Ethical Principles and Cultural Competence: a duty to learn

Remarks by the Right Honourable Richard Wagner, P.C.
Chief Justice of Canada

Good morning. Thank you Chief Justice Morawetz for the generous introduction; and for you insightful leadership. I am very happy to be with you today.

Even though I am talking to all of you from my empty office, it still feels good to be among so many colleagues. No matter where you preside in Ontario, we ALL share the experience of delivering justice at the height of a devastating public health crisis. I look forward to future opportunities where we may meet and talk face to face – without masks.  I know that some of you, like many Canadians, have suffered loss during this crisis.  My sympathies are with you, and I thank you for the continued hard work on behalf of Canadians.

Like me, I feel confident you share my appreciation for the hard work and long hours that court employees have put in, over the last year. I am thankful for their support, creativity and dedication, in finding solutions and new processes to help keep everyone inside our courthouses healthy and safe.

Working with the Minister of Justice, we moved quickly to establish an Action Committee on Court Operations in response to Covid-19. Our goal is to uphold the principle of open and accessible courts’ and maintain the administration of justice throughout the health crisis. This proactive committee has provided national leadership on questions such as how to select a jury during a pandemic and how to manage travel for circuit courts.

In the recent budget, the federal government introduced legislation that would make several legislative changes to the Criminal Code and Identification of Criminals Act. These administrative proposals include:

• permitting the video appearance of accused persons at preliminary hearings and trials
• audio appearances for pleas and sentencing hearings, where video is not available
• the enhanced use of technology to draw names of jury candidates
• and revising the tele-warrant process, to permit peace officers to remotely apply for a wider range of investigative orders

These proposed changes would enhance the efficiency and effectiveness of criminal proceedings. And not just during the pandemic, but permanently. Covid-19 is proving to be a powerful agent of change for the justice system.

This virus forced all of us into unplanned pilot projects. It tested years of assertions about how modernizing our courts would be too expensive, not secure, or would affect the courts’ dignity and long-held traditions. I hope this momentum for reform continues. But we certainly cannot lose sight of how this pandemic continues to ravage many of our communities.

Across Ontario and the entire country, people are grieving. They are getting laid off, losing their jobs and going bankrupt. Families are experiencing food insecurity and domestic violence is being described as a “pandemic within a pandemic”. All of you – if you haven’t already – will see the human effects of this crisis in your courtrooms. More than before, delivering justice and resolving disputes born of this brutal period, will require an abundance of understanding. Covid-19 has had devastating effects on the most vulnerable in our society. In a country as diverse as ours, all judges will require a high degree of cultural competence. And becoming more culturally competent is an expectation of the Canadian Judicial Council’s new Ethical Principles for Judges. I am very pleased to speak on both of these topics today.

First though – I would be remiss if I did not mention Bill C-3. Canadians are fortunate to be served by highly competent, skilled and trained judges. We are serious about our professional development. Judges take full advantage of the NJI’s proactive, judge-led and judge-developed curriculum on sensitive and timely topics; such as myths and stereotypes about sexual assault victims.

Canada’s system of judicial education is considered to be among the best in the world. This was made clear to the public and decision makers. While I believe the legislation came about as the result of good intentions, its first draft infringed upon judicial independence. The CJC has worked hard to ensure that Parliament understands all of our concerns. Yet, we must accept that Bill C-3 is a fait accompli.

The Canadian Judicial Council formally turned its attention to judicial ethics with the publication of Commentaries on Judicial Conduct thirty years ago. In 1998, the CJC published the previous version of Ethical Principles that you are all familiar with. It has been a crucial resource in the training for federally-appointed judges. And it has provided valuable ethical guidance for those facing complex issues. However, there is no final word on ethics, especially as so much has changed over the last 23 years.

Today, judges’ work includes case management, settlement conferences, judicial mediation and frequent interactions with self-represented litigants. There is more emphasis on professional development and more judges are enjoying post-judicial careers. These, along with the advent of social media, raise ethical issues that were not fully considered, if at all, in 1998. The emergence of Black Lives Matter and Me Too movements have also spread awareness about real shortcomings in various parts of justice system.

And it doesn’t stop there.

We must redouble our efforts of Reconciliation with the First Peoples of Canada. Judges are expected to be alert to the history, experience and circumstances of Indigenous peoples. We must make the same commitment to those who make up the many other diverse cultures and communities in the areas we serve. In this spirit, judges are becoming more actively involved with the wider public. This is great! Through these actions we enhance public confidence and expand our knowledge of the diversity of human experiences in Canada today.

As a former President of Québec’s Conference of Superior Court Judges, I am most proud of how the CJC strove for meaningful consultations with the judiciary and stakeholders in the justice system. This engagement took place over several years. It included collaborative meetings and an easy-to-access online survey of issues relevant to judicial ethics.

In the fall of 2019, the council made the draft principles public. It solicited even more input from judges, stakeholders, professional organizations and laypeople. The CJC’s Judicial Independence Committee reviewed every submission, and incorporated many suggestions into the current version of ethical principles that is being finalized. This updated version also provides greater consistency of meaning in English and French.

These refreshed ethical principles provide guidance for federally-appointed judges. They were drafted with the expectation – and hope - that when read by the public, more people may understand our role and our highest ethical aspirations. These principles are not intended to be a code of conduct, nor do they list every possible ethical consideration judges may face.

The new document is organized with a statement and list of principles, followed by commentaries with context. For example, in the section on Integrity and Respect, the statement reads:

“Judges should conduct themselves respectfully and with integrity so as to sustain and enhance public confidence in the judiciary.”

And one of the principles states:

“Judges comply with the law and conduct themselves both inside and outside the courtroom in a manner that is above reproach in the view of reasonable, informed persons.” This has been key during the pandemic, when Canadians have had many personal liberties restricted. They expect leaders in their communities, and that includes us, to adhere to the same public health restrictions. Doing so is key to maintaining and building public confidence in the judiciary.

Section three relates more directly to what you have been discussing this week – judicial diligence and competence. The commentary is explicit – judges have a duty to continue their professional development. And just as you are all doing this week, this includes expanding our knowledge and understanding of social context issues that affect the administration of justice. Cultural competence is critical to access to justice, and the rule of law. Judges are encouraged to take advantage of opportunities to engage with and learn from the wider public; including communities with which they have little or no life experience.

I did this myself two weeks ago, after accepting that I could not travel to Iqaluit. I had been invited to deliver convocation remarks to the twenty-two Juris Doctor graduates of the Nunavut Law Program. Instead, I made my own opportunity to engage with the students. I have never been to Nunavut. I have no life experience of my own to draw upon, so I scheduled an informal call with the students. For 60 minutes, we just talked. We covered a lot of ground too – such as access to justice in the territory, practicing law in Inuktitut, and Indigenous representation on the bench. As judges, we are privileged to be able to reach out and engage with communities. This builds cultural competence, which is an essential skill.

Cultural Competence has been defined by many; but I like the concise definition of diversity specialist Ritu Bahsin, which is simply, “how we connect with people who are different from us”. ^{Footnote 1} She says this skill makes us able to relate to others comfortably, respectfully and productively.

I understand that yesterday was almost entirely devoted to the topic of unconscious or implicit bias. Learning about personal biases is an enlightening, but uncomfortable exercise. After all, we are judges; proud of our impartiality and fairness. We are devoted to ensuring Canadians benefit from the right to equal protection and equal benefit of the law without discrimination.

Yet all of us are the product of our own lived experiences; our own privileges or lack of them. But in an article about interrupting biases for critical thought, sociologist Arin Reeves says, “The more you become open to the ways in which cognitive biases shape your thinking, the more empowered you are to decrease the influence of these biases.” ^{Footnote 2}

Courtrooms are not exceptional. There is no reason, nor proof, to believe that systemic biases present in our society, evaporate at the threshold of a courthouse. It is possible that prejudice may have played a big part in why someone is appearing in your courtroom.

Consider for a moment how discrimination may have played a part in the experience of some young people appearing in juvenile courts. In the United States, the National Council of Juvenile and Family Court Judges developed a bench card to address bias in those courts. It cites research that shows that no matter the race, ethnicity or socioeconomic group of teenagers, there is no significant difference in the key features in adolescent development. Those features include impulsivity, sensation seeking, susceptibility to peer influence and a limited ability to anticipate consequence. In spite all of this, youth of colour in the U.S. face higher arrest rates, fewer opportunities for diversion and are far more likely to be detained and incarcerated.

It is not so different here. In March, Ontario’s John Howard Society released a report called “Unequal Justice – experiences and outcomes of young people in Ontario’s youth bail system”. ^{Footnote 3} The report used data from the Attorney General’s Integrated Case Outcome Network; as well as the Ministry of Children, Community and Social Services. It found that between 2014 and 2015, Indigenous youth made up more than a third of youth admissions to pre-trial detention in Canada. That’s five times their representation in the general population. The same data analysis found there were four times more Black male teens in Ontario’s youth facilities than the general youth male population. And for girls, the proportion of Indigenous female teens was 10 times higher in Ontario jails than the general female youth population. ^{Footnote 4}

Judges themselves may experience racism, sexism, xenophobia or age discrimination. A black robe offers no protection against bias.

In 1982, Justice Bertha Wilson was the first woman appointed to the Supreme Court of Canada. Eight years later, when only nine per cent of judges were women, Justice Wilson spoke at Osgoode Hall. Her speech had the provocative title: “Will Women Judges Really Make a Difference?” ^{Footnote 5}

She told the audience about the heavy burden of expectation she felt from other women upon her appointment to the Supreme Court. Justice Wilson said, “I had the sense of being doomed to failure; not because of any excess of humility on my part, or any desire to shirk the responsibility of the office. But because I knew from hard experience that the law does not work that way. Change in the law comes slowly and incrementally; that is its nature. It responds to changes in society; it seldom initiates them.”

Diversity on the bench has also come slowly and incrementally. But recent data is encouraging. The April tally of judges on the web site of the Commissioner for Federal Judicial Affairs, tells us 45% of all federally-appointed judges are now women. There is also increased representation of judges who are Indigenous, racialized or identify as having a disability or are LGBTQ2. Our newest colleagues represent a rich diversity of lived experiences. Canadians are seeing themselves on the bench; judges with career paths, life experiences and knowledge systems they can relate to. I welcome the new perspectives these colleagues are bringing to the bench. They build public confidence and understanding in our justice system.

Now, I do not wish to add to any burden of expectation, as experienced by Justice Bertha Wilson. It is hard for me to imagine what it would be like to be the first, or among the first of any given group to be appointed to the bench. I encourage all of my colleagues to keep that in mind, and support each other.

I know some judges seek guidance on how much and what type of community involvement is appropriate. Others among you may feel anxious about inadvertently using an out-of-date expression that could lead to criticism. The new Ethical Principles for Judges reflect our times and provide guidance. However, as I said earlier, it is impossible to anticipate every possible ethical scenario. Ask for help. Seek guidance from a colleague or your chief justice. Consult the Advisory Committee on Judicial Ethics, a committee established jointly by the CJC and the Canadian Superior Court Judges’ Association. The NJI also provides timely and relevant seminars, and has a library of video casts. In the next few months, the NJI will launch a series of six podcasts in both official languages, dedicated to the new edition of The Ethical Principles.

As I near the end of my remarks, I think this would be a very good time to recognize the hard work and dedication of those who carefully organized and executed this week’s seminar. These events don’t organize themselves! And I wish to acknowledge how much harder it has been to continue to offer high-quality seminars such as this one during the pandemic. Specifically, I would like to thank the valuable contributions of Justice Perrell, Terry Hancock and Marye Ménard-Bos.

Justice Bertha Wilson was not wrong when she observed that the law changes slowly. But she, just like the rest of us, could not have anticipated the scope and effects of a global pandemic. The last year has shown us that the justice system is capable of modernizing and becoming more efficient – and it can do so quickly.  And by virtue of our shared commitment to access to justice and judicial education, judges too, have answered the call to be more flexible, responsive and tuned in to the needs of Canadians in a pandemic.

Thank you. I look forward to your questions.

Remarks by the Right Honourable Richard Wagner, P.C.
Chief Justice of Canada
Delivered to the Ontario Superior Court Justices
May 6, 2021