“Refs, You Suck!”: Personal Attacks on Decision Makers

I watch a lot of hockey – but mostly on television. This year I attended a playoff game of the PWHL’s Ottawa Charge at the Canadian Tire Centre in Ottawa. It was an exciting game, but for me there was one concerning moment, when I heard thousands of people chanting, “Refs, you suck!”, after a call on the ice against the home team. As a hockey fan, I too did not like some of their calls, or non-calls, but there is a critical difference between attacking a decision and attacking the person who made the decision.

Before the game started, there was a public service announcement video of many of the players saying that harassment and abusive behaviour against fans, officials or players would not be tolerated. The fan code of conduct that appears on all PWHL team websites is a bit more generic:

The PWHL is committed to creating a safe and enjoyable environment for all fans. Please refrain from disruptive behavior, including foul or abusive language, or obscene gestures. Do not engage in fighting or the throwing of objects. Please report any violations of these rules to the nearest usher, security or guest services staff member….

Harassment of officials in all sports is a big issue at the community and minor league levels. There have been many reported incidents of parents harassing officials in games that their kids are playing. It has become so prevalent, that in hockey games, officials under the age of 16 wear green armbands so parents know not to harass them. Imagine a society where you are protected from general harassment only up until the age of 16.

Canadian hockey at the community level now has fewer officials than it did before the pandemic. The reasons for this decline are multifaceted, but a major factor is the abuse directed at officials. These community level officials are the feeder pool for higher levels and leagues. Ironically, fans who abuse officials because they are unhappy with officiating may be contributing to a shortage that could reduce the overall quality of officiating.

As a decision-maker, I have always had a lot of respect for referees who make decisions in the moment based solely on their own observations. For the bigger decisions, they may have some assistance from watching a replay but must still decide quickly, with thousands of people looking over their shoulders.

Tribunal members and judges rarely experience abuse in the hearing room. When it does happen, those hurling abuse are quickly removed from the room. Personal attacks against decision-makers, when they come, do so after a decision is released to the public.

At his annual press conference in June, Supreme Court of Canada Chief Justice Richard Wagner commended judges who have spoken out against attacks on the judiciary. He said, “We have seen judges and courts sometimes portrayed as partisan actors or described as obstacles to the will of the people.” Although he did say that his remarks were not confined to Canada, he did note “strong statements” by the chief justices in several provinces following political attacks on the judiciary. He stated that it was the responsibility of chief justices to speak out about any attacks on judicial independence or the rule of law.

One of those attacks was from the Premier of Ontario, Doug Ford, in a rant about bail reform last year. Ford said, “These judges that are bleeding hearts, I can’t wait until they retire. Matter of fact, I’ll pay them to retire earlier. I’ll pay you out, for two, three, four years. Just get out of the system”. In a joint statement, the chief justices of the Ontario Court of Appeal, the Ontario Superior Court of Justice, and the Ontario Court of Justice, said:

The principle of judicial independence is generally recognized as having two dimensions. The first applies to individual judicial officials and embodies the fundamental principle that a judicial official must be, and must be seen to be, free to decide each case on its own merits, without interference or influence of any kind from any source, including politicians. The second applies to the Court as an institution. It requires the Court, as a whole to be, and appear to be independent of the legislative and executive branches of government. Together, both dimensions safeguard the judicial decision-making process and, in turn, the public that the Court serves.

Every Canadian has the constitutional right to have their legal issues decided by fair and impartial judiciary. Our justice system is founded on public confidence that decisions, whether popular or not, are fully heard and fairly made. It is crucial that judiciary are both actually independent and appear to be independent so the public can be confident that judicial decisions are made without bias.

The other attack that Chief Justice Wagner was likely referring to happened earlier this year. The premier of Alberta, Danielle Smith, responded to a question from a caller about a bail decision on her weekly radio show: “I wish I could direct the judges, honestly. The judges get very, very prickly when you criticize them, but boy, the example you just raised, they deserve the criticism.” The chief justices in Alberta released a passionate statement about their role, emphasizing that Alberta’s judges are Albertans “like the people we serve.” They also stated:

Independence of the judicial branch protects the public. It ensures judges can make decisions based solely on the law and evidence presented. It frees judges from pressure or influence from external sources including the governments that appoint us.

I suspect that neither premier is chastened at all. In fact, Premier Ford was recently back at personal attacks on judges after a decision from the Superior Court of Justice on the right of the Region of Waterloo to dismantle a homeless encampment.

Ford said of the judge:

I wish I could get that guy’s address. I’ll send 15 encampments in his backyard and see how he likes it. [It’s] the craziest decision I’ve ever heard, but there are a lot of crazy decision coming from our courts lately.

Professor Martha Jackman of the University of Ottawa wrote a letter to the Ontario Attorney General on behalf of herself and other lawyers critical of Ford’s statement, calling it a “serious attack on the constitutional principle of judicial independence”. The letter stated that “judges must be free to decide cases without fear of intimidation, retaliation, or personal targeting by members of the executive branch”. The letter asked the Attorney General to:

• Publicly reaffirm the constitutional principle of judicial independence and the obligation of all members of the executive branch to refrain from conduct that may reasonably be perceived as threatening or intimidating judges.
• Publicly repudiate any suggestion that judges should be subjected to personal targeting or exposure of private residential information because of decisions they render.
• Confirm that appropriate steps are being taken to ensure the safety and security of the judge concerned and of members of the judiciary generally.
• Advise whether any additional protocols, guidance, or measures will be adopted to prevent conduct that may undermine public confidence in the administration of justice.

Ford’s office issued a prepared statement that missed the point completely. It said that the premier had “immense respect” for judges and their independence “but their decisions are not immune from scrutiny or from the impacts they have on people and communities across the province”. Ford’s comments went beyond criticizing the decision, to a vague threat of retaliation against the decision-maker.

Decision-makers are not immune from accountability for their decisions – either through judicial review or public comment about either the outcome or the reasoning process. The bright line that should not be crossed is attacking or threatening the decision-maker personally. Admittedly, the chant “Refs, your interpretation of the rule against goalie interference sucks!” doesn’t exactly roll off the tongue.