The health of the bench

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More than a quarter of judges in Canada say their mental health has deteriorated since they were appointed to the bench. 

That’s among the findings of a new, first-of-its-kind study on the health and well-being of federally appointed judges in this country. 

Commissioned by the Canadian Judicial Council and led by Prof. Nathalie Cadieux at the Université de Sherbrooke, the study involved nearly 800 judges who answered questionnaires. 

Overall, the study found a high level of job satisfaction, with nearly 95 per cent of judges reporting a sense of pride in their work and 92 per cent feeling it has a positive impact on society. More than 89 per cent said their work aligns with their professional aspirations, and 81 per cent feel recognized and valued in their roles. 

This likely contributes to a strong sense of well-being, which 85 per cent of respondents reported. 

However, 26.3 per cent of judges said they’ve experienced a deterioration in their mental health since their appointment. 

“That's a statistic that we have to take seriously,” says Associate Chief Justice Kenneth Nielsen of the Court of King's Bench of Alberta, who chairs the Council’s health and well-being working group.

“I think maybe it shows a little bit of sometimes you don't know how hard a job is until you're actually doing the job. It may be that people have come in with a certain level of expectations, and find it's different.”

The reality is it’s a very stressful, high-pressure job, he says, and a lot is expected of judges. 

“So it's not surprising that that may take a toll on folks.”

Harvey Brownstone spent 26 years on the Ontario Court of Justice, and agrees that part of what’s at play is coming into the role with certain expectations and running up against a different reality.

He says the court system is “unbelievably inefficient, slow, complex, confusing, and cumbersome.” However, the “institutional inertia” that permeates big organizations like governments and the judiciary mean anyone who tries to fix it is going to face frustration and opposition.

“Those that come there with a lot of ambition and a lot of hope that they're going to really make a big difference, quickly realize that the culture doesn't support that,” Brownstone says.

In his book, Without Prejudice: My Life as a Gay Judge, which has been made into a movie set for release this fall, he draws on his own experience as a new judge, detailing what those who try to be inventive, innovative, or progressive change agents can encounter.

“It’s like it's like trying to turn the Titanic around,” Brownstone says.

“I don't know what percentage of judges feel stress and unhappiness because of that, but I know it exists. There is dissatisfaction among younger appointees who thought they were getting an opportunity to really make much-needed changes and improvements. They get disillusioned.”

That comes as the average age of a judge at first appointment has decreased over time.

Although the study found that judges experience overall less compromised mental health compared to lawyers, which was documented in a lawyer wellness study commissioned by the Canadian Bar Association and Federation of Law Societies of Canada, the common thread is that whether people are on the bench or not, no one is talking about their mental health. More than 61 per cent of judges said they rarely or never discuss it in their professional environment.

“Mental health has always been a bit of a taboo subject. That’s not unique to judges or lawyers,” Nielsen says. 

“I think the tide is changing on that. People are recognizing it as an issue much more than they have in the past.” 

He says Supreme Court Chief Justice Richard Wagner has been a proponent of trying to deal with the stigma attached to mental health issues. 

“He is the moving force behind getting this study done, and is a leader, as far as the profession is concerned, in trying to deal with it,” Nielsen says. 

“It doesn't do any good for the judiciary … to ignore this. That would be foolish. We've got to know what the situation is, and we have to do our best to try and address it.”

For his part, Wagner is taking time to review the study and its recommendations before commenting.

“In the meantime, he welcomes the publication of this report and is encouraged by the valuable insights it provides into the realities of judicial work,” the Court said in a statement. 

“The findings will help inform the Canadian Judicial Council's consideration of future initiatives to ensure judges continue to be well equipped to serve Canadians.”

The report found that the workload, along with the emotional demands of the job, contributes to exhaustion on the bench, with 45.4 per cent of respondents reporting high levels of burnout. Of those, half think about early retirement at least once a month.

“I've been on the court 19 years, and I can honestly say that the workload has increased significantly in that time,” Nielsen says of case volume and complexity.

Feelings of overload are fuelled by the number of sitting days, lack of human resources, pressure associated with self-represented persons, and informational overload. The latter is linked to the increase in the volume of evidence and documents, not all of which are relevant to a case, which can make decision-making more difficult. Sixty per cent of judges reported dealing with quantitative work overload.

An aging workforce also brings challenges, including a gradual decline in overall health. Nearly 33 per cent of judges reported living with at least one chronic condition.

The report makes recommendations to address work overload, including looking at the number of sitting days, increasing administrative staff, and adjusting workloads based on age.

It also proposes mechanisms to support judge retention and reduce mental health stigma, while strengthening access to counselling programs.

As the Council notes in a release, many of the issues the recommendations seek to address can’t be addressed by the judiciary alone, as factors such as workload and the number of judges and support staff are the responsibility of provincial, territorial, and federal governments. 

“While many of the recommendations fall outside the mandate of chief justices, the Council is committed to ensuring judges are supported in the exercise of their functions,” the release said. 

To that end, the Council said it’s considering its next steps, including increased collaboration with governments to ensure the judicial system is well resourced.