Why judges’ political activism also hurts lawyers

The Law Times reported that an Ontario Superior Court Justice is facing a complaint by an oil sands advocacy group to the Canadian Judicial Council for his role in a public mock trial of environmentalist David Suzuki at the Royal Ontario Museum this past November 6.  The basis for the complaint is that the judge’s participation in a political event compromised his judicial impartiality.  Another judge of the same court had originally agreed to participate, but later withdrew in the face of a similar objection.

Judges have long been criticized for “judicial activism,” especially since the advent of the Canadian Charter of Rights and Freedoms.  Whatever one’s view of this subject, it is important to differentiate the judge’s role in representing community values, when interpreting law, from use of the judicial office to support a personal view on a political issue.  Judicial power resides in the authority to state what the law is and the limits of how the law can be applied.  The easily-understood reason for discouraging judges from partisan politics is that interference with constitutionally valid legislative and executive power generates a perception of bias.  It is for this reason that courts, even when they strike down laws or set aside administrative actions as ultra viresdo not formulate amendments or suggest more appropriate courses of actions.  A Canadian judge taking the stage in a political event broadcasts a personal opinion outside the context of a properly constituted, pleaded and justiciable dispute.  A perception of bias, in turn, diminishes the rule-stating authority which allows the judiciary to function.

The following anecdote illustrates a message that is more difficult to explain: why judges’ self-restraint is also important to lawyers’ function as clients’ trusted advisers and representatives.

Several years ago, during a visit to the Yukon branch of the Canadian Bar Association, one of my hosts organized a breakfast meeting with university undergrads interested in pursuing careers in law.  One of them had just enrolled in Environmental Sciences at UBC.  She asked me what I knew about Environmental Law.  I asked her what she thought it entailed.  My recollection of her answer, and our ensuing discussion, leads into the effect of judges’ political activism on our job as lawyers:

Student:   It’s about going after polluters.  You know, enforcing laws against resource companies.

LA:   Do you consider yourself an environmentalist?

Student:   Yes.

LA:   Have you ever considered working for a resource company, or having them as clients?

Student:   No.

LA:   Most of the environmental lawyers I know work in-house at those companies or are consulted by them.  There are a few on the other side.  That doesn’t mean you shouldn’t consider being an environmental lawyer.  Lawyers on both sides have the job of ensuring their clients obey environmental laws and regulations.  In practice, the adversaries do get carried away, and accuse each other of redrawing the boundaries.  But both have a duty to advise their clients honestly.  If you as the company’s in-house counsel are made aware of an illegal practice during a project, you have to advise the manager of the project against it.  If the manager refuses to comply, the lawyer must take it progressively to higher levels in the corporate structure until the practice is stopped.  But if the activity is legal, you don’t have any authority to stop it, and neither does the lawyer for the environmental lobby.

The student understood the point I was making.  One has to keep an open mind about issues no matter what field of law one pursues.  The ethical duty that gives the lawyer working for a resource company power to stop pollution is not really different from that of the lawyer for the company’s adversary.  Both rely on the law of the land as the relevant standard of conduct.  They are standing on opposite sides of a boundary line, but it is the same boundary line.  The company lawyer’s duty to which I referred is described in rules 2.02(5.1) and (5.2) of the Ontario Rules of Professional Conduct, for which counterparts exist in bar ethics rules across Canada and other jurisdictions.  The lawyer’s power, on either side of the legal debate, is the deference to legal training and the professional credibility to say what the law is.  Lose the deference and credibility, and that power is diminished.

Imagine then what could happen if the lawyer had to tell the company that the impugned practice was illegal but certain judges were reluctant to enforce the penalty.  Or, in another scenario, that the practice did not breach the statute but certain other judges were reluctant to let resource companies off the hook because of a belief that all resource companies pollute.  The lawyer’s ability to perform the task of advising what the law is, becomes less and less aligned with the analogous judicial function.  You end up either with unchecked corporate wrongdoers or excessively cautious companies.

In civil litigation, there exists a perception among corporate clients that courts are biased against them, in litigation with individuals. When one quizzes the clients’ litigation managers about the basis for this belief, they usually recollect the outcomes of one or two cases where they did not feel the trial judge treated his or her company fairly.  If one asks the same clients to consider their experience in litigation over a long stretch of time, they tend to express tremendous respect for the judicial office and the people who serve in that function.  One can therefore see how a perception of bias hurts the lawyer’s ability to advise clients about what the law is and the range of appropriate judicial outcomes.  It becomes part of a lawyer’s daily routine to tell clients, somewhat cynically, “This is the applicable law,” and follow that up with, “But this is how the court is likely to decide it based on sympathy.”  The more lawyers sense the need to deliver this double-barreled advice, their authority as advisers diminishes in favour of the dubious mystery played by oracles.


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