When and How Can Lawyers Criticize Judges?
A lawyer’s ability to complain to a judge about the judge’s behaviour in court is about to be reviewed by the Supreme Court of Canada. The SCC will hear the appeal in Doré v Bernard. Gilles Doré was penalized by the Barreau du Québec for his letter to the judge of a case in which Mr. Doré had been counsel. Though the letter was marked private, the judge sent it to his Chief Justice, who sent it to the Barreau. More details are in this story in the Montreal Gazette. The text of the letter leads off the reasons of the Quebec Court of Appeal.
Two points of particular interest, beyond the main issue in the case:
* The Canadian Judicial Council severely reprimanded the judge in question for the conduct about which Mr Doré complained, which suggests that the complaint had merit.
* Many legal associations, such as the Young Bar Association of Montreal, are intervening on behalf of Mr. Doré, though legal governing bodies like the Federation of Law Societies take the side of the Barreau. It is extremely rare for any legal groups to criticize judges. They are predictably faithful in supporting judicial salary increases, for example, and in general for standing by judges when the public criticizes them.
One wonders if the Federation of Law Societies is standing a little too close to the Barreau in this case. It may be wondered how a lawyer casts the administration of justice into disrepute by writing a private letter to the judge. If the judge chooses to make it public, must the lawyer be disciplined?
In Ontario, one recalls the Court of Appeal’s finding in Harry Kopyto’s case, that judicial sensitivities were not so readily offended as to convict Mr Kopyto of contempt of court for saying that the courts and the police stuck together like Krazy Glue. Should the standard applied in professional discipline be different from the standard for contempt?
One can use law reviews and journals, though that’s not “real-time”. It’s been said there is more contempt of court in law reviews and journals than out of it. I, of course, would know nothing about anything like that.
It’s almost as if the question suggests a “cat can look at a king” answer. But this isn’t—or shouldn’t be–about who’s the boss of whom, or who’s more important.
As I think I’ve said here before, there’s this odd notion that judges are above lawyers in some hierarchy. I used to try to demonstrate to students that each has a function to perform and each does so as a servant of the system, if not “of the people.” Each member of the legal system owes the duty of respect and courtesy to the others. No less, but no more.
Indeed. What else would one expect when the legal establishment is one, integrated machine? How many of the complaints the CJC receives each year are from lawyers and how many are from litigants who’ve had to fend for themselves, facing professional counsel, in a courtroom? We don’t know. In fact we know very little about what’s in the CJC’s files. And therefore I am advocating for a complete independent audit, just like the one the federal Auditor General did on the Integrity Commissioner, Christiane Ouimet.
On the facts and the participation in the lawsuit, it looks like a case of the Establishment closing ranks in defence of one’s own, without any attention to the merits of the position of the affected parties.
Comment – Slaw – Jan. 23, 2011
Lawyers criticizing judges-contempt-administration of justice disrepute– Charter s. 2(b)-Doré v. Bernard, 2010 QCCA 24, [2010] Q.J. No. 88.
In comparison to Doré’s statement, the statements made on April 20, 2009, by the Minister of Justice and Attorney General of Canada, Rob Nicholson, on 2nd Reading of the Truth In Sentencing Bill (now in effect) were far more contemptuous of judges and damaging to the administration of justice. But for Parliamentary privilege, he should have been disciplined for his insults to the judiciary of Canada in our criminal courts. I think they are of the same damaging quality as those in _Kopyto _(Ont. C.A., 1987), cited in Doré (Que. C.A.). Kopyto’s statements were said by the Ont. C.A. to be “calculated to bring the administration of justice into disrepute,” but protected by Charter of Rights s. 2(b) freedom of expression. In a recently published article, I said that A.G. Nicholson breached the duty born by every lawyer, in any public forum, to show respect for the judiciary and not make statements that bring the administration of justice into disrepute; see: Ken Chasse, “Untruth In Sentencing Credit for Pre-Sentence Custody” (2011), 15 Canadian Criminal Law Review 75. The Appendix (pp. 104-109) contains A.G. Nicholson’s full statement in the House of Commons. If I am wrong, then A.G. Nicholson’s 2nd Reading statement sets a standard justifying an extension of the protection provided by Charter of Rights s. 2(b) for “public speech” by lawyers criticizing judges and bringing the administration of justice into disrepute. Therefore, Doré’s “private speech” should not have been disciplined, nor Doré suspended.
–Ken Chasse, Toronto.
One problem with Mr. Nicholson and his ilk is that they either believe what they’re saying or they don’t but they’re pandering to what they believe is their (and their party’s) core constituency. I leave it to the reader to decide which is worse.
Well, now I’m interested in what Nicholson said about the judges. No one could be more critical of the Canadian judiciary than me. My view is that the system run by the legal establishment in this country is now tearing itself apart. Sure, this process is going to take a while, but I think there’s little doubt about where it is headed. As a self-represented litigant (“supplicant”) what I wanted to see in the courtroom was a clear separation between the Bar and the Bench. Well, they might as well have all sat together. And then I found out about the CBA inviting the judges into their club in 1995. This is beyond a joke. How could anyone imagine it’s a sustainable situation? The monopoly has to go!
Here’s the challenge I have put to the judges:
http://www.uncharted.ca/images/users/ssigurdur/2011_pub_letter_lori_douglas.pdf