Judicial confidentiality in Canada

Judges often have access to information that is outside the public record, such as the deliberations of their colleagues and excluded evidence. Despite this, Canadian judges have no express obligation under current ethics frameworks, including the Canadian Judicial Council's 'Ethical Principles for Judges' and provincial codes of judicial conduct, to keep such information confidential or to avoid using it outside their judicial capacity. This gap means that it is possible for judges and former judges to take advantage of such information in ways that may undermine public confidence in the judiciary and the integrity of judicial deliberations. Surveying existing Canadian judicial ethics frameworks, the doctrine of deliberative secrecy, and the ethics frameworks of other jurisdictions including the UK and the USA, the authors argue that Canadian judicial ethics frameworks are inconsistent with international norms that recognize a duty of judicial confidentiality. The authors argue that imposing this duty would bring greater consistency to the legal profession by mirroring other duties of confidentiality and would safeguard public confidence in reasons for decisions and the intellectual freedom of judges' deliberative processes. The authors recommend that 'Ethical Principles for Judges' should be revised and that the Canadian Judges Act should be amended to create a duty of judicial confidentiality that can be enforced against current and former judges using more flexible sanctions than currently exist.