Letter from Chief Justice Not Misconduct, Judicial Council Concludes

OTTAWA, March 14, 2003 – The action of the Chief Justice of Newfoundland in writing The Globe and Mail about its report of a decision of his court did not constitute judicial misconduct, the chairperson of the Canadian Judicial Council's Judicial Conduct Committee has concluded.

But there are, however, several lessons to be drawn from the experience, notably that "abundant caution" is needed in seeking to correct "perceived errors" in reporting court judgments.

The Council today made public a letter to Chief Justice Clyde Wells, conveying the response to a complaint from the Honourable John Crosbie. Mr. Crosbie alleged that the chief justice interfered with the independence of two judges of the Newfoundland Court of Appeal by writing The Globe to contradict the newspaper's interpretation of their concurrence with a decision by Mr. Justice William Marshall. The article in The Globe's December 12, 2002 issue suggested that "a unanimous appeal court" had challenged the Supreme Court of Canada by saying judicial activism has gone too far.

A Council policy endorses a role for chief justices in correcting errors in public reports of judicial decisions. The policy "was intended for truly exceptional circumstances and, of course, where it is clear that the public report is erroneous," wrote the Judicial Conduct Committee chairperson, Manitoba Chief Justice Richard J. Scott, in his letter to Chief Justice Wells. "It was not meant as an avenue for judges to re-visit and clarify their reasons."

Chief Justice Scott noted that Chief Justice Wells, who wrote to The Globe with the consent of the other two judges of the appeal court panel, intended only to point out that Mr. Justice Marshall spoke for himself in discussing the appropriate roles of the courts and legislatures. Chief Justice Scott concluded "There can be no doubt that all of your actions in this matter were taken in good faith, in conscientiously seeking to fulfil your role as Chief Justice, in accordance with your view of the position of the Canadian Judicial Council. Indeed, the Council's 1999 paper on The Judicial Role in Public Information, states that ‘Unfair criticism and inaccurate reporting can damage the reputation of judges and erode public respect for the courts in the administration of justice.' It is obvious that your actions were taken with this consideration in mind."

Added Chief Justice Scott:

"Although the complaint may be described as significantly over-stated, a lesson for all of us in this matter is the abundant caution that must prevail when taking the initiative to correct perceived errors in relation to judgments. Indeed, I will be suggesting further consideration of this issue by an appropriate committee of the Council. Another lesson is the importance of judges speaking clearly in their judgments, including concurring judgments, to avoid potential misunderstanding. Finally, as the Council has previously recommended, sufficient resources should be made available to allow a Communications Advisor to be retained on behalf of the courts in each jurisdiction that does not already have such support."

In accordance with the Council's procedures, because the complaint involved a member of the Council, the complaint and its assessment were reviewed by independent counsel, who agreed with its disposition.

Chief Justice Scott's letter is attached. Information about the Council's role in dealing with complaints about the conduct of judges is found on its Web site at www.cjc-ccm.gc.ca.

Attach.

Contact

Ms. Jeannie Thomas
Executive Director
(613) 998-5182

March 12, 2003

The Honourable Clyde K. Wells
Chief Justice of Newfoundland and Labrador
Supreme Court of Newfoundland, Court of Appeal
Court House
287 Duckworth Street
St. John's, Newfoundland
A1C 5M3

Dear Chief Justice Wells:
Our File: 02-119

I am writing to you as Chairperson of the Judicial Conduct Committee of the Canadian Judicial Council in relation to the complaint of the Honourable John Crosbie.

The complaint is critical of your conduct in writing on December 12, 2002 to Mr. Kirk Makin of The Globe and Mail concerning how he had reported on a decision of a panel consisting of three judges of the Newfoundland Court of Appeal. Essentially, the complaint states that the decision should speak for itself and that it was improper for you to attempt to clarify the judgments of your colleagues.

It is understandable that you and some other members of your Court would be concerned about how the Newfoundland Court of Appeal was characterized in the newspaper article in question, which had appeared in the December 12, 2002 issue of The Globe and Mail under the heading "Judicial activism has gone too far, court says". The article suggests that "a unanimous appeal court" has thrown down "the gauntlet" in a direct challenge to the Supreme Court of Canada. On the other hand, provocative and exaggerated portrayals of judicial decisions in the media are hardly unique.

At the outset of your letter to Mr. Makin you stated:

In the ordinary course, decisions of this Court, as with any other court, must speak for themselves without further elaboration by any member of the court, except through the medium of a later decision of the Court. However, in a circumstance where misstatement of a decision is substantial and the potential consequences of the misstatement are significant, the unusual step of indicating the existence and extent of the misstatement has to be considered, lest silence be taken to be confirmation of the misstated position.

You also expressed the view that the newspaper article accurately reported the decision written by Mr. Justice Marshall but erroneously indicated that his decision was the unanimous decision of the panel (i.e. also including Justices Roberts and Steele).

In your response to the complaint, you have emphasized that the position stated in the paragraph quoted above, is amply supported by the position of the Canadian Judicial Council on this issue. This is reflected in the Council's endorsement in 1998 of the following recommendation of its Appeal Courts Committee:

A significant erroneous report should be corrected, as quickly as possible, through the Chief Justice or his or her designate.

In a related news release, the Council also emphasized that:

The principle of judicial independence and the perception of judicial impartiality are usually best served when judges refrain from commenting on their judgments.

The Council's publication, Ethical Principles for Judges, also counsels restraint as a general guideline for judges in relation to possible public engagement. The Council's endorsement of chief justices taking the initiative to correct errors in public reports of judicial decisions was intended for truly exceptional circumstances and, of course, where it is clear that the public report is erroneous. It was not meant as an avenue for judges to re-visit and clarify their reasons.

You have emphasized that it was not your intention to clarify or interpret the reasons of Mr. Justice Marshall. Your only purpose was to point out that he spoke only for himself and that the other two judges did not adopt his obiter observations in relation to the respective roles of the courts and the legislatures. The difficulty, of course, is that such a stated purpose can itself be subject to debate. For example, it raises the question of whether there is a practice or expectation that a concurring appellate judge, who does not wish to be associated with strong opinions expressed by another member of the panel, must expressly say so. Without entering into that debate, it is fair to conclude that the Council's position on correcting media errors was intended to encourage chief justices to intervene publicly where the fact of error is unquestionable and unfair.

The complaint also alleges that your letter to the author of the newspaper article constituted an interference with the judicial independence of the two judges whose positions you attempted to clarify. The simple answer to this allegation is that your letter was written with the consent and encouragement of these judges. However, judges themselves should not expect chief justices to serve as vehicles to clarify the positions they intended to take. Rather, such judges should ensure that their reasons are unambiguous in explaining their positions. Such an approach in the case in question most likely would have avoided this entire controversy.

The complaint also refers to your former role as Premier of Newfoundland in relation to some of the facts which were fundamental to the litigation in question. It is obvious that your letter to Mr. Makin made no reference, whatsoever, to the merits of the case. It goes without saying that it is important that all judges continue to be vigilant in avoiding circumstances that could adversely affect public perception of judicial impartiality.

There can be no doubt that all of your actions in this matter were taken in good faith, in conscientiously seeking to fulfil your role as Chief Justice, in accordance with your view of the position of the Canadian Judicial Council. Indeed, the Council's 1999 paper on The Judicial Role in Public Information, states that

Unfair criticism and inaccurate reporting can damage the reputation of judges and erode public respect for the courts in the administration of justice.

It is obvious that your actions were taken with this consideration in mind.

Although the complaint may be described as significantly over-stated, a lesson for all of us in this matter is the abundant caution that must prevail when taking the initiative to correct perceived errors in relation to judgments. Indeed, I will be suggesting further consideration of this issue by an appropriate committee of the Council. Another lesson is the importance of judges speaking clearly in their judgments, including concurring judgments, to avoid potential misunderstanding. Finally, as the Council has previously recommended, sufficient resources should be made available to allow a Communications Advisor to be retained on behalf of the courts in each jurisdiction that does not already have such support.

I have concluded that your actions in this matter involve the exercise of discretion in carrying out your role of Chief Justice, without any oblique or improper motive, and with the best of intentions. Accordingly, they clearly fall outside of the realm of judicial misconduct and this complaint file is accordingly being closed.

Because of the public nature of the complaint of Mr. Crosbie, a copy of this letter is being released publicly.

Yours sincerely,

Richard J. Scott
Chairperson, Judicial Conduct Cttee