Piercing the judicial veil

Bill Trudell
When I started practising, it seemed that judges were revered, hardly questioned, seldom heard in public and occupied rarified positions in our society. Not many people would suggest that a judge lived on their street or rode the bus. No one would question their judgments, ethics or stability and certainly not in the media.

That era has been adjourned.  

We are living in a new world where the judiciary itself is on trial.

Ironically, in a time when the politicization of criminal justice is a cause célèbre, the independence of judges inherently means that they can’t defend themselves.

I don’t subscribe to the political mantra that the public is losing confidence in the criminal justice system. But this is a serious problem and, unless it is addressed, that mantra, often factually incorrect, may indeed take on substance.

To begin, it is absolutely disgraceful that the president of the United States, Donald Trump, can publically denigrate judges who disagree with him.

Unfortunately, there seems to be a growing acceptance of this, shrugged off and ignored as, “It’s just the way he is.”

This lack of respect by the “leader of the free world” should not simply be left to be chastised by other judges. Every lawyer must condemn this in no uncertain terms. If the president of the United States can figuratively spit on judges he does not like, then the millions of voters who supported him surely could do the same. Certain judges then just become part of the “establishment,” who live in the so-called “swamp” that Trump wants to drain.

We are not totally immune in this country to political criticism of judges and cannot afford to be smug about respecting our judiciary.

During the Stephen Harper administration, judges were frequently criticized and their discretion shackled.  The former prime minister even publicly announced that he wanted certain types of judges appointed. This was a demonstrative violation of power, the rule of law and the independence of the judiciary. It unquestionably was a lack of respect.

We are currently witnessing a bandwagon of public judicial scrutiny and criticism.  

The inappropriate musings of former justice Robin Camp, the donning of a “Make America great again” hat in court by another judge, the unprecedented public attack on a judge who opined on the issue of drunkenness and consent or the recent casual “I like to sleep in my own bed” comment from the bench taken out of context have all fed an unsavoury and unfocused attack on the judiciary itself.

A private members bill has been introduced in Parliament restricting candidates to the bench to those who have special training in sexual assault-related education, demanding written reasons in all related cases and requiring mandatory oversight by the Judicial Council.

The sentiments may come from good intentions, but the bill is a dangerous intrusion into judicial independence.

Sadly, I think some judges have perhaps unwittingly contributed to the lack of respect that we are witnessing. A sense of judicial casualness seems all too common these days — harmless but inappropriate.

The careless lobbying and media interviews by the chief justice of Manitoba’s Queen’s Bench in a campaign to erode or end the preliminary hearing is simply unheard of. It should never be repeated.  

Moreover, with respect, the Supreme Court of Canada must lead by example.

Dissents and disagreements between the majority and minority positions should not feature sarcastic or folksy language that may be seen by some as similar to street fights.

Moreover, the R. v. Jordan decision, apparently to send a message regarding complacency in the criminal justice system, imposed unrealistic time frames and has wreaked absolute havoc.
The opinion of Justice Thomas Cromwell in dissent was prophetic.

He opined:
“Creating fixed or presumptive ceilings is a task better left to legislatures . . . The majority’s approach also risks negative consequences for the administration of justice . . . Ultimately the majority’s new framework casts aside three decades of the courts jurisprudence when no participant in the appeal called for such a wholesale change, has not been the subject of adversarial scrutiny or debate and risks judicial stays.”

I think the Jordan decision has done more to erode the public’s respect and understanding of our criminal justice system than any other decision in this century.

Cromwell’s careful and wise reasoning was ignored. We are living with the results.

It is often said that the best judges and the sanctity of the system are preserved when both the winning and losing parties leave the courtroom feeling that they were heard, treated fairly and with respect.  There is a judge, now retired, who epitomized this. Patrick Lesage, former chief justice of the Superior Court of Ontario, is revered for his wisdom and grace.

No one ever left his courtroom without a sense of respect for the man and the office he served.

We need our judges to attempt to emulate him, but we also need to defend them when they try. We must challenge uninformed criticism and attacks. We must discourage unfair public accusations and the politicization of criminal justice.

We should not support knee-jerk complaints to the Judicial Council.  

High court judges may no longer be referred to as “My Lord” or “My Lady,” but all judges are, and should be, referred to as “Your Honour.” Democracy, the rule of law and judicial independence demand it.

The veil is certainly pierced, but we should try to mend it.

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