive to the disapproval of their colleagues.

Peer review is not restricted to review by other judges. Lawyers and legal academics also review and comment on judicial decisions, from those made at the provincial level, right through to those made by the Supreme Court of Canada.

Judicial decisions are also fair game in the court of public opinion where they are subjected to comment and criticism and are discussed on the editorial and op-ed pages of newspapers. Judicial decisions are often criticized. Robust and accurate reporting on judgments by the media is a good thing, although one always hopes that any commentary and criticism will be well informed. The point is that peer and public review are effective forms of accountability.

As I mentioned a moment ago, aside from these mechanisms, judges have elaborated judicial doctrines that allow them to carefully discharge the delicate task with which they are sometimes entrusted: that of adjudicating on the manner in which the two other branches of government, the legislature and the executive, exercise their functions.

One such mechanism is the doctrine of deference. When a citizen claims that the state has violated his or her constitutional rights, the courts must referee the dispute, but they do so with all necessary deference to legislative and executive expertise in weighing competing demands on the public purse, and competing perspectives on public policy. In deciding difficult social issues, the courts act with deference to the decisions of the legislative branch. The degree of deference varies with the nature of the question and the nature of the power at stake. Deference, however, is not unlimited. It does not mean simply rubber stamping laws. If a law is unconstitutional, it is the duty of the courts to say so.

Deference is not the only mechanism courts use to mediate the public-private divide. Judges consciously balance individual interests against the interest of the public at large, when rights are at issue. Judges are actively aware of the difficulty legislators and members of the executive branches of government face in crafting solutions to the complex and vital problems they are called upon to mediate. And they are sensitive to the prerogative and responsibility of choice. The question judges have repeatedly stated, is not whether the government plan or procedure is the best or optimal solution from the perspective of the law, but whether it is within a wider range of reasonable options having regard to the particular problem the legislature or executive is attempting to address.

Finally, when laws are struck down, that is not the end of the matter. Judges attempt to order remedies that are sensitive to the situation. And the ruling is often just the step in a longer process of developing law and responses that meet the government’s objective, while remaining true to the law and the constitution. Professor Hogg, among others, uses the metaphor of dialogue to explain the ensuing dynamic between the branches of governments. ^{Footnote 20} The result, the record shows, is often a better law, a more effective administrative procedure. In the last resort, Parliament and the provincial legislatures retain the power to override a finding of unconstitutionality under section 2 and sections 7 to 15 of the Charter by invoking the notwithstanding clause, section 33.

Conclusion

I have described an intricate and effective construction of checks and balances on the judiciary that protect the public against the danger of arbitrary and unjustifiable exercise of power. The formal checks and balances are found in the Canadian Constitution and the Judges Act, which provide a mechanism for removal if a judge is guilty of misconduct. They are found in the disciplinary processes established by judicial councils throughout the country, at the provincial and federal levels. Informal mechanisms exist in our open court processes, the practice of giving reasons and exposure to peer and public review. Self-imposed mechanisms have been developed by the judiciary in recognition of their place in democratic governance.

Current levels of accountability of all government institutions will undoubtedly continue to attract scrutiny. For the judiciary, demands for change must be met rationally, bearing in mind the objectives sought to be achieved: will the proposed changes promote effective decision-making – the finding of a just result in accordance with law? Will public respect for and acceptance of the institution of the law and the courts be enhanced or eroded? Will democratic principles be strengthened or weakened? How does the proposed change relate to the constitutional right to an independent judiciary? In all cases, the bottom line is clear: Accountability there is and must be, but let it always be commensurate with judicial independence and impartiality. The challenge is to develop mechanisms of accountability that do not undermine judicial independence. Canada’s citizens deserve no less.

I thank you for your attention.

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
Conference on Law and Parliament
Ottawa, Ontario
November 2, 2006