McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Montreal
Volume 29
1984
No 3
The Limits to Judges’ Free Speech: A Comment on the Report
of the Committee of Investigation into the Conduct of the Hon.
Mr Justice Berger
Jeremy Webber.*
Basing his analysis on a theoretical exami-
nation ofjudicial independence, impartiality,
the desirability of judges maintaining a cer-
tain moral standard in their private lives, and
the need to prevent the abuse of judicial au-
thority, the author suggests appropriate lim-
its to extra-judicial comment. In light of these
guidelines Mr Justice Berger’s comments are
found to have been acceptable judicial be-
haviour, and accordingly the holding of the
Committee of Investigation is criticized.
En fondant son analyse sur un examen th6o-
rique de l’ind6pendancejudiciaire, du devoir
d’impartialit6, de la n6cessit6 d’une certaine
conduite .morale de la part des juges et du
besoin de pr6venir l’abus de l’autorit6 judi-
ciaire, l’auteur propose des limites appro-
prides A Fobligation de r6serve. D’apr~s ce
module les propos tenus par M. lejuge Berger
son jugs acceptables et la conclusion du Comit
d’enqute est par consdquent rejet~e.
*B.A. (U.B.C.); LL.B., B.C.L. (McGill); presently articling with McAlpine & Hordo,
Vancouver.
McGill Law Journal 1984
Revue de droit de McGill
McGILL LAW JOURNAL
[Vol. 29
Synopsis
1.
“The Berger Affair”
Introduction
A.
B. Mr Justice Berger’s Remarks
C. The Report of the Committee of Investigation
II. A Theoretical Determination of the Limits to Extra-judicial Comment
A. The Separation of Powers
1. Functional and Institutional Aspects of the Independence of
the Judiciary
2. Limits on Extra-judicial Speech Derived from the Threat Posed
by the Judiciary to the Autonomy of the Legislature and Executive
3. Limits on Extra-judicial Speech Derived from the Threat Posed
by the Executive and Legislature to the Autonomy of the Judiciary
a. The Fear that the Judiciary Will Alienate the Legislature
and Executive, Provoking Retaliation
b. The Fear that the Judiciary Might Adopt a Legislative
Approach to Decision-making, Forsaking the Judicial
Function
c. The Special Case of Constitutional Questions and Matters
Affecting the Administration of Justice
B. The Duty of Impartiality
1. The Definition of “Impartiality” in the Case Law
2.
3.
Impartiality with Respect to Law, and Judicial Practice
Impartiality with Respect to Law, and the Nature of Adjudication
C. Undermining the Moral Integrity of the Bench
D. Abuse of Judicial Office to Make Personal Statements
III. The Guidelines and Their Application
A. Applying the Tests to Mr Justice Berger’s Remarks
B. Conclusion
*
*
*
1984]
THE BERGER AFFAIR
I.
Introduction
A.
“The Berger Affair”
In November 1981, at the height of the debate over the patriation and
amendment of the Canadian constitution, Mr Justice Thomas Berger of the
Supreme Court of British Columbia publicly criticized two features of the
constitutional accord that had just been reached between Prime Minister
Trudeau and the premiers of nine provinces: 1) the failure to guarantee
native rights, and 2) the denial to Quebec of a veto over constitutional
change. Mr Justice Berger’s remarks, contained in a widely-reported speech
delivered at the University of Guelph convocation on November 10, and
repeated in an article written for The Globe and Mail, raised a storm of
controversy.’ On November 18, and again on November 19, Mr Justice
Addy of the Federal Court of Canada wrote to the late Chief Justice Laskin,
then chairman of the Canadian Judicial Council, complaining that Mr Jus-
tice Berger was guilty of conduct inconsistent with his judicial office. 2 Mr
Justice Addy’s complaint was brought before the full Council, and on 8
March 1982 that body appointed a Committee to inquire into the charges.
Mr Justice Berger, however, refused to participate in this Committee’s pro-
ceedings, arguing that because the facts were not in dispute there was no
‘Ottawa Citizen (10 November 1981) 4; The [Toronto] Globe and Mail (12 November 1981)
8 and (18 November 1981) 7. These articles are included as Appendices “C”, “J” and “E”
respectively to Report and Record of the Committee of Investigation into the Conduct of the
Hon. Mr Justice Berger and Resolution of the Canadian Judicial Council (1983) 28 McGill
L.J. 378, 396-7, 414-5, and 398-401 (hereafter. Report and Resolution).
Appendix “I” of Report and Resolution, 413, contains the transcript of a television interview
of 24 November 1981, in which Prime Minister Trudeau criticized Mr Justice Berger for”getting
mixed into politics”, and expressed the hope that “the judges will do something about it”. A
perusal of The [Toronto] Globe and Mail and The [Montreal] Gazette suggests that the public
controversy over the propriety of Mr Justice Berger’s conduct developed only after this inter-
view. The Prime Minister had also criticized Mr Justice Berger on 18 November 1981, but
solely on the grounds that the latter had not supported the constitutional package when it
included native rights: The [Toronto] Globe and Mail (19 November 1981) 1. Mr Justice Berger
responded to the latter criticism in his letter to the late Chief Justice Laskin, 3 December 1981,
published as Appendix “G” to Report and Resolution, 404.
2These letters are included as Appendices “B” and “D” to Report and Resolution, supra,
note 1, 394-5 and 397-8. Mr Justice Addy’s complaint was phrased as one of non se bene
gesserit, alleging that Mr Justice Berger had breached the condition of good behaviour under
which Superior Court judges hold their offices in Canada: Report and Resolution, supra, note
1,382.
REVUE DE DROIT DE McGILL
[Vol. 29
need for an investigation, 3 and that in any case the Judicial Council had
no authority to rule on a judge’s conduct unless that conduct constituted
grounds for removal from office. 4 The Committee, consisting of Justices
B.J. MacKinnon, J.K. Hugessen and W.R. Sinclair, in due course delivered
a unanimous report, concluding that although Mr Justice Berger’s conduct
“would support a recommendation for removal from office”, such a severe
sanction should not be invoked in this instance; it would be unfair, they
held, to remove a judge on the basis of standards of judicial restraint which
had not previously been enunciated.5 The report was brought before the
full Judicial Council, which passed a resolution declaring that although Mr
Justice Berger had committed an “indiscretion”, his actions “constitute no
basis for a recommendation that he be removed from office”. 6 The Com-
mittee’s report and the Council’s resolution were delivered to then Minister
of Justice Jean Chr~tien on 31 May 1982, and were released by him to the
public on 4 June 1982. 7 On 27 August 1983, Mr Justice Berger stepped down
from the bench.
“The Berger Affair”, as it has come to be known, raised important
questions concerning the right of judges to make public statements extra-
judicially and the appropriate mechanisms to control extra-judicial conduct.
These issues in turn have significant implications for the independence of
the judiciary and for the position of judges within society at large. The
Report and Record of the Committee of Investigation into the Conduct of
the Hon. Mr Justice Berger (hereafter: Report)8 is the only Canadian doc-
ument which deals in an authoritative manner with these questions. It there-
fore occupies an important place in Canada’s constitutional law. Yet the
content of the Report is unsatisfying: the standards of permissible comment
which it establishes are little more than the repetition of phrases which,
although they have great symbolic value, provide little guidance to future
conduct. This paper will attempt to remedy that defect by probing such
concepts as the independence of the judiciary and the judge’s duty of im-
partiality in order to develop a coherent theory of the limits to extra-judicial
free speech. This theoretical discussion, crucial to a more precise deter-
mination of the limits to extra-judicial comment, will form the core of this
essay. In order to keep the paper within manageable bounds, the second
“K” to Report and Resolution, supra, note 1, 415, 417.
3Letter of Mr Justice Berger to Chief Justice Laskin of 2 March 1982, included as Appendix
4Memorandum of Mr Justice Berger to members of the Supreme Court of British Columbia
of 15 March 1982, included as Appendix “L” to Report and Resolution, supra, note 1, 418,
419.
5Report and Resolution, supra, note 1, 392.
6lbid., 379.
71bid., 378.
SSupra, note 1.
19841
THE BERGER AFFAIR
issue raised in the Berger affair –
be enforced – will not be examined in detail.
the means by which such limits should
B. Mr Justice Berger’s Remarks
Mr Justice Berger criticized the constitutional accord on two grounds:
the failure to mention native rights in the proposed document, and the
refusal to concede to Quebec a veto over constitutional change. He expressed
his concerns in forceful language. According to The Globe and Mail’s report
of the speech at Guelph, he said, inter alia, “the native peoples lie lieyond
the narrow political world of the Prime Minister and the premiers, a world
bounded by advisers, memoranda, non obstante clauses and photostat ma-
chines. … The agreement reveals the true limits of the Canadian conscience
In the end, no matter what ideology
and the Canadian imagination. …
they profess, our leaders share one firm conviction: that native rights should
. Under
not be inviolable; the power of the state must encompass them. ..
it is an abject
the new Constitution the first Canadians shall be last. …
and mean-spirited chapter.”9 The article that he wrote for the same news-
paper, although lacking the pungent language of the Guelph speech, was no
less direct in its criticism of the First Ministers.’ 0
C. The Report of the Committee of Investigation
The bulk of the Committee’s Report comprises a description of the
evolution of the independence of the judiciary, a refutation of arguments
advanced by Mr Justice Berger and by Chief Justice Allan McEachern of
the British Columbia Supreme Court (in Mr Justice Berger’s defence), and
finally, the application of doctrines of judicial propriety to Mr Justice Ber-
ger’s statements.
The conclusions that the Committee draws from its examination of the
evolution of judicial independence provide the basis for its criticism of Mr
Justice Berger’s remarks. The Committee declares:
The history of the long struggle for separation of powers and the independence
of the judiciary, not only establishes that the judges must be free from political
interference, but that politicians must be free from judicial intermeddling in
political activities. This carries with it the important and necessary concomitant
result – public confidence in the impartiality ofjudges – both in fact and in
appearance. I
The Committee is content to identify these principles as emerging from
history; it does not examine why they exist in order to determine their scope.
9 bid., 414-5. I have selected the strongest language.
IOIbid., 398-401.
“Ibid., 389.
McGILL LAW JOURNAL
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Indeed, the Committee bases its assertion that the doctrine of the separation
of powers requires judicial abstention from politics exclusively on 1) the
fact that the achievement of judicial independence in Canada resulted in
the banning ofjudges from legislative decision-making, 12 2) the continuing
denial in Canada of the right to vote to federally-appointed judges, 13 and
3) selected opinions expressed in the British House of Commons and by
Lord Denning arguing that judges should refrain from commenting on po-
litics. ‘ 4 The notion that speaking on political issues threatens a judge’s im-
partiality is supported by the rhetorical question:
If Justice Berger should be called on to interpret … the meaning to be given
to the word “existing” in the phrase “the existing aboriginal and treaty rights
of the aboriginal peoples of Canada”, would the general public have confidence
now in his impartiality? After Justice Berger spoke publicly on the necessity
for Quebec retaining a veto, his brother judges in Quebec were called on to
determine whether such a right existed.’5
According to the Committee, then, commenting on “political” matters
compromises the independence and impartiality of the judiciary. But what
is a “political” matter? Although the Committee does not directly address
this key point, it appears that the sole requirement is that the subject be
“controversial”. Responding to a portion of Chief Justice McEachern’s ar-
gument that was based on British precedents, the Committee does appear
to introduce a further distinction between “statements of a general nature”
which are “not critical of the policy of parliament embodied in a politically
controversial bill” and political comments properly so-called. 16 It is prob-
lematic, however, whether this distinction can survive within the framework
of the Committee’s analysis. The Committee asserts that speaking on public
issues not only offends against the principle of the separation of powers,
but also compromises the judge’s impartiality. Impartiality concerns the
judge’s predisposition to decide a case in a particular manner. Whether or
not an expression of opinion indicates such a predisposition must depend
on the judge’s state of mind, not on Parliament’s interest in the matter. In
fact, the Committee does not rely on this distinction: it goes on to distinguish
English precedents generally, asserting that there are major differences be-
tween the English and Canadian systems of government.17
2Ibid., 386-7.
131bid., 391.
141bid., 388-9.
1Ilbid., 391.
’61bid., 389.
’71bid.
1984]
THE BERGER AFFAIR
A further consideration emerges from the Committee’s Report: the no-
tion that making political statements constitutes a misuse for personal ends
of one’s authority as a judge. The Committee states:
If a judge feels compelled by his conscience to enter the political arena, he has,
of course, the option of removing himself from office. By doing so, he is no
longer in a position to abuse that office by using it as a political platform. One
would not have expected Justice Berger’s views to have been given the media
attention they were given if he had not been a judge but merely a politician
expressing his views in opposition to other politicians.’ 8
There are therefore three distinct principles underlying the Committee’s
conclusions: 1) the doctrine of the separation of powers, by which the ju-
diciary is secured autonomy from the other branches of the state in order
to allow judges to perform their function free from political interference; 2)
the principle that judges should be impartial, so that litigants have their
rights determined not according to personal animosity or favour, but ac-
cording to legal principles; and 3) the notion that judges should not use the
authority of their office to disseminate their personal opinions. A fourth
principle –
that the conduct of judges should not injure the moral integrity
although not raised in the Berger case, 19 also limits extra-
of the Bench –
judicial comment. By exploring the rationale for each of these principles, I
hope to deduce more precise tests for determining the bounds of judicial
propriety.
II. A Theoretical Determination of the Limits to Extra-judicial Comment
A. The Separation of Powers
1. Functional and Institutional Aspects of the Independence of the Judiciary
This is not the place to attempt a comprehensive re-statement of the
theory of the separation of powers. Some general discussion will be nec-
essary, however, in order to precisely identify the reasons for preserving the
‘Slbid., 391.
19The only possible exception to this is Mr Justice Addy’s letter of 19 November 1981. At
one point he says: “It appears to me that Mr. Justice Berger has not the faintest idea of the
position and role of a judge in the British parliamentary system to-day. On the other hand, if
he has, then he is guilty of misconduct which, in my view at least, would tend to cause far
greater harm to the administration of justice than sleeping with a prostitute or driving whilst
impaired.” Ibid., 398. It is hard to believe that Mr Justice Addy intended to imply that Mr
Justice Berger’s actions were as morally reprehensible as those of a judge consorting with
prostitutes. A more charitable interpretation would be that Mr Justice Berger’s statements were
more likely to cause lasting harm because of their implications for the independence and
impartiality of the judiciary.
REVUE DE DROIT DE McGILL
[Vol. 29
independence of the judiciary. Until the reasons are made clear, it is difficult
to determine what conduct may potentially harm that independence.
The notion that the three traditional components of the state –
the
legislature, executive, and judiciary –
should be given autonomy from each
other flows from the preoccupation of liberal political theory with the pro-
tection of individual rights. The authors of The Federalist Papers, for ex-
ample, argue that tyranny would result from the unification of the three
powers:
When the legislative and executive powers are united in the same person or
body, … there can be no liberty, because apprehensions may arise lest the
same monarch or senate should enact tyrannical laws to execute them in a
tyrannical manner. … Were the power of judging joined with the legislative,
the life and liberty of the subject would be exposed to arbitrary control, for
the judge would then be the legislator. Were it joined to the executive power,
the judge might behave with all the violence of an oppressor.20
According to this view, then, the institutions of the state are divided in
order to lessen the opportunity for the abuse of state power.
There is some ambiguity, however, as to precisely how division will
control abuse. Assuming that the legislature, acting within its constitutional
authority, enacts a bad law, can the judiciary rightfully refuse to apply the
law in the manner intended by the legislature, in effect rewriting the law?
Some of the advocates of the separation of powers would undoubtedly an-
swer “yes”; in opposing the use of a legislative chamber as a court of appeal,
for example, Hamilton says, “From a body which had had even a partial
agency in passing bad laws [i.e. from the legislative chamber] we could rarely
expect a disposition to temper and moderate them in the application. The
same spirit which had operated in making them would be too apt to operate
in interpreting them. . .”. Thus, Hamilton seems to condone the nullification
of legislative intent through the courts purposefully altering the effect of a
statute.2’ Such a result, however, runs counter to the now commonly-ac-
cepted principle that the primary law-making authority should be vested in
democratically-elected representatives.
But the doctrine of the separation of powers can be justified in func-
tional terms, thereby maintaining its consistency with modem democratic
theory. The judiciary performs a function substantially different from that
of the legislature or executive. The proper fulfillment of this role requires
20Madison, quoting from Montesquieu’s De l’esprit des lois in C. Rossiter, ed., The Federalist
Papers (1961) “No. 47”, 300, 303 (emphasis in the original).
2 1Hamilton, in Rossiter, supra, note 20, “No. 8 1”, 481,483. Sir Ivor Jennings argues forcefully
that Lord Coke similarly believed courts could overrule an act of Parliament which was “against
common right and reason” or “repugnant”: Jennings, The Law and the Constitution, 51h ed.
(1959) App. III, 318-29.
19841
THE BERGER AFFAIR
that judges be autonomous from the other two branches of the state. The
granting of this autonomy does not offend against democratic principles,
because the elected members of the legislature retain the primary law-mak-
ing power. Although judicial law-making does occur, it is on a much smaller
scale, constrained by, inter alia, the legislature’s enactment of statutory rules.
In the familiar words of Holmes J.: “judges do and must legislate, but they
can do so only interstitially; they are confined from molar to molecular
motions.”22
What are these distinctive functions? 23 The legislature’s role is to enun-
ciate general policy orientations and enact the means to achieve them. It
declares society’s will, establishing broad communal objectives. The exec-
utive is charged with carrying into effect such legislative policy, thus pur-
suing communal aims in practice. And the judiciary’s function is the resolution
of concrete clashes between different individuals, and between individuals
and public authorities. In adjudicating such disputes, the judiciary seeks to
reconcile the interests of individuals to, depending on the case, the en-
deavours of society as a whole, or the interests of other individuals. 24 Judges
are not so much concerned with large questions of policy as they are with
the resolution of very particular conflicts. They exist to ensure that indi-
vidual interests are taken into account, that the latter are not simply overrun
in the rush to achieve a communal goal. In short, courts protect individual
rights against the pure instrumentalism of the legislature and executive.25
This function is reflected in a particular style of decision-making, which
calls upon some notion of procedural fairness or “the rule of law” to ensure
22Southern Pacific Company v. Jensen, 244 U.S. 205, 221 (1917).
23The following discussion necessarily simplifies the attribution of roles. Law-making func-
tions are often performed by the Executive and the courts. Similarly, Parliament and the
Executive sometimes act as judicial bodies. However, in general the differences in function are
as described here.
24Not all interests are recognized and protected by the courts, and indeed the extent of
protection has varied through time. This does not, however, reduce the force of the argument
presented in the text. It is only necessary that there be some individual interests that are
recognized by legislative or judge-made rules. If such a sphere of private rights exists, even if
it is subject to continual change, courts protect against the unauthorized and (to a lesser extent)
inadvertent infringement of those rights.
25This characterization of the judicial role is common in the writing of judges. Thus, the
Hon. I.C. Rand wrote of the independence of the judiciary:
It enables the guarantee of security to the weak against the strong and to the in-
dividual against the community; it presents a shield against the tyranny of power
and arrogance and against the irresponsibility and irrationality of popular action,
whether of opinion or of violence; it enables the voice of sanity to rise above the
turbulence of passion; and it is to be preserved inviolate.
I.C. Rand (Commissioner), Royal Commission of Inquiry, re: The Honourable L.A. Landre-
ville (Canada, 1966) 95-6. See also Dickson, The Role and Function ofJudges (1980) 14 L.S.U.C.
Gaz. 138, 142.
McGILL LAW JOURNAL
[Vol. 29
that legitimate interests are fully heard, and fairly considered. Depending
on the nature of the interests in question, the appropriate mode of decision-
making may include procedural safeguards (for example, requiring that lit-
igants have the opportunity to articulate their interests, or limiting the types
of evidence that might be relied upon) and prescriptions concerning the
basis on which a decision should be taken (for example, demanding that
like cases be treated alike, or requiring that if a validly-enacted rule governs
the situation, that rule be considered in reaching a decision). It is not sur-
prising that such considerations play a key role in administrative law. A
central issue in the development of the judicial review of administrative
action has been the determination of what decisions made by the executive
should be subjected to at least some of the safeguards of judicial decision-
making. Recently, this determination has come to be based primarily on
the extent to which the relevant decision affects significant individual in-
terests. 26 When a decision does have a direct and substantial impact on an
individual, the courts will require that safeguards appropriate to the nature
of the decision be taken (for example, allowing the person implicated an
opportunity to address the tribunal). Thus, the courts insist that decisions
affecting in a major way individual interests, even if made by administrative
‘agencies, come at least partially under the control of a tribunal independent
of the executive. In a real sense, then, judicial review represents the judi-
ciary’s assertion of its role as the bastion of individual rights- within the
framework of the state.
The above discussion, stressing the value of institutionally separating
the pursuit of communal goals from the protection of individual interests,
would be fully applicable to a state where the legislature was sovereign. But
in Canada, where legislative and executive power is limited by a written
constitution, there is a further need for an independent judiciary. A body
which determines its own limits is not limited at all. Therefore, the desire
to have constraints on legislative power such as-those-embodied-in Canada’s
federal division of powers and in the new Canadian Charter of Rights and
Freedoms demands their enforcement by an independent entity, the courts. 27
There are therefore strong reasons, rooted in the different nature of the
functions performed by the three components of the state, for preserving
the independence of the judiciary. The preservation of the integrity of these
functions is accomplished through institutional structures. These structures
have assumed characteristics appropriate to the respective components’
26See, e.g., Martineau v. Matsqui Institution Disciplinary Board [1980 1 S.C.R. 602, 618-9,
(1979) 106 D.L.R. (3d) 385, 402-3 per Dickson J., as he then was.
27This argument is essentially the same as that adopted by the Supreme Court of the United
States in Marbury v. Madison, 5 U.S. 49, 68-70 (1803).
1984]
THE BERGER AFFAIR
functions. Because the legislature and executive serve to enunciate and ex-
ecute the will of the community at large, for example, they have, through
the responsibility of elected officials, been made representative of and ac-
countable to the mass of the population. Judges, on the other hand, are
appointed by the executive, and are guaranteed security of tenure. Election,
it is believed, would be incompatible with their role as a bulwark against
majoritarian excesses, concerned more with protecting individual interests
than with pursuing communal goals. Thus, alongside the different functions
performed by the branches of the state are radically different institutional
characteristics. Because both considerations affect greatly the representa-
tiveness, authority, and ability to function of the components of the state,
both must be considered in any discussion of the modem independence of
the judiciary.
The above account sketches the functional basis and institutional struc-
ture of judicial autonomy. I will now examine the extent to which judges’
freedom to speak extra-judicially is constrained by the need to maintain
this independence.
2. Limits on Extra-judicial Speech Derived from the Threat Posed by the
Judiciary to the Autonomy of the Legislature and Executive
If one is contemplating restricting the conduct of judges on the basis
of the doctrine of the separation of powers, one must of course examine
the extent to which their conduct might impair the proper functioning of
the other two branches of the state. Now, it is inconceivable that the adop-
tion by the legislature or the executive of a judicial mode of decision-making
(ensuring the full consideration of individual interests) would of itself be
objectionable. Extensive judicial influence over law-making and adminis-
tration is opposed not because these operations should necessarily be con-
cerned with communal goals to the exclusion of individual interests, but
because those who perform these operations must be responsive to the will
of the majority. Thus, it is for institutional reasons that judicial legislation
is restricted to the interstices, “confined from molar to molecular mo-
tions”.28 Does this concern with democratic control over law-making justify
the imposition of constraints on extra-judicial free speech?
The literature on the separation of powers has not, by and large, been
concerned with a possible threat by the judiciary to the autonomy of the
28Southern Pacific Company v. Jensen, supra, note 22.
REVUE DE DROIT DE McGILL
[Vol. 29
legislature and executive. Indeed, the judiciary is normally seen as the weak-
est of the three bodies. Hamilton says, for example:
Whoever attentively considers the different departments of power must per-
ceive that, in a government in which they are separated from each other, the
judiciary, from the nature of its functions, will always be the least dangerous
to the political rights of the Constitution; because it will be least in a capacity
to annoy or injure them. The executive not only dispenses the honors but holds
the sword of the community. The legislature not only commands the purse
but prescribes the rules by which the duties and rights of every citizen are to
be regulated. The judiciary, on the contrary, has no influence over either the
sword or the purse; no direction either of the strength or of the wealth of the
society, and can take no active resolution whatever. It may truly be said to
have neither FORCE nor WILL but merely judgment; and must ultimately
depend upon the aid of the executive arm even for the efficacy of its judgments.
This simple view of the matter suggests several important consequences. It
proves incontestably that the judiciary is beyond comparison the weakest of
the three departments of power; that it can never attack with success either of
the other two; and that all possible care is requisite to enable it to defend itself
against their attacks. 29
The immense power of the executive and legislature relative to that of the
judiciary is therefore the result of the former bodies’ control over the coer-
cive tools of the state and over public funds. It is further buttressed by their
greater legitimacy as policy-makers, flowing from the representative nature
of legislative and high executive office; these bodies can claim to speak for
at least a plurality, and perhaps a majority, of citizens. In view of this
imbalance of power, the mere expression of opinions by judges surely cannot
pose a threat to the ability of the legislature and executive to properly per-
form their functions. The only possibility of effective judicial control over
legislation arises not in extra-judicial pronouncements, but in the very per-
formance of judicial duties, when judges are able, through their interpre-
tation of a statute or constitution, to alter the effect of that statute, or impose
constitutional limitations on state power. Mere extra-judicial comment, al-
though it may embarrass the legislative and executive authorities in the
same way that the comments of any respected citizen might, cannot result
in the subjection of law-making or law-executing power to the will of the
29Hamilton, in Rossiter, supra, note 20, “No. 78”, 464, 465-6 (footnotes omitted). See also
Hamilton, ibid., “No. 81”, 484-5 and Madison, ibid., “No. 48”, 308, 309-10. The relative
weakness of the judiciary is also indicated by the history ofjudicial independence. The achieve-
ment of this independence was predominantly a matter of separating and protecting the judicial
function from the control of the other two bodies, not vice versa. See Dion, Plus de d6nocratie
pour les juges (1981) 41 R. du B. 199, 201-2; S. Shetreet, Judges on Trial[:] A Study ofthe
Appointment and Accountability of the English Judiciary (1976) 3-13; and Lederman, The
Independence of the Judiciary (1956) 34 Can. Bar Rev. 769 and 1139. It is noteworthy that
much of the historical discussion in the Report similarly concerns the struggle to protect judges
from interference: Report and Resolution, supra, note 1, 386-9.
1984]
THE BERGER AFFAIR
appointed judiciary. Thus, there is no reason, on this basis alone, to restrict
extra-judicial comment.
This is, I believe, the correct position in Canada today. But at the time
when Canada achieved judicial independence, while most of the discussion
did indeed concern the threat to the judiciary from the executive or legis-
lature, some of the debate was phrased in terms of freeing the executive and
legislature from judicial interference. The explanation for this lies in the
historical coincidence between the struggles for the independence of the
judiciary and for responsible government in Canada during the early nine-
teenth century. Popular control over the executive and legislature had not
been achieved prior to the agitation for an independent judiciary. Although
there was an elected Assembly in each province, the members of the upper
houses (the “Legislative Councils”) and the Executive Councils were ap-
pointed. Much of the executive and legislative power was in the hands of
an oligarchy: the Chateau Clique in the lower province, and the Family
Compact in Upper Canada. The reform elements in the Assembly competed
with this oligarchy for influence over the executive and control of the leg-
islative process. Now, virtually all the judges were members of the ruling
cliques. Several of them sat on the Legislative and Executive Councils. In
order to bolster its own influence, then, the reform party combined its
demand that executive ministers be responsible to the Assembly with an-
attack on the political role of the judiciary.30 The extent to which this ob-
jection was based on principle is doubtful (although constitutional arguments
were marshalled in support of the reform position), as is evident from the
case of Mr Justice Robert Thorpe, puisne judge of the Upper Canadian
Court of King’s Bench, one of the few judges who championed the cause
of reform. His election to the Upper Canada House of Assembly in 1806
was disputed by the losing candidate on the grounds that allowing judges
to sit in the Assembly offended against the doctrine of the separation of
powers. The House, however, sitting as Committee of the Whole, upheld
the validity of the election. The reform party (the one ostensibly in favour
of removing judges from politics) supported Mr Justice Thorpe, while the
Tories voted against him.31 Thus, the rhetoric attacking the inordinate in-
fluence of judges on legislative and executive decision-making must be
30For historical accounts linking the advocacy of judicial independence to the demand for
responsible government, see Mignault, L’ind~pendance desjuges (1927-28) 6 R. du D. 475, 486
et seq.; Riddell, Judges in the Parliament of Upper Canada (1918-19) 3 Minn. L.R. 163 and
244, 172 et seq.; Riddell, Judges in the Executive Council of Upper Canada (1921-22) 20 Mich.
L.R. 716, 720 et seq.; Brode, Of Courts And Politics: The Growth OfAn Independent Judiciary
In Upper Canada (1978) 12 L.S.U.C. Gaz. 264; Lederman, supra, note 29, 1149. That a similar
situation existed in Nova Scotia is indicated by Lederman at 1154-5. It is in this light that the
letter from the Colonial Secretary, Lord Glenelg, quoted in Report and Resolution, supra, note
1, 386-7, must be understood.
31Riddell, Judges in the Parliament of Upper Canada (1918-19) 3 Minn. L.R. 244, 246-9.
McGILL LAW JOURNAL
[Vol. 29
understood as the product of very particular historical circumstances. Once
popular control of the legislature and executive was established, judges were
no longer seen as a threat.
3. Limits on Extra-judicial Speech Derived from the Threat Posed by the
Executive and Legislature to the Autonomy of the Judiciary
There are two ways in which the making of extra-judicial comments
may serve to undermine the judicial function itself: 1) judges’ comments
may so annoy the executive or legislature that the offended body turns on
the judiciary, reducing the latter’s independence; 2) judges may, by partic-
ipating in public debate, develop an overriding concern with broad com-
munal goals, thereby undercutting their role as the protectors of the individual.
a. The Fear that the Judiciary Will Alienate the Legislature and Executive,
Provoking Retaliation
Clearly the executive and legislature have the tools at their disposal to
undermine judicial independence, should they wish to do so. It is very
difficult, however, to establish theoretical limits to extra-judicial free speech
based on the fear of such action. Any limitation would have to be a political
accommodation based on an awareness of the gravity of the threat and a
calculation of what would provoke it. Thus, any restriction of judges’ be-
haviour would depend on the particular circumstances, and is not suscep-
tible of statement in a general rule. One would only hope that such an
accommodation would not be necessary in Canada, the acceptance of the
principle of independence being such that the courts could appeal to public
opinion to counter a potential threat.
Beyond these empirical considerations, however, to constrain the con-
duct of judges on this basis would raise theoretical objections flowing from
the very nature ofjudicial independence. Independence is cherished because
it allows judgment untrammeled by the desires of the legislature or exec-
utive. If, however, judges would modify their conduct merely in order to
avoid annoying these bodies, has not the judiciary already surrendered its
independence? The approval or disapproval of the legislature and executive
is an unsafe basis on which to build a theory of permissible judicial con-
duct. 32 Moreover, as Ion Dion has argued, judicial reticence may itself
32Yves Ouellette, in La sterilisation politique des juges (1968) 3 R.J.T. 167, 169, although
arguing for severe limitations on what judges may say extra-judicially, rejects in strong terms
the tendency to base those limitations on the fear of reprisal: “Au Canada, l’obligation de
r6serve des juges est souvent consid6r6e comme la ranvon ou la contrepartie de la s6curit6 et
de l’ind6pendance relative dont ilsjouissent…. I1 y a dans cette conception de type contractuel
et d’esprit britannique un 616ment de marchandage assez d6testable et indigne de la fonction
judiciaire.”
1984]
THE BERGER AFFAIR
serve to undermine the independence of judges by impairing public un-
derstanding of the role of judges and making judges appear to acquiesce in
all projects of the executive and legislature:
la bienveillance de l’ex&utif et du l~gislatif qu’on esp~re obtenir pour le ju-
diciaire par le silence des juges pourrait bien souvent etre illusoire et d~servir
la cause de la justice. Loin de garantir l’autonomie du judiciaire, le silence des
juges pourrait bien plut6t constituer l’une des sources de sa d~pendance A
l’gard des deux autres pouvoirs. 33
b. The Fear that the Judiciary Might Adopt a Legislative Approach to
Decision-making, Forsaking the Judicial Function
This threat to the independence of the judiciary is more subtle. It is
not based on ill will towards the judiciary, but rather on the fear that, through
judges’ own actions, communal policy goals will come to dominate the
adjudicative process, causing judges to neglect their primary role –
the full
consideration of individual interests. This is sometimes treated as a form
of partiality or bias, 34 but I would submit that it is analytically separate.
The problem of bias is concerned with the entry of irrelevant factors into
the reasoning process. Communal policy goals may well be relevant, and
should therefore be considered in reaching a proper decision.35 The dis-
placement of the judicial function by the legislative function is not con-
cerned with the mere admission of policy arguments, but with their domination
of the decision-making process. Adjudication should not be so preoccupied
with enunciating and implementing communal goals that the procedural
and substantive protections which are the essence of judicial decision-mak-
ing are subverted. This desire to keep the judiciary uncontaminated by the
strongly instrumental, majoritarian impulses of the legislature is reflected
in the following argument by Hamilton against the use of legislative bodies
as judicial decision-makers:
on account of the natural propensity of such bodies to party divisions, there
will be… reason to fear that the pestilential breath of faction may poison the
fountains ofjustice. The habit of being continually marshaled on opposite sides
will be too apt to stifle the voice of both law and of equity.36
33Dion, supra, note 29, 203.
34Perhaps this is what the Committee is doing in Report and Resolution, supra, note 1, 391,
when it implies that Mr Justice Berger’s statements in favour of native rights compromised
his impartiality.
35See pages 394-7 below.
36Rossiter, supra, note 20, “No. 81”, 484.
REVUE DE DROIT DE McGILL
[Vol. 29
In the British North American context, Joseph Howe expressed with vigour
the same need to isolate the judicial function from legislative influences
when he declared in the Nova Scotia legislature:
Let us … act decisively on that truly British idea, that judges should be kept
from the heats and contentions of politics. While we battle with each other in
the open fields of political strife, while the conflicts of opinion rage without
and within these walls, while we struggle and contend for the mastery, let us
have some sacred tribunal to which when blinded and agitated by passion or
interest, we can all with confidence appeal. 37
Of course, the possibility that the judicial function will be undermined
is present even when judges do not make extra-judicial statements; political
views secretly held can pervert judgment. Are there certain sorts of state-
ments which increase this likelihood, or at least raise a reasonable suspicion
that the judicial mode of decision-making has been compromised?
The mere expression of general opinions on matters of principle does
not suggest that the judge will ignore individual interests in his desire to
reach a cherished political goal. All judges are expected to have opinions, 38
yet this is not considered sufficient to undermine adherence to procedural
and substantive rules. To put this adherence in doubt, the gap between the
judge’s action in his personal capacity and his decision-making office must
be bridged; there must be a reasonable suspicion that the judge’s personal
opinions will dominate his performance of official functions. This gap is
not insignificant. Institutions exist precisely to separate the exercise of ju-
dicial duties from action in one’s personal capacity: these include the phys-
ical arrangement of the courtroom, the ceremonial robes and procedures,
the professional ethic of judges, and various formal devices (procedural
rules, rules of evidence, the need to justify one’s decision, control by an
appellate court). The mere extra-judicial expression of opinion, then, cannot
be said to raise a reasonable suspicion that judicial decision-making has
been subverted.
The line is crossed, I believe, when the judge identifies himself closely
with a particular faction in the legislature or executive, or when he lobbies
consistently and forcefully for a specific political goal –
in short, when his
7W. Annand, The Speeches and Public Letters of the Honourable Joseph Howe (1858), vol.
3
1, 141, 106, quoted in Lederman, supra, note 29, 1155. For Upper Canadian statements in the
same vein, see Brode, supra, note 30, 268-9.
38See pages 390-4 below.
1984]
THE BERGER AFFAIR
385.
activities become partisan in nature. 39 When this occurs, many of the con-
siderations which lead the legislature or the executive to pay insufficient
attention to individual interests begin to operate on the judge. If he joins
the day-to-day struggle for a particular policy outcome, he may increasingly
be tempted to decide matters solely on the basis of whether they conduce
to that end, taking insufficient account of other interests involved in the
decision. And in order to muster popular support for the desired policy or
party, the judge may, in his adjudication of controversial disputes, be eager
to appease public opinion. Furthermore, identification with a particular
faction in a political debate may generate animosities or alliances tending
to undermine his impartiality. In 1906, while debating in the British House
of Commons the alleged misconduct of Sir William Grantham (a judge of
the King’s Bench Division), then Attorney-General Sir John Walton de-
scribed the nature of partisanship which would justify removal. His com-
ments reflect the concerns just described, with the added element that the
judge must realize that he is perverting judgment:
I understand partisanship to mean a conscious partiality leading a Judge to be
disloyal even to his own honest convictions. I understand it to mean that the
Judge knows that justice demands that he should take one course but that his
39Something like this line is, I believe, supported by the English materials on judicial mis-
conduct collected by Shetreet, supra, note 29. While there is considerable diversity in the
opinions given by those interviewed as to what kinds of extra-judicial comments are permissible
(see especially 341-5), there is more agreement when one examines the cases in which judicial
conduct was criticized in Parliament. In many of the instances concerning comments by judges
on political matters, the partisanship was evident in the course of the judge’s official duties:
see Shetreet, 140-1, 145-6, 149-50, 169, 171, and 318-9. It is indicative of the licence granted
judges that in none of these cases was the judge removed from office; at most his conduct was
criticized during debate in the House. As for extra-judicial comments, judges have been rebuked
for 1) attacking in the House of Lords and on a political platform the plan for an Irish Free
State (Shetreet, 257-8, 340, and 345-6), and 2) violently attacking the House of Commons itself
(Shetreet, 149). Each of these showed evident partisanship. Mild criticism was directed at Lord
Chief Justice Hewart in the 1930’s for writing a series of controversial articles for the News
of the World and publishing the polemical The New Despotism, but this criticism did not
induce him to abandon his journalistic pursuits (Shetreet, 176, 328-9, and 342). Lord Chief
Justice Goddard’s “outspoken campaign” against the abolition of capital punishment drew
both criticism and support during the 1950’s (Shetreet, 177 and 184-5). When, in 1876, Irish
Lord Justice Christian wrote a letter to The Times levelling certain charges against the gov-
ernment, Prime Minister Disraeli declined to criticize him (Shetreet, 175). That something
more than mere controversy is necessary to make remarks objectionable is also indicated by
the frequent remarks by prominent English judges on controversial topics: e.g. Sir Edmund
Davies’s criticisms of the right of the accused to remain silent in The Role of The Judge in
Contemporary Society (1971) 5 L.S.U.C. Gaz. 210, 217-8; Lord Parker’s comments to the same
effect (Shetreet, 327); Lord Justice Scarman’s call f6r an entrenched Bill of Rights in the United
Kingdom (Shetreet, 328); and Lord Denning’s criticisms of the powers of trade unions in What
Next in the Law (1982) 321-2.
McGILL LAW JOURNAL
[Vol. 29
political alliance or political sympathies may be such that he deliberately chooses
to adopt the other.40
I am not concerned here with determining whether a judge should be re-
moved from the bench for alleged partisanship, but rather with suggesting
guides to extra-judicial conduct in order to avoid partisanship arising. It
seems, then, that one must guard against unconscious as much as conscious
partisanship. To create a reasonable apprehension that partisanship exists,
the participation in political matters would have to be intense, the judge
clearly endorsing one particular outcome. The following types of extra-ju-
dicial comment would therefore appear to be improper: sponsoring or crit-
icizing a political party; personal attacks on public figures; the strong advocacy
of, or opposition to, particular measures under consideration by the legis-
lature or executive.4′ As the adjective “strong” implies, whether conduct is
objectionable is often a matter of degree. Most commentators distinguish,
for example, between permissible and impermissible criticism of a statute.42
If the foregoing analysis is right, this determination should be made on the
basis of whether the comment amounts to the judge identifying himself
closely with the struggle for one particular option. By this test, the simple
criticism of legislative or executive action would not constitute improper
conduct.
In summary, it is not precise enough to say that, at least for reasons
of maintaining the independence of the judiciary, judges should avoid con-
troversy in their extra-judicial statements. The creation of a reasonable
suspicion that a judge will replace protection of individual interests with
the overriding concern for communal goals characteristic of the legislature
or executive does not depend upon the controversy which is elicited. Rather,
it depends upon the apparently wholehearted embracing by that judge of a
partisan approach to public issues.
273.
40Grantham’s Case, 160 Pad. Deb., 4th Ser., 394 (1906), quoted in Shetreet, supra, note 29,
4’This would appear to be the best rationale for preventing judges from sitting in the Cabinet,
and for the current opposition to judges serving on Royal Commissions concerned with for-
mulating public policy. Dion, for example, says: “Les conditions particulires du d~roulement
de ces enqu~tes risquent de crrer l’impression que le judiciaire est en collusion avec le gou-
vernement pour l’accomplissement des basses oeuvres de ce dernier ou qu’il s’ rige en bras
vengeur de la soci6t6 contre les individus.” Du social, du politique et dia judiciaire. Pour l’au-
tonomie du judiciaire (1978) 38 R. du B. 769, 782.
42See, for example, Shetreet, supra, note 29, 315-8; Dion, supra, note 29, 218-21; G. Gall,
The Canadian Legal System, 2nd ed. (1983) 202; and the authorities cited infra, note 66.
1984]
THE BERGER AFFAIR
c. The Special Case of Constitutional Questions and Matters Affecting the
Administration of Justice
There are two instances in which strong advocacy by judges is per-
missible (although judges should still refrain from endorsing a particular
political party or politician): 1) when constitutional matters are involved,
and 2) when the administration of justice is in issue.
Why should constitutional matters be treated differently from ordinary
legislation? The changing of a constitution is not merely a particularly im-
portant type of law-making. The constitution forms the basic institutional
and normative framework within which judges, legislators, and civil serv-
ants operate.43 It therefore can never be the exclusive preserve of one branch
of the state, for the structure defines the duties and powers of all. The
autonomy guaranteed each branch under the constitution requires that all
branches be able to comment on constitutional matters (although this right
to comment need not be enshrined in a particular amending formula –
it
may be permitted informally).44
431 use “constitution” in its wide sense, as “the collection of rules which establish and regulate
or govern the government.” As K.C. Wheare states in Modern Constitutions, 2nd ed. (1966) 1:
These rules are partly legal, in the sense that courts of law will recognize and apply
them, and partly non-legal or extra-legal, taking the form of usages, understandings,
customs, or conventions which courts do not recognize as law but which are not
less effective in regulating the government than the rules of law strictly so called.
44In fact, Canadian judges have on occasion made controversial statements extra-judicially
on constitutional matters. In 1840, John Beverly Robinson, Chief Justice of Upper Canada,
published a book-length criticism of the proposed union of the Canadas: Canada and the
Canada Bill; being an examination of the proposed measure for the future government of Canada;
with an introductory chapter containing some general views respecting the British provinces in
North America (1840). To justify his action he writes, at page vi:
If the course [i.e. the union of Canada], which has always appeared to me to be on
several accounts inexpedient, should be adopted, and should proudce [sic] those
unfortunate results which are apprehended by me, … I should have to consider
hereafter, and perhaps under painful circumstances, upon what satisfactory ground
I had suppressed the public declaration of my sentiments at so critical a moment,
when my accidental presence in England had enabled me to state them with con-
venience, and possibly not wholly without effect. I could only account for the omis-
sion by acknowledging an apprehension that by openly expressing my opinions
upon a public question, however respectfully, I might incur the displeasure of the
Government, and that I had therefore been silent; a reason which, if it should have
become necessary to give it, would not have done honour to the Government, or
to myself.
Of course, when Chief Justice Robinson made these statements, the principle of judicial in-
dependence had not yet become firmly ensconced in Canada; Chief Justice Robinson had
himself sat on the Executive Council (until 1831), and until recently had served as Speaker of
the Legislative Council. See Brode, supra, note 30, 268-70. In 1963, a judge of the Quebec
Court of Appeal, Bernard Bissonnette, published Essai sur la Constitution du Canada (1963),
setting forth his views on constitutional reform. In 1967, Mr Justice Bora Laskin (as he then
was) delivered a paper at the University of Saskatchewan strongly criticizing the Fulton and
Fulton-Favreau constitutional amending formulas, and opposing any decentralization of leg-
islative authority in the Canadian federation: Reflections on the Canadian Constitution After
the First Century (1967) 45 Can. Bar Rev. 395, 397, 399-401.
REVUE DE DROIT DE McGILL
[Vol. 29
Moreover judges have a unique perspective on the proper organization
and scope of state power which cannot be represented by the legislature. As
noted above, 45 judges serve to reconcile communal goals to individual in-
terests, and to adjudicate conflicts between individuals. Thus, they see the
effect of the law and state institutions on the lives of many particular persons.
They have a great awareness of the relationship to the state of individuals
who may not belong to vocal minorities. In advocating the independence
of the judiciary, we seek to protect the interests ofjust such people, interests
which we feel would be insufficiently guaranteed by other state institutions
based on majoritarian principles. It would be odd if, precisely when the
basic norms and institutions of society are in question, these values could
not be articulated because indulging in vigorous debate offended our notions
of judicial propriety. When the constitution is fixed, the judiciary can gen-
erally preserve these values through upholding them in their decisions; it
is not ordinarily necessary to lobby for their acceptance. But when the
constitution is in flux, fundamental individual rights may be compromised
through the amending process, and after the reform the judges, faced with
a new normative structure on which they must base their decisions, would
have no choice but to acquiesce in the change. Surely in such a situation it
is appropriate that the concerns of judges be voiced extra-judicially before
the courts are faced with a fait accompli.
Judges must similarly have wide licence to speak on matters which
concern the administration of justice. The independence of the judiciary is
not and cannot be absolute; the proper performance of the judicial function
requires a certain measure of cooperation from the legislature and executive
(for example, the provision of adequate funds for judicial services, the ex-
istence of a workable set of procedural rules and efficient mechanisms for
executing judgments). In order to preserve its efficacy, the judiciary must
be free to advocate measures conducive to the proper performance of its
function, and to oppose policies which undermine it. Thus, judges often
speak out on such topics as judicial control of administrative action, plea-
bargaining, sentencing, and the availability of legal aid. Indeed, the Canadian
Judicial Council recognizes “matters that directly affect the operation of the
courts” as the only exception to its recommendation that “members of the
Judiciary should avoid taking part in controversial political discussions.. .”. 4 6
45See page 377.
46Report and Resohtion, supra, note 1, 379. Ouellette, who otherwise takes a very strict
approach to extra-judicial statements, recognizes the need for judges to speak out to protect
judicial prestige: supra, note 32, 171.
1984]
THE BERGER AFFAIR
389
B. The Duty of Impartiality
The need to maintain the real or apparent impartiality ofjudges is often
used to justify strict limits on extra-judicial comment. For example, Glenn
argues:
Le juge qui se prononce sur une question hors cours s’associe publiquement
A une position donnfe, qui devient la sienne. II se contamine A travers chaque
expression publique et chaque prise de position, en mati~re constitutionnelle
aussi bien qu’en matire de droit priv6, et A travers chaque discours, chaque
livre et chaque rapport de commission royale. … Le juge ne devrait pas avoir
de libert6 d’expression. La lui accorder, c’est attaquer la neutralit6 et ainsi
l’ind~pendance de la magistrature. 47
The most common rationale for restrictions based on the duty of impar-
tiality is that judges should, at the outset of a trial, have no predisposition
favouring one party or another, that speaking extra-judicially on public is-
sues may indicate such a predisposition, and that therefore judges should
refrain from contentious public statements. 48
Certainly, impartiality is a cardinal virtue in a judge. For adjudication
to be accepted, litigants must have confidence that the judge is not influenced
by irrelevant considerations to favour one side or the other.49 But do state-
ments on broad issues of public policy or law raise such an apprehension?
I think not. The duty of impartiality forbids adjudication when the judge
is biased with respect to the persons involved in the dispute, or when it
appears that he has prejudged the particular case at bar, but it does not
47Glenn, La responsabilit des juges (1983) 28 McGill L.J. 228, 277, note 185. See also
Ouellette, supra, note 32, 169; Shetreet, supra, note 29, 324; Canadian Minister of Justice Mark
MacGuigan’s comments, reported in The [Toronto] Globe and Mail (29 April 1983) 10; and
Report and Resolution, supra, note 1, 389-91.
481f the judge is biased in a particular matter, he must of course disqualify himself from
hearing that case. Because this remedy exists, it is not immediately obvious why judges must
shun all situations that may threaten their impartiality. But as Shetreet, supra, note 29, 324,
indicates, disqualification may involve considerable inconvenience and expense. For this rea-
son, judges should indeed avoid rendering themselves unfit to try large numbers of cases.
49There need be no bias in fact; apparent bias is enough. In the familiar words of Lord Hewart
C.J., “justice should not only be done, but should manifestly and undoubtedly be seen to be
done.” The King v. Sussex Justices [1924] 1 K.B. 256, 259, [1923] All E.R. 233, 234. But the
litigants’ subjective views as to what constitutes bias, or reasonable grounds for inferring bias,
are irrelevant. In considering apparent bias, one is not concerned with what some litigants
might believe to have compromised the judge’s impartiality, but with conduct which would
indicate that there was a real likelihood of bias in fact existing: The Queen v. Rand (1866)
L.R. I Q.B. 230, per Blackburn J. For this reason, if voicing political beliefs shows apparent
bias, holding such beliefs must be equally prejudicial. Therefore, Ouellette must be wrong when
he says that public political statements give rise to apparent bias, yet “la manifestation rigo-
ureusement priv~e d’une opinion politique ne saurait 8tre considfrfe comme un manquement
au devoir d’impartialit6 judiciaire.” Ouellette, supra, note 32, 169.
McGILL LAW JOURNAL
[Vol. 29
apply when the judge holds an opinion on what constitutes good law, when
he approves or disapproves of a particular legal rule, when he adheres to a
given social philosophy (as long as this does not prejudice him against the
persons involved in the case, for example, if he believes that members of
a certain racial group are inveterate liars), or when he suggests that certain
principles should be upheld in public policy. Bias concerns the persons
involved in a dispute, or the application of law to the particular facts in
question; it does not concern judges’ views on the merits of legal rules,
principles, or arguments.
1. The Definition of “Impartiality” in the Case Law
This distinction is evident from the case law on bias. 50 It was clearly
expressed by Field J. in the case of R. v. Mayor and Justices of Deal. 5′ An
officer of the Royal Society for the Prevention of Cruelty to Animals had
prosecuted the applicant for cruelty to a horse. Some of the justices who
took part in the conviction were subscribers to a branch of the Society,
although they had nothing to do with the prosecution. On an application
for certiorari, Field J. held:
The interest or bias which disqualified must be real and substantial, and such
as was likely to influence the mind – not a mere interest in humanity or the
welfare of society, or an interest in the protection of animals from cruelty; such
an interest would no more disqualify a magistrate than an interest in the suppression
of vice. The interest or bias which disqualified must be an interest or bias in
the matter to be litigated –
that is, in this case, whether the person prosecuted
had been guilty of cruelty to an animal. A mere general interest in the general
object to be pursued would not disqualify a magistrate. All magistrates and all
judges have general sympathies and feelings of this kind –
feelings in favour
of the protection of the innocent or the helpless, feelings in favour of the
punishment of crime; but these general feelings or sympathies do not disqualify
them from sitting in criminal cases. The interest or bias which disqualifies is
an interest or bias in the particular case –
something reasonably likely to bias
or influence their minds in the particular case. 52
A similar issue was raised in R. v. Alcock.53 A commoner of Epping Forest
destroyed some signs in order to protest the City of London’s management
of the forest, and was consequently prosecuted. He alleged that one of the
two justices who convicted him was biased, on the grounds that in a parallel
501 shall leave aside the voluminous case law on licensing justices (although it supports the
analysis I am proposing here); the licensing function being administrative in nature, the same
considerations may not apply. See The King (John Findlater) v. The Recorder and Justices of
the County of Dublin [1904] 2 I.R. 75 (K.B.Div.).
51(1881) 45 L.T 439 (Q.B.Div.).
32Ibid., 441; see also the remarks of Cave J., 441.
53(1878) 37 L.T. 829 (Q.B.Div.).
1984]
THE BERGER AFFAIR
civil action, that justice had sworn an affidavit stating that the City’s man-
agement rendered the forest better for both commoners and public. In the
Queen’s Bench Division, Cockburn C.J. declared: “It is preposterous to
suppose that any one in the position of a magistrate would be biassed in
his administration of justice by the mere expression of his views as to what
is for the advantage of a defendant’s interests…. There is no authority for
saying that an expressed opinion is sufficient to oust a magistrate’s juris-
diction. ’54 Mellor J. added: “I know of no reason for saying that the expres-
sion of a man’s opinion on any subject should render him unfit to adjudicate
upon it.”’55 A comparable question was raised before the Supreme Court of
Canada in the case of Morgentaler v. The Queen. Me. C.-A. Sheppard,
representing a doctor charged with performing an illegal abortion, requested
that Mr Justice de Grandpr6, puisne justice of the Supreme Court, disqualify
himself because of the apparent bias allegedly resulting from his support
for the anti-abortion movement prior to his elevation to the bench. The
Supreme Court unanimously denied the request (Mr Justice de Grandpr6
did not participate in the decision on the preliminary objection). 56 Indeed,
541bid., 830.
55Ibid., 831.
56For the text of this unreported decision, see Appendix A of this article.
Another English case supporting the proposition that a mere expression of opinion does not
disqualify is R. v. Pettitmangin (1864) 9 L.T. 683 (Q.B.) (conviction of publican for suffering
prostitutes to assemble on his premises; information laid by police inspector after watch com-
mittee passes resolution instructing police “to see that the public-houses in the borough are
properly kept”; one of the convicting magistrates was on watch committee and promoted the
resolution: magistrate not disqualified).
For Canadian cases to the same effect, see The King v. Charest (1906) 37 N.B.R. 492, 496
(S.C.) per McLeod J. (liquor conviction; magistrate disqualified because informant in previous
prosecution of accused, but obiter dicta to the effect that the magistrate is not disqualified by
circulating a petition opposing the granting of liquor licences); The King v. Davis (1907) 38
N.B.R. 335 (S.C.) (liquor conviction; magistrate’s signing of a petition against granting licence
to accused does not disqualify); Re Doherty and Stewart (1946) 86 C.C.C. 253, [1946] O.W..N.
752 (H.C.) (illegal picketing; comments by magistrate regarding picketing, made in a previous
case, do not disqualify); and the cases cited infra, note 57. Some decisions that concern ad-
ministrative tribunals exercising judicial functions would also appear to be relevant here. These
hold that members of such tribunals may, without undermining their impartiality, declare in
advance policies which they intend to follow in deciding cases (as long as they hear and consider
alternative submissions): Re Hopedale Developments Ltd. and Town of Oakville [1965] 1 O.R.
259, (1964) 47 D.L.R. (2d) 482 (C.A.); Re Armstrong and Canadian Nickel Co. [1970] 1 O.R.
708, (1969) 9 D.L.R. (3d) 330 (C.A.); and R. v. Pickersgill (1970) 14 D.L.R. (3d) 717 (Man.
Q.B.).
Re Regina v. Jackson (1959) 125 C.C.C. 354, (1959) 29 W.W.R. 579 (Sask. Q.B.) contains
dicta contrary to this trend. At 359, Hall C.J.Q.B. writes: “Every accused has an inherent and
constitutional right to a fair trial by an impartial court and that means a court without any
preconceived notions or ideas respecting the necessity of suppressing certain types of offences
as distinct from others.” With respect, I would submit that this dicta goes too far. To be impartial
a judge need not consider all crimes to be of equal gravity. Indeed, in his decision, Hall C.J.Q.B.
392
REVUE DE DROIT DE McGILL
[Vol. 29
the case law indicates that some further element must be present before
disqualification occurs: the judge must have a pecuniary interest in the
outcome of the case; the judge in a criminal trial must be associated with
the particular prosecution; 57 there must be a special link or antagonism
between the judge and one of the parties; 58 the judge must be tied to a party
crucially affected by the events in issue (for example, to the victim of a
criminal offence); 59 there must be some indication that the judge will decide
not according to the law and facts presented, but solely on the basis of
places great weight on the “tensions” and “manifest antagonisms” existing between the mag-
istrate and the accused’s lawyer, showing bias towards the person. Perhaps the fact that the
magistrate’s remarks were made in court during the accused’s bail hearing also indicated that
the magistrate’s concern with a communal goal (the suppression of security sales fraud) might
dominate his decision.
Compare the U.S. position as stated in New Hampshire Milk Dealers’ Ass’n v. New Hamp-
shire Milk Control Bd 222 A. 2d 194, 198 (N.H. Sup. Ct. 1966):
It is a well-established legal principle that a distinction must be made between a
preconceived point of view about certain principles of law or a predisposed view
about the public or economic policies which should be controlling and a prejudg-
ment concerning issues of fact in a particular case. 2 Davis, Administrative Law
Treatise, s. 12.01, p. 131. There is no doubt that the latter would constitute a cause
for disqualification. However “Bias in the sense of crystallized point of view about
issues of law or policy is almost universally deemed no ground for disqualification.”
Id. … If this were not the law, Justices Holmes and Brandeis would have been
disqualified as would be others from sitting on cases involving issue of law or policy
on which they had previously manifested strong diverging views from the holdings
of a majority of the members of their respective courts. 2 Davis, Administrative
Law Treatise, s. 12.01, p. 132. Decisions of judges on certain questions of law and
policy may reflect the economic and social philosophy of the times. …. This detracts
in no way from the requirement that a judge or board member must not have a
bias or prejudgment concerning issues of fact in a particular controversy.
57Leeson v. General Council of Medical Education and Registration (1889) 43 Ch.D. 366,
[1886-90] All E.R. Rep. 78 (C.A.); Allinson v. General Council of Medical Education and
Registration [1894] 1 Q.B. 750, [1891-4] All E.R. Rep. 768 (C.A.); The Queen v. Allan (1864)
4 B & S 916, (1864) 122 E.R. 702 (K.B.); R. v. Milledge (1879) 4 Q.B.D. 332, [1874-80] All
E.R. Rep. 745; R. v. Sproule (1887) 14 O.R. 375 (Common Pleas); R. v. Brown (1888) 16 O.R.
41 (Q.B.); R. v. Klemp (1885) 10 O.R. 143 (Q.B.); R. v. Simmons (1872) 14 N.B.R. 158 (S.C.);
R. v. Herrell (1898) 12 Man. R. 198 (Q.B.); Daigneault v. Emerson (1898) 20 C.S. 310; Beauch-
ene v. Gunson (No. 2) [1928] 2 W.W.R. 703, sub nom ex parte Beauchene [1928] 4 D.L.R. 944
(Sask. KIB. in chambers); R. v. Suck Sin (1911) 20 Man. R. 720, 18 W.L.R. 141 (Q.B.); Nichols
v. Graham [1937] 2 W.W.R. 464, [1937] 3 D.L.R. 795 (Man. K.B.); Ex parte Michaud (1896)
34 N.B.R. 123, 32 C.L.J. 779 (S.C.).
58Hannamn v. Bradford City Council [1970] 2 All E.R. 690, [1970] 1 W.L.R. 937 (C.A.);
Charest, supra, note 56; Jackson, supra, note 56; Ladies of the Sacred Heart v. Armstrong’s
Point (1961) 29 D.L.R. (2d) 373, (1961) 36 W.W.R. 364 (Man. C.A.). This would appear to be
the reason why covert immoral behaviour by judges is thought to undermine impartiality. See
Robins, Report of the Commission of Inquiry into the Conduct of Provincial Judge Harry J.
Williams (1978) 12 L.S.U.C. Gaz. 161, 168; Rand, supra, note 25, 92-3.
59R. v. Altrincham Justices [1975] 2 All E.R. 78, [1975] 2 W.L.R. 450 (QBD Divi Ct); The
Queen v. Meyer (1875) 1 Q.B.D. 173 (Q.B. Div.).
19841
THE BERGER AFFAIR
personal predilection;60 or there must be prejudgment with respect to the
application of law to facts in the very case before him (and even here,
forming a preliminary opinion may be acceptable). 6′
2.
Impartiality with Respect to Law, and Judicial Practice
The proposition that judges need not be “impartial” with respect to
the law or policy involved in a case is also in accordance with the working
assumptions of judicial decision-making. First, judges are expected to have,
and use, preconceived ideas of what the law is. Appointment to the bench
occurs only after a period of legal practice or teaching. During this period,
judges acquire preferences for some legal doctrines, rejecting competing
ones. These preferences undoubtedly influence their later decisions. This
process is not frowned upon; on the contrary, the judges we consider to be
most competent are those who have a good grasp of legal principles. More-
over, the very structure of our adversarial system requires that judges possess
such prior knowledge. In the course of a hearing, a judge is presented with
at least two rival interpretations of the parties’ legal relations. In order to
choose between them, he must have some way of evaluating the cogency
of each argument. This determination can only take place through the ap-
plication of standards possessed by the judge when he enters the courtroom. 62
Nor are judges’ permissible opinions limited to their definition of the
positive law; they may also distinguish between good and bad law without
disqualifying themselves from adjudicating in a case where the disputed
rules are in question. This is particularly evident with respect to judge-made
law. If common-law judges were expected to repress all opinion on the
desirability of positive rules, one would be locked within a system of absolute
stare decisis, previously-established rules being inexorably applied. Yet judges
60 I have dealt more fully with this above at pages 383-6. For an example in the case law,
see The King v. Rand (1913) 47 N.S.R. 556, (1913) 13 E.L.R. 450 (S.C.).
61The Queen v. Spedding (1885) 2 T.L.R. 163 (Q.B.Div.); The Queen v. Gaisford [1892] 1
Q.B. 381; Committee for Justice and Liberty v. Nat. Energy Board [ 1978] 1 S.C.R. 369, (1976)
68 D.L.R. (3d) 716. For the permissibility of forming a preliminary opinion, see Re Gooliah
(1967) 63 D.L.R. (2d) 224, (1967) 59 W.W.R. 705 (Man. C.A.).
62 0f course, this does not mean that the judge should keep his views on the appropriate law
to himself; he must give the parties a chance to argue before him all relevant issues.
The argument in the text assumes that rules are part of the law. If judicial decision were
merely a matter of balancing the interests of the parties, one could perhaps claim that judges
can be absolutely neutral, simply attempting to find an accommodation between those interests.
Even with such a perspective, however, surely the judge’s own opinions must enter into the
determination of the weight to be attached to each interest.
McGILL LAW JOURNAL
[Vol. 29
in England and Canada have decided that such rules may be critically re-
considered, 63 and this is not thought to demonstrate a lack of impartiality.
Chief Justice Laskin declared:
My own view of the public expectation of the judicial role is in its creative
possibilities, in the capacity, the ability of the Courts to keep the law in motion,
to nudge it along through review and reassessment to make and keep it con-
temporary. … I can safely say that Judges do not regard their function as
requiring them to be indifferent to the quality of the law. Courts in Canada
have given evidence by their decisions that principles stated by predecessor
Judges have no eternal verity. 64
That judges do not show bias when they declare a preference for a legal
doctrine other than that prevailing is most evident when judges who have
delivered dissenting judgments in previous cases are later called upon to
decide a similar question. Even though they have shown themselves opposed
to what appears to have become the positive law, they are not disqualified
from judging. Often they maintain their original views in the later decision
without exposing themselves to accusations of bias. 65 Similarly, with respect
to statutes, judicious criticism is permitted, although judges are not to over-
rule validly-enacted laws. 66
3.
Impartiality with Respect to Law, and the Nature of Adjudication
It is not only customary that judges have opinions on matters of law
and policy, it is also necessary. Adjudication is more than the technical
application of previously-established, clearly-defined rules to a particular
case. Rules must continually be refined and adjusted to meet unforeseen
circumstances. Occasionally, it is not so much a matter of refining old rules
as creating new ones to fill gaps in the law. In addition, conflicts between
rules must be resolved, and there are often no clear super-rules by which
to perform this process. Sometimes, old rules are rejected when they are
judged to no longer reflect the prevailing attitudes of society. In short, there
is a good measure of what might be called “judicial legislation” –
decisions
which must be based on considerations not previously embodied in a rule.
This is not to say that judges have unbounded discretion when performing
this legislative role, although there is not yet agreement on what the precise
63Practice Statement [1966] 3 All E.R. 77, [1966] 1 W.L.R. 1234 (H.L.); Paquette v. The
Queen [1977] 2 S.C.R. 189, 197, (1977) 70 D.L.R. (3d) 129, 135.
64Laskin, A Judge and his Constituencies (1976) 7 Man. L.J. 1, 14.
65See, e.g., the following line of cases: Murdoch v. Murdoch (1973) 41 D.L.R. (3d) 367, [1974]
1 W.W.R. 361 (S.C.C.); Rathivell v. Rathwvell [1978] 2 S.C.R. 436, (1978) 83 D.L.R. (3d) 289;
and Pettkus v. Becker [1980] 2 S.C.R. 834, (1980) 117 D.L.R. (3d) 257.
66For an argument in favour of this practice see Davies, supra, note 39, 216-7, where he
gives the example of Cartledge v. Jopling [1963] A.C. 758, [1963] 1 All E.R. 341 (H.L.). See
also Laskin, supra, note 64, 10 and the authorities mentioned supra, note 42.
1984]
THE BERGER AFFAIR
bounds are.67 It does mean that judges must use criteria other than au-
thoritatively-pronounced rules in order to perform their task. These criteria
must necessarily be determined according to the judge’s own evaluation of
the relevant principles. 68
Does this mean that there is, in all judicial decision-making, an inbuilt
bias undercutting the justice of the results achieved? No. There is a quali-
tative difference between this necessary partiality with respect to principle,
and potentially harmful bias with respect to the parties involved or the
application of law to the facts in issue.
Impartiality with respect to the parties is demanded because of our legal
system’s basic adherence to the moral equality of persons. Presumptively,
every person is entitled to equal consideration. When distinctions based on
personal characteristics are relied upon, they must be expressly stated and
justified. This requirement is designed to ensure that such distinctions are
not the result of the whim of a single judge: when stated, the decision may
be reviewed on appeal. Bias towards persons is reproved because it may
result in illegitimate, hidden distinctions.
67For a recent Canadian attempt to define these bounds see Weiler, Legal Values and Judicial
Decision-making (1970) 48 Can. Bar Rev. 1.
6SSee Dion, supra, note 41, 788:
La reserve des juges pose enfin la question de savoir si les juges, sous forme d’un
obiter dictum ou autrement, peuvent 16gitimement s’inspirer de conceptions phi-
losophiques personnelles pour rendre jugement. Dans un monde ofi meme dans les
meilleurs des cas ceux qui font et appliquent les lois ne peuvent que tendre vers la
justice sans jamais etre assures de l’atteindre complrtement, il ne sirait gure aux
juges de se r~fugier derriere un 6cran de neutralit et de prrtendre que leur rrle, en
rendant jugement, se borne A <(dire > ou A
See also his comments at 778-9 and those of Chief Justice Jules Deschenes (as he then was)
in his work, Les plateaux de la balance (1979) 92. And see excerpts in Dion, supra, note 29,
216-7 from Drprez, A propos du rapport annuel de la Cour de cassation “sois juge et tais-toi”
(Rfflexions sur le rrle du juge dans la cit) [1978] Rev. trim. dr. civ. 503, 517-32. Compare
also the views of Mr Justice I.C. Rand in his article The Role of an Independent Judiciary in
Preserving Freedom (1951) 9 U.T.L.J. 1, 12-13. In an eloquent statement of his own social
philosophy, he discusses what theories are admissible in judicial deliberation, basing his de-
termination on a notion of natural law: “what, considering all factors and interests, the mass
of free and rational men applying the rule of universality will ultimately accept or demand….
Lederman, in “The Independence of the Judiciary” in A. Linden, ed., The Canadian Judiciary
(1976) 1, 11, argues that precisely because there are difficulties of interpretation, it is necessary
to have an unbiased adjudicator so that a non-partisan reading may prevail. It is unclear whether
Lederman means that a judge can be neutral even with respect to legal principles or social
philosophy. It is also significant that biographies often dwell on the philosophies that motivated
judges’ decisions. See, e.g., Pollock, Mr. Justice Rand[:] A Triumph of Principle (1975) 53 Can.
Bar Rev. 519, 527 et seq.; Castel, Le Juge Mignault[:] d~fenseur de lintegritW du droit civil
qu~bicois (1975) 53 Can. Bar Rev. 544.
REVUE DE DROIT DE McGILL
[Vol. 29
Prejudgment of the particular issue in question (i.e. a pre-determined
application of law to the facts of the case at bar) is condemned because of
the great difficulty in determining the precise facts of a dispute. The proper
application of law to facts of course depends upon the reliable ascertainment
of those facts. In order to promote reliability, complex rules of evidence
and procedure have been developed for use in court. But judicial prejudg-
ment is not subject to such controls, and for this reason, prejudgment is
condemned. Now, with respect to the prohibition of judges to sit in appeal
of their own decisions, these considerations may not apply: the initial de-
termination may well have been made subject to the proper controls. In
such a case, disqualification depends upon thelprinciple that appeals are
intended to be a test of the original decision, including the trial judge’s
determination of the law. Such testing is obviously impaired if the original
judge rules on his own decision.
The same considerations do not, however, govern the preference of a
judge for a legal principle or social philosophy. As noted above, the judge’s
function is not merely the technical application of defined rules; in large
measure, his function is to declare the law. One therefore need not worry,
as one must regarding the facts of the case, whether the judge has precon-
ceived notions of what the law is or should be, as long as the parties are
given the opportunity to rebut these notions. As Frankfurter J. stated in a
case concerning a judicial decision made by the U.S. Secretary of Agriculture,
Cabinet officers charged by Congress with adjudicatory functions are not as-
sumed to be flabby creatures any more than judges are. Both may have an
underlying philosophy in approaching a specific case. But both are assumed
to be men of conscience and intellectual discipline, capable of judging a par-
ticular controversy fairly on the basis of its own circumstances. 69
69U.S. v. Morgan 313 U.S. 409 (1941), 421. This passage, and the quotation from New
Hampshire Milk D. Ass’n, supra, note 56, were quoted with approval in Mr Justice de Grandpre’s
dissenting judgment in Committee for Justice and Liberty, supra, note 61, 398 and 399-400.
The majority opinion in that case did not disapprove of the American authorities. It was based
on the fact that the officer in question “had a hand in developing and approving important
underpinnings of the very application which eventually was brought before the panel”, i.e.,
that there was a distinct likelihood that the officer had prejudged the particular issue (388-91).
Note that Mr Justice Frankfurter emphasizes that the judge must still fully consider the
representations made in the hearing of the case. This, I believe, is what Mr Justice Dickson
(as he then was) is referring to when he writes:
When I speak of impartiality, I am not referring to such obvious things as sitting
on a case in which one has a personal interest, but to the more subtle influences
of personal prejudices. Judges are human …. They may hold strong views on many
issues; yet when presiding at a trial, those views must be cast aside. The judge must
show, to the extent of his ability, open-mindedness, courtesy and patience. Supra,
note 25, 143.
Mr Justice Dickson is not saying that judges must discard all views as to what the law is or
should be, for he later states: “With respect to the law,… an appellate court judge will place
1984]
THE BERGER AFFAIR
The judge is, to a degree, the author of the rules he applies. Therefore,
preference for law is not analogous to prejudgment of facts, where the dif-
ficulty of ascertaining an objective truth forces one to impose strict controls
on procedure and the admission of evidence. Nor is it analogous to bias
towards persons, for there is no fundamental principle in the law that all
arguments, all moral principles, or even all legal rules have equal validity
and weight. The judge’s function is precisely to make distinctions between
rules.
What consequences does this analysis have for establishing the proper
limits to extra-judicial comment? Clearly, the duty of impartiality imposes
less restraint on judges’ comments than is commonly supposed. Pronounce-
ments of legal opinion, principle, or social philosophy do not undermine
impartiality. Only when the comments suggest prejudice towards the parties
in a case or the particular facts in issue will this occur. It is very common
to see in speeches by judges declarations of principle such as the following
by the late Mr Justice Rand of the Supreme Court of Canada:
the courts in the ascertainment of truth and the application of laws are the
special guardians of the freedoms of unpopular causes, of minority groups and
interests, of the individual against the mass, of the weak against the powerful,
of the unique, of the nonconformist –
our liberties are largely the accom-
plishments of such men. 70
Surely, such a statement cannot render a judge unfit to hear cases involving
popular causes, the powerful, and the conformist.
C. Undermining the Moral Integrity of the Bench
This heading is included here primarily for the sake of completeness.
While it does set limits to judges’ extra-judicial speech, these limits are
minimal. Up until now, it has been invoked only in cases where a judge’s
far less reliance on counsel”. Supra, note 25, 160. Mr Justice Rand, while stressing that theory
must enter judicial deliberations, supra, note 68, 12, also speaks of the-need for a “relentless
self-scrutiny”:
It is not a question of honesty in intellect or morality; it is of the quality ofjudicial
disinterestedness. One’s individual views undoubtedly reflect the general thought
of the community; but they can present obstacles to the true understanding of what
is being examined….
To be aware of the mental domination of these and like ideas, to appreciate their
possible irrelevance and danger, and to achieve a power of neutralizing them through
a mobility of mind in orienting itself to any group of assumptions, is the condition
of subjective independence. Ibid., 7.
70Rand, supra, note 68, 13.
McGILL LAW JOURNAL
[Vol. 29
conduct has clearly violated commonly accepted moral or criminal stan-
dards (for example, consorting with prostitutes, accepting bribes when per-
forming public duties 71).
Shetreet argues that this restriction is based on the necessity of main-
taining public confidence in the judiciary.72 For litigants to accept the le-
gitimacy of adjudication, especially in criminal matters, they must not suspect
the judge of hypocrisy. Judges must therefore maintain in their personal
lives the moral standards which they impose on those who appear before
them. In addition, many judicial decisions are not governed by clear rules,
and in such cases (for example, determining whether a given publication is
obscene, or even whether a conflict of duty and interest exists) the moral
standards of the judge will greatly affect the outcome. The public must be
able to trust that the judge’s moral standards do not depart radically from
society’s norm. Indeed, many commentators have asserted that a judge
serves in his private life “as an exemplar of justice”. 73
The question of a judge undermining the moral integrity of the bench
usually arises from a judge’s actions rather than his words. However, one
can imagine cases in which a judge’s extra-judicial statements are so contrary
to generally accepted moral standards that his continuation in office would
bring the administration ofjustice into disrepute. In the case of actions, the
consensus appears to be that the impugned conduct must carry real moral
blame; the conviction for an ordinary traffic offense or an act resulting from
a bad error in judgment will not require the resignation of the judge. 74 This
determination has necessarily been a matter of degree. In establishing limits
to permissible extra-judicial comment, the boundaries must be similarly
vague. Certainly, judges must not counsel the breaking of the law. They
should also avoid making statements which would offend against generally
accepted moral principles.
D. Abuse of Judicial Office to Make Personal Statements
The Committee invokes this consideration at several points in the Re-
port.75 Although the Committee itself does not elaborate, the following ar-
gument would appear to be an appropriate basis for this limitation: the
71See respectively Robins, supra, note 58 and Rand, supra, note 25.
72Supra, note 29, 281-4.
73Robins, supra, note 58, 173. See also his comments at 172-4; Rand, supra, note 25, 94-8;
and Grant, Guide of Ethics of Magistrates (1968) 2 L.S.U.C. Gaz. (Dec.) 8.
74Shetreet, supra, note 29, 280-1.
‘5Supra, note 1, 390-2. See also the complaint of Mr Justice Addy at 395. For an example
of this argument prior to the “Berger Affair”, see Bouthillier, Matriaux pour une analyse
politique des juges de la Cour d’appel (1971) 6 R.J.T. 563, 565: “Publiques ou pas, ces prises
de positions s’appuient implicitement sur le prestige qui s’attache au juge en qualit6 d’expert
en mati~re 16gislative.”
19841
THE BERGER AFFAIR
authority of judicial office is given to the judge for a limited purpose –
the
decision of cases according to law; great restrictions have been placed on
the exercise of this authority in order to promote rational deliberation (for
example, rules of evidence, rules specifying appropriate sources of law, mea-
sures promoting equality of presentation by the parties); using the office as
a platform from which to comment on controversial matters of which one
is not seized, under conditions lacking the controls inherent in the adju-
dicative process, amounts to a misuse of authority for personal ends. In
this section, I will briefly discuss the force of this argument.
First, it must be noted that this objection cannot prevail when judges
have, because of their judicial office, a positive right to comment extra-
judicially (for example, at a time of constitutional revision, or when the
administration of justice is in question). They cannot be abusing their au-
thority when the very nature of their office justifies the conduct.
Second, any possible misuse of authority can only be partial. The au-
thority of a judge speaking extra-judicially is significantly less than that of
a judge on the bench. The latter’s pronouncements are phrased, not as mere
opinions, but as declarations of law, and indeed they have effect as law:
judgments may be enforced, and may be cited as precedents in future cases.
The physical accoutrements of judicial decision-making –
the robes, the
raised dais at the front of the courtroom, the ceremony –
are all intended
to buttress the judge’s authority. A judge speaking extra-judicially, on the
other hand, does not have the advantage of these institutional supports. He
does, however, benefit from the substantial confidence and respect which
society accords its judges.
Now, surely not every extra-judicial comment (other than those con-
cerning the constitution or the administration of justice) will be considered
a misuse of authority for private purposes. If they were, judges would be
unable to accept invitations to address university audiences, professional
associations, and service clubs –
activities which few would wish to stop.
In order for comments to constitute a misuse of authority, the office must
be harmed in some way. 7 6 The harm usually foreseen (other than injury to
the independence or impartiality of the judiciary) is that controversial com-
ments may provoke criticism, thereby lowering the dignity and hence the
76The Committee implicitly accepts this argument in its response (supra, note 1, 390) to Mr
Justice Berger’s mention of some controversial statements made by the Hon. Mr Martland
after the latter had retired from the bench:
In our view, Justice Berger completely misses the mark when he says “does it make
all the difference that nothing was said until he (Mr. Martland) retired?” It makes
the greatest of difference. Politically controversial statements by a citizen who is no
longer a judge and who can never again be called on to be a judge, do not destroy
the necessary public confidence in the impartiality of judges.
REVUE DE DROIT DE McGILL
[Vol. 29
authority of the bench. When the criticism takes the form of bickering
between judges, the injury is seen as being all the more serious.7 7
This argument does have some force. Judges might therefore wish to
avoid causing controversy unnecessarily. This reluctance should not, how-
ever, stifle all comment that may evoke opposition; there are often strong
compensatory benefits from judicial participation in a limited amount of
public debate – benefits which outweigh the possible harm. Criticism itself
is not always a negative force. As discussed above, when the applicability
of rules is unclear, the general opinions of judges on law and policy must
influence their decisions. It may be better to have these attitudes subjected
to public scrutiny than to have untested, tacit assumptions govern the de-
cision-making process. Several commentators have recently emphasized the
value of public criticism as a means of keeping judges responsive to societal
attitudes. 78 Moreover, there may well be cases when silent compliance will
injure the integrity of the judiciary more than speaking out. Dion gives the
example of judges asked to enforce repressive laws in Nazi Germany. Mr
Justice Berger picks an instance closer to home: “if a member of this court
had spoken out against the internment of the Japanese Canadians in 1942,
or against their deportation in 1946, would that have been regarded as
misconduct?” There is merit in Dion’s perceptive comment:
dans une soci6t6 pluraliste et divisre comme
‘est la socit6 contemporaine,
quoi qu’il fasse, qu’il s’abstienne ou qu’il s’engage, le juge, comme le pretre,
risque d’8tre objet de scandale: les uns s’indignent de ses abstentions et les
autres de ses engagements. 79
Finally, judges have usually had long and distinguished careers prior to their
appointment to the bench. As judges, they may serve as Royal Commis-
sioners studying important public issues. While on the bench, their unique
view of the working of the law undoubtedly gives them insights valuable
to society at large. It would be unfortunate if the experience and insight
thus gained must remain closed offfrom society, solely because of the judges’
desire to avoid controversy.
In short, judges cannot be said to be misusing their authority whenever
they comment publicly, even on controversial questions. While discretion
is advisable, there are often benefits to society of having judges speak out.
77See Shetreet, supra, note 29, 277; Dickson, supra, note 25, 162; Report and Resolution,
supra, note 1, 388, 392; and, with respect to the participation ofjudges on Royal Commissions,
Dion, supra, note 41, 783. For concern with judges expressing divergent views, see Report and
Resolution, supra, note 1, 391.
78Martin, Criticising the Judges (1982) 28 McGill L.J. 1; Dion, supra, note 29, 209 and 214-
5; Shetreet, supra, note 29, 324.
79Dion, supra, note 29, 209 and 220-1; Berger, supra, note 1, 418.
1984]
THE BERGER AFFAIR
HI. The Guidelines and Their Application
A. Applying the Tests to Mr Justice Berger’s Remarks
The above discussion has identified the tests to be applied in assessing
the propriety of extra-judicial comments: 1) the maintenance of the inde-
pendence of the judiciary requires that judges avoid becoming committed
partisans in political debate (although they may more strongly advocate a
defined outcome when constitutional questions or matters affecting the
administration of justice are at stake); 2) the preservation of judicial im-
partiality demands that judges refrain from showing prejudice against par-
ticular persons, and from prejudging the application of law to facts in a
case; 3) judges should not counsel the breaking of the law, nor make com-
ments offending against generally accepted moral principles; and 4) judges
should avoid causing controversy gratuitously. According to these criteria,
were Mr Justice Berger’s remarks improper?
Neither his personal independence nor the independence of the judi-
ciary as a whole were imperilled by his comments. Mr Justice Berger did
argue strongly for a particular policy outcome (although he did not identify
himself with any faction). However, his statements clearly concerned issues
of broad constitutional principle, on which members of the judiciary have
a right to comment. In spite of this, his remarks provoked considerable
criticism, much of it using language drawn from separation of powers doc-
trine. Perhaps the reason for this is rooted in the peculiar circumstances of
our period of constitutional renewal. Many Canadians evidently looked
upon the patriation and amendment of our constitution as simply one more
project of the legislature and executive, not as a revision of the state’s fun-
damental institutional framework.
Mr Justice Berger’s comments did not threaten his impartiality. In
advocating that native rights be included in the accord and that Quebec
retain a veto over constitutional change, he was speaking to matters of
principle or policy. He did not indicate a preference for certain individuals
over others, nor show prejudgment of a particular legal claim. To assert that
preferring one constitutional provision over another undermines a judge’s
ability to impartially adjudicate is to misunderstand the nature of bias.80
8OInterestingly, in 1965 Mr Justice Emmett Hall, while on the Supreme Court of Canada
and eight years before his landmark judgment in Calderv. A.-G. B.C. [1973] S.C.R. 313, (1973)
34 D.L.R. 145, said in a lecture, “we as a nation, have failed our Indians and Metis” (quoted
in Vaughan, Emmett M. Hall: a Profile of the Judicial Temperament (1977) 15 Osgoode Hall
L.J. 306, 321). Surely no one would suggest that that statement, similar in content to those of
Mr Justice Berger, undermined Mr Justice Hall’s impartiality.
McGILL LAW JOURNAL
[Vol. 29
Clearly Mr Justice Berger’s statements did not undermine the moral
integrity of the bench. Such a possibility was never seriously asserted.
Did Mr Justice Berger improperly use his office as a political platform?
Again, the fact that he was speaking on a constitutional issue is conclusive.
One might still ask, however, whether his comments, even if permissible,
tended to undermine the authority of the judiciary. His remarks certainly
embarrassed the federal government before the Canadian people, and drew
criticism, not least from that government and from fellow judges. But there
was also considerable support for his actions. Readers must determine for
themselves on which side the balance falls.
Applying the above tests, then, it is clear that Mr Justice Berger’s com-
ments were not improper. With all due respect for the Committee’s Report,
I submit that Mr Justice Berger should not have been censured.
B. Conclusion
This paper has proceeded on the assumption that the mechanism used
to enforce judicial propriety is irrelevant to determining what judges should
and should not say. This is not necessarily the case, however. Many of the
tests enunciated above involve a judgment between competing policies: do
the benefits of hearing what judges have to say outweigh the possible damage
caused to their authority by public criticism; is a controversial comment
one of principle, or is it partisan in nature? The answer to such questions
may, in large measure, depend on who is charged with the determination.
Furthermore, if the damage which may result from transgressing the bounds
of permissible conduct is great, one may wish to constrain more strictly that
conduct in order to avoid tragic errors. As noted at the beginning of this
paper, this is not the place to discuss these issues fully, but I would like to
offer a few observations. In general, the judgment of what constitutes per-
missible conduct should, I submit, be left to the individual judge concerned.
Only when there is, prima facie, a clear case that the guidelines have been
violated should disciplinary authorities intervene. The nature of the judicial
function is such that any reprimand by a body such as the Canadian Judicial
Council is likely to gravely undermine the authority of the judge. One need
not fear that judges will be unaccountable for their actions. Informal mech-
anisms, including public criticism itself, are likely to continue to restrain
judges’ extra-judicial conduct. Moreover, such informal mechanisms are
better able to encourage more subtle, but not less important virtues, which
cannot be reduced to rules (for example, the maintenance of courteous
relations between the branches of the state). Judges are, of course, carefully
chosen for their roles; they are, for the most part, capable of policing them-
selves. If they do err on occasion, public support for our judicial institutions
is robust enough to survive the indiscretion.
1984]
THE BERGER AFFAIR
Throughout this paper, I have attempted to derive guidelines from the
requirements of the proper exercise of the judicial function. There is an
argument, however, that the effectiveness of adjudication depends in large
measure on the public misapprehending the nature of the judicial function.
Lon Fuller, for example, has described the particular value of judge-made
law in the following terms:
In putting their stuff over, judges enjoy various advantages over legislators.
They work in an atmosphere of ritualistic impartiality. They avoid a too active
and direct intervention in men’s affairs. They assume, as far as they can, the
position of umpires over a dispute. … The common-law courts always refused
to assume a too conspicuously active role. … When they overruled previous
decisions, they did it not as legislators, but on the theory that the law had
always been what they now declared it to be. Some of these inhibitions on
judicial action are stupid, others are hypocritical. But underlying them there
is, I submit, a sound political instinct which realizes that there is a problem
of making government “go down well”. In Pareto’s terms, the judges have
realized that they have to govern as foxes and not as lions. s’
In order to preserve these advantages, might one have to maintain the
“atmosphere of ritualistic impartiality”? Should one then pretend that judges
truly are impartial with respect to law and social philosophy, even if this
is impossible? The answer depends on the depth of one’s commitment to
democratic principles, to the notion that the public has a right to know how
the institutions of the state operate. It also depends on one’s assessment of
the basis and fragility of the judiciary’s legitimacy. Such considerations are
particularly insusceptible to reasoned argument. I would only suggest that
in the past, the Canadian judiciary has perhaps relied too much on its
isolation from society to buttress its authority. More openness regarding the
judicial process may well result in solid, reasoned public support, and may
indeed serve to dispel harmful misconceptions about the judicial role.82
This paper’s attempt to define the limits of extra-judicial free speech
has required the close examination of concepts, such as the independence
and impartiality of judges, which are fundamental to our judicial institu-
tions. The solutions suggested are, I hope, rooted in the reality of judicial
decision-making, workable, and appropriate to Canadian society. I believe
they are also in accordance with the practice of Canadian judges, which has
generally been more liberal than the strict expressions of judicial restraint
81″Letter from Lon L. Fuller to Thomas Reed Powell”, in K. Winston, ed., The Principles
of Social Order (1981) 302.
82For an impassioned argument along these lines see Dion, supra, note 29, 203-5.
REVUE DE DROIT DE McGILL
[Vol. 29
would indicate.83 Finally, the guidelines presented here have the added ben-
efit of providing greater scope for judges to exercise their own personal
freedoms –
and this without endangering the institutions and values which
the judiciary maintains.
83Accord: Dion, supra, note 29, 200-1. Proof of this observation would require the presen-
tation of a tediously long catalogue of statements by judges. A few prominent examples will
have to suffice. An editorial in The [Toronto] Globe and Mail (22 June 1983) 6, gives the
following instances ofjudicial participation in controversial debates: in 1963, Mr Justice Thor-
son, President of the Exchequer Court of Canada, publicly criticized the Government of Canada’s
policy with respect to nuclear weapons; in 1971, Mr Justice Freedman of the Manitoba Court
of Appeal, speaking before the Empire Club of Canada, supported the 1970 imposition of the
War Measures Act; and in 1964, Mr Justice Hall of the Supreme Court of Canada publicly
defended the recommendations of the Royal Commission on Health Services, of which he had
been Chairman. In 1971, Chief Justice Dorion of the Quebec Superior Court spoke against the
Ministry of Education’s plan to deconfessionalize the University of Sherbrooke: Bouthillier,
supra, note 75, 565. In 1979, ChiefJustice of Ontario William Howland urged the establishment
of bilingual courts in that province: The [Montreal] Gazette (11 April 1979) 8. On 7 May 1976,
Chief Justice Jules Desch~nes of the Quebec Superior Court, lectured on the rights of the
unborn child (for the text of this speech, see Desch~nes, supra, note 68, 197-208). In 1983, Mr
Justice A.M. Monnin of the Manitoba Court of Appeal (now Chief Justice of Manitoba) signed
an anti-abortion petition published in a Winnipeg newspaper: The [Toronto] Globe and Mail
(13 May 1983) 1. For examples of statements on constitutional and native affairs, see supra,
notes 44 and 80.
Mr Justice Berger is not the only Canadian judge to have been censured for his extra-judicial
comments, however. In 1980, the Conseil de la magistrature of Quebec reprimanded Mr Justice
Marc Bri~re of the Quebec Provincial Court for publishing, during the referendum debate, two
articles on the nature of Canadian sovereignty and the right of a province to secede from
Confederation. Mr Justice Bri~re had himself referred the matter to the Conseil for consid-
eration. See SouverainetM et Droit de Scession des Enfants de L’Enpire, Le Devoir [Montreal]
(1 November 1979) 5 and Souverainet et Reserve Judiciaire, Le Devoir [Montreal] (19 No-
vember 1979) 5 for the offending articles. An account of the reprimand may be found in Le
Devoir [Montreal] (30 April 1980) 3, and an editorial in defence of Mr Justice Bri~re in Le
Devoir [Montreal] (1 May 1980) 12. Unfortunately, the report of the Conseil has not been
released to the public.
1984]
Appendix A
THE BERGER AFFAIR
The Supreme Court of Canada’s decision on the preliminary objection
in Morgentaler v. The Queen, supra, note 56, has not been reported. For
the reader’s convenience, it is here reproduced in full.
DR. HENRY MORGENTALER v. HER MAJESTY THE QUEEN
S.C.C., No. 13504, October 2, 1974.
Coram: – The Chief Justice, Martland, Judson, Ritchie, Spence, Pigeon,
Dickson, Beetz JJ.
THE CHIEF JUSTICE (Orally for the Court):-
We have listened to submissions by counsel for the appellant chal-
lenging the propriety of one of our members, Mr. Justice de Grandpr6, sitting
on this appeal. Counsel for the appellant says that he does not attack the
personal integrity of Mr. Justice de Grandpr6 or his objectivity, but he
suggests that in view of the wide ranging debate going on in Canada on
abortion Mr. Justice de Grandprr’s attitude to this appeal could be influ-
enced by reason of views expressed in a speech and comments made by
him during a joint meeting in April, 1973 of the Quebec Branch of the
Canadian Bar Association and of the Quebec Bar. Mr. Justice de Grandpr6
was then President of the Canadian Bar Association but he made it quite
clear that he was expressing personal views.
This Court is not concerned in this appeal with the public debate on
abortion. Its sole concern is with the exercise of its jurisdiction to hear this
appeal on questions of law. This is prescribed by s. 618(2) of the Criminal
Code under which the appeal has been brought.
Every judge of this Court has subscribed to an oath in the following
terms:
I …………
do solemnly and sincerely promise and swear that I will duly and
faithfully, and to the best of my skill and knowledge, execute the powers and trusts
reposed in me as Chief Justice (or as one of the judges) of the Supreme Court of
Canada. So help me God.
All members of this Court, past and present, have, to a greater or lesser
degree, before appointment to the Bench and to this Court, expressed views
406
McGILL LAW JOURNAL
[Vol. 29
on questions which have legal connotations, and this has never been a
disqualifying consideration.
We are all of the opinion that there is no impropriety in Mr. Justice de
Grandpr6 taking his seat as a member of this Court in this appeal.
