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Judges on Twitter? Ethical guidance for those on the bench under review

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TORONTO — Whether Canadian judges should be active on Twitter, Facebook or other social media and what involvement they should have in community life are among issues under a review that aims to modernize ethical guidance for those on the bench.

As part of the first such update in 20 years, the body that regulates judicial conduct has launched consultations as a way to gauge public sentiment on acceptable conduct for federally appointed judges as it seeks to update and streamline its guide: “Ethical Principles for Judges.”

“As society evolves, so do the ethical issues that judges sometimes face,” Chief Justice Richard Wagner said in a statement.

While bedrock principles for judges such as integrity, independence and impartiality are not up for debate, the review focuses on six themes — some new, some in need of updating: Social media, public engagement, post-retirement, self-represented litigants, case management, settlement conferences and judicial mediation, and professional development.

“The work of judges has changed. Society has evolved. New and emerging ethical questions are before us,” the Canadian Judicial Council says in a background paper. “Reflecting this changing environment, council is reviewing the current ethical principles to ensure they continue to provide guidance for judges in a manner that reflects evolving public expectations.”

Public feedback is requested by way of an online survey in which respondents are asked to agree or disagree with a series of statements such as: “Judges should not identify themselves as judges on social media” or “Judges should not use social media to ‘like,’ ‘friend’ or ‘share’ about matters that could come before the courts, generate negative debates (political or others) or be the subject of controversy.”

Underlying many of the questions is to what extent judges should be socially reclusive and whether it’s fair or even desirable to demand a judiciary that is isolated and aloof from the kind of active if ordinary social engagement most Canadians take for granted.

“Judges, of course, have private lives and should enjoy, as much as possible, the rights and freedoms of citizens generally,” the guide states. “Moreover, an out of touch judge is less likely to be effective.”

The current document makes it clear that its aim is to provide ethical guidance and “shall not be used as a code or a list of prohibited behaviours.”

However, breaches could lead to disciplinary consequences under the Judges Act, up to and including the rare step of being forced from the bench. In November, for example, the council rapped a well respected Ontario Superior Court justice for accepting a temporary dean’s posting at an Indigenous law school — the kind of dilemma the revised guide should help to resolve. The matter, still before the courts, provoked angry criticism of the judicial council itself.

Mixing personal and public interests can also backfire, such as in the case of Frank Newbould, who resigned as a judge under a cloud over his participation at a community meeting to consider a land-claim settlement in an area in which he had a cottage.

“To an increasing degree, judges engage with the wider community to inform and educate the public about the role of the judiciary in maintaining the rule of law, and to participate in opportunities that allow them to become better informed about the communities they serve,” the council says in its background paper. “This theme considers the ethical challenges that this engagement presents.”

One emerging area of concern is the growing number of judges who return to law practice after retirement from the bench. That raises questions about whether they should be allowed to pursue job opportunities before retiring, or use their former position to further a post-bench business career. Another survey question asks respondents to express views on the statement: “In general, former judges should not argue a case or appear in court.”

The internet age also makes it easy for judges, like anyone else, to access information online, raising the question of whether they should avoid looking for material relevant to a matter before them.

Neither the Canadian Superior Courts Judges Association nor the judges section of the Canadian Bar Association was willing to discuss the review.

Colin Perkel, The Canadian Press

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Saskatchewan to continue using ‘birth alerts’ despite calls by inquiry to stop

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REGINA — The Saskatchewan government says it will continue to track or seize babies born to Indigenous mothers despite a call to stop from the inquiry into missing and murdered Indigenous women and girls.

The inquiry’s final report recommends governments and child-welfare agencies immediately abandon what are known as birth or hospital alerts.

Saskatchewan’s Social Services Ministry says the alerts are registered if there is a concern about a mother and the potential safety of her baby.

It says social workers or health professionals can make the reports. 

The alerts allow government officials to be informed when a baby is born so a report can be investigated, which can result in a newborn being seized.

The ministry says 153 newborns were apprehended in Saskatchewan for their own safety as a result of 588 alerts issued from 2015 to 2018.

“We only do that in extreme circumstances,” Social Services Minister Paul Merriman said.

“At the end of the day, if a child is temporarily taken into care — no matter what age they are — our end goal is always reunification with the family to make sure that they have the opportunity to be a family as a whole.”

The ministry says more than 60 per cent of babies taken into care were placed with their extended family while staff worked with the parents.

The Federation of Sovereign Indigenous Nations said the government is unwilling to change its policies when it comes to delivering child welfare.

“When mother and baby are separated, obviously the mother is very distraught. She’s overwhelmed. She’s heartbroken,” said Morley Watson, first vice-chief of the federation, which represents Saskatchewan’s 74 First Nations.

In Manitoba, figures for birth alerts are much higher. A government spokeswoman said that in 2017-18, Manitoba child-welfare agencies issued 558 birth alerts for high-risk mothers, but did not have figures on how many of those resulted in apprehensions.

Cora Morgan, a family advocate for the Assembly of Manitoba Chiefs, has said, on average, a newborn is apprehended every day

In January, social media videos surfaced showing a newborn baby girl being taken from the arms of her Indigenous mother by Manitoba social workers and police. The move prompted outrage and renewed calls for changes to child welfare in the province.

A judge granted guardianship of the baby to the mother’s aunt in March.

Morgan said the Assembly of Manitoba Chiefs lobbied the MMIW inquiry to look at child welfare.

“Our elders have said that the most violent act you can commit to a women is to steal or take her children away,” said Morgan.

“It’s torturous for the mother.”

 

Stephanie Taylor, The Canadian Press

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Protests, legal challenges planned to block Trans Mountain pipeline expansion

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VANCOUVER — Opponents of the Trans Mountain pipeline expansion are preparing for a long summer of legal challenges and protests aimed at blocking the project from being built.

Rueben George of the Tsleil-Waututh Nation says it will file a legal challenge in the Federal Court of Appeal and he is confident the First Nation will be successful after Ottawa approved the project on Tuesday.

Squamish Nation Coun. Khelsilem says his band is also prepared for legal action and Vancouver Mayor Kennedy Stewart says the city will join any lawsuits that are filed.

Lawyer Eugene Kung says there are a number of legal arguments opponents could advance, including that it was impossible for the federal government to make an unbiased decision as the owner of the pipeline.

But Eric Adams, a law professor at the University of Alberta, says the court may be uncomfortable setting a precedent that governments cannot approve projects they support.

A 20-kilometre march is planned for Sunday from Victoria to the Saanich peninsula in solidarity with First Nations that are opposed to the project.

The Canadian Press

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