Judges and the politicized public inquiry

Jurist reports that Canadian Judicial Council head Richard Scott of the Manitoba Court of Appeal warned Canadian judges that they should exercise caution in agreeing to head up public inquiries intended to address controversial political issues.

This is good advice, since society expects judges to be, and to appear to be, impartial arbiters of the issues placed before them.

One hopes, however, that Justice Scott’s warning does not unduly deter judges from taking on that role, since public inquiries serve an important purpose in our judicial and political system.

A judge need only exercise caution so as not to appear to favour or disfavour any particular participant’s interests.

The warning seems to be a reaction to the ruling in Chretien v. Gomery, 2008 FC 802.  That case dealt with former Canadian Prime Minister Jean Chretien’s application for judicial review of the findings against him by Justice John Gomery acting as the head of the public inquiry into Canada’s sponsorship scandal.

It’s worth noting that the decision only found that Justice Gomery made comments in the media that might lead to a reasonable apprehension of bias in the reasonably informed observer.  It does not suggest that Justice Gomery was biased in fact.

In the end, the decision simply re-articulates the well-known standard to which judges are always held when acting in the course of their duties.

Justice Scott’s warning should not be taken as being a sign that judges should curtail their participation as heads of future public inquiries.