Judicial independence and the media

Thursday, May 18, 2017

Is there an “unstated compact” between the judiciary and the media? Should there be? And if so, what should it be?

The notion of an “unstated compact” found its way to me from a bit of a distance, emanating from a speech given by Justice Barry Leon, who sits on the Eastern Caribbean Supreme Court (ECSC) bench, presiding over the Territory of the Virgin Islands.

Leon, it turns out, is a Canadian, previously a longtime Toronto-based Torys LLP partner, litigator and arbitrator. Leon also spent a few years in Ottawa at Perley-Robertson, Hill & McDougall LLP helping to build the firm’s international arbitration practice before accepting an appointment to the ECSC. Because the Virgin Islands is home to a host of offshore companies, the ECSC is a globally respected forum for commercial litigation, deeply attuned to the British legal system and common law.

In February, Leon addressed the 50th Anniversary Special Sitting of the ECSC. Given the asynchronous cacophony of judicial criticism emanating from the U.S. president’s mobile phone then and since, it’s perhaps not at all surprising that Leon chose judicial independence as his topic.

After assailing what he called “improper assaults” on judicial independence, he noted that the media played an important role in the justice system.

“We are safer and freer, individually and collectively, because of our media,” he said. “There is — and must be — an unstated compact to protect its legitimate interests in reporting news fairly and accurately.”

The compact, as Leon saw it, required the judiciary to protect the media’s legitimate interest. For its part, the media had an obligation not only to keep its criticism of judges “within appropriate bounds” but also to “defend firmly judicial independence and judges who cannot speak publicly to defend themselves.”

At first blush, I thought, that’s fair enough. But then I started to think that the notion of a “compact” between anyone or anything and the judiciary could be a dangerous thought.

The judiciary’s job is to uphold the rule of law — period. Whether that amounts to “interpreting law” or “making law” is for the judiciary to decide. In this, judges’ only consideration should be an impartial approach to the law itself. The idea of a “compact” with anyone militates against that approach.

This is not to say that judges don’t have obligations, including protecting media’s legitimate interests. But these obligations don’t flow from a compact with the media. They flow from the rule of law.

There are those who will say that it’s a distinction without a difference. But, as the law tells us about bias, it’s the appearance of bias, not necessarily actual bias, that underpins the notion of impartiality.

The danger in interpolating a compact with anyone is that it works against the perception of judicial neutrality. Isn’t it bad enough that critics of liberal judges or decisions are already fond of marking the influence of the “left-wing” press?

And just which media is the compact with? Isn’t there a real debate about what is “legitimate” media these days? Isn’t that what the debates about free speech and the propriety of restrictions on hate rants are all about? Given the pervasiveness of the flow of information in today’s society, aren’t judges inevitably going to have to decide what “legitimate” media really is?

When the time comes to make that determination, if it isn’t already here, it would be best if judges weren’t perceived as having a “compact” with anyone. That’s, for example, why I think Supreme Court of Canada Chief Justice Beverley McLachlin did err in 2014 when she tried to communicate with then Prime Minister Stephen Harper’s government over the appointment of Federal Court of Appeal Justice Marc Nadon to the high court.

After Harper criticized McLachlin for making the call, the Toronto Star’s Tonda MacCharles cited the “overwhelming chorus” in Canada that “said the best thing Harper could do is withdraw his remarks and apologize.” The International Commission of Jurists concluded that McLachlin’s conduct was “not inappropriate.”

In my opinion, both the chorus and the ICJ missed the point: it’s not whether what McLachlin did was inappropriate, it’s whether her conduct gave rise to the appearance of impropriety.

That’s not to say that Harper was justified or well-advised in criticizing the chief justice. It’s just that the responsibility for avoiding the appearance of a compact with anyone starts with the judiciary themselves.

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