CKNW Editorial
for September 28, 2001

I have, for the most part, been pretty defensive of the courts over the years … for two reasons. I’ve seen them work close up and know that they often don’t get reported on accurately because either the media is inexperienced or doesn’t have enough time to do a thorough job … and because Judges, for the most part, can’t defend themselves. It’s been personally difficult to do this in light of treatment I myself have received. I had a judge find that I had a $525,000 mortgage free house in West Vancouver, where I have never lived whereas in fact I had a home in North Vancouver worth less than $500,000 upon which there were $385,000 in mortgages; he decided that I owned two sailboats whereas the one I had once owned had been sold long before the hearing in order to pay my legal bills, all of which evidence was uncontradicted and documented. The judge was lazy, assumed that I was rich which I distinctly am not and jumped to conclusions. My remedy, of course, was to find another $25,000 and go to the Court of Appeal.

That, of course, was of no concern to the judge in his lofty position. It is immaterial to judges that going to court is beyond the means of most people and that lawyer’s fees are outrageous … the reason for their casualness is that not all that long ago they were charging the same unconscionable amounts of money.

I have changed my mind on the question of accountability of judges. I have always been queasy about electing judges for fear that judges will run on the basis of how many people they convicted last year or some yardstick like that. And I have always been very leery of letting politicians remove judges because in the opinion of the politician the judge isn’t doing a good job. It doesn’t take much of an imagination to see judges deciding cases not on the merits but how they will look to voters or politicians and will thus lose their independence and their objectivity.

But, dammit, the judges are asking for it. If the only accountability comes after some poor citizen shells out his life'’ savings in hopes that another group of ex-lawyers one level up will give him justice, that’s no accountability at all.

Now we have the Supreme Court of British Columbia saying to you, the citizens of this reputed democracy, that you shall not see what goes on inside their courts.

The essential ingredient of a fair justice system is that trials be open. It was famously said that "Justice must not only be done it must manifestly be seen to be done." In fact, the rules for holding trials in secret are very strict and really boil down to either a matter of national security or hurting someone who is innocent, or a child. Now Madame Justice Bennett has held in the Glen Clark/Dimitrio Palarinos trial that you will be not permitted to watch because you cannot personally get down to the courthouse. In fact if you could, the chances of getting a seat are virtually nil anyway, given all the media and other special people who will be there.

This is outrageous. 37 of the 50 United States of America permit televised trial without consent of either party without any appealable issues at all having developed.

What the judge is saying, in effect, is that open justice is when a handful of the public, after lining up for hours, finally gets a seat in the back of the room.

When the rules for openness developed, society was rural. People had time to go down to the court to see the judge and jury dispense justice. Things are much different. The numbers of people who want to see justice done have increased a thousand fold, ten thousand fold. Courtrooms are inadequate to satisfy the wish of the public to see what is going on, and people are busy.

Now … if there was evidence that justice would be thwarted or impaired, that would change my position. If the mere presence of a camera would imperil the dispensing of justice I suppose the public interest would have to be sacrificed to the need for a fair trial. The fact is there is no such evidence and Madam Justice Bennett heard no such evidence. I canvassed this matter carefully with counsel for the media.

Moreover, let me assure you as one who has worked a courtroom or two, that courts have always been able to handle discipline and dealt with lawyers or witnesses who overly played to the peanut gallery. That seems to be one of the worries … flamboyant people, especially lawyers, would put on a show for the cameras and somehow justice would be denied.

It’s nonsense. There have been flamboyant lawyers in courtrooms in the UK, in the United States and Canada since time immemorial and no one has complained that the administration of justice has been impaired – at least not by reason of that.

But would witnesses be unduly upset? Hardly. We’re not talking about camera men on cherry pickers roaming around the courtroom sticking lenses in witnesses faces. There is a camera – one – in the back of the courtroom.

What this is all about is this. The bench has become a priesthood unanswerable to society. They don’t have to answer anyone’s questions – indeed, I can only get a judge on this show if I promise not to open the lines and expose his dignity to a ruffling question from the rabble. They and the lawyers still wear silly looking outfits creating an atmosphere of something approaching an initiation ceremony into a secret society … that is far, far more intimidating of witnesses and parties than would be an unlimited number of cameras.

Is it any wonder that respect for the justice system is at an all-time low? How can a member of the public have respect for people mumbling around in medieval garb making decisions based upon proceedings that for all intents and purposes are shielded from the public gaze?

The public is getting fed up with politically favoured lawyers being set up as high priests in charge of proceedings shrouded in mysterious mumbo jumbo, the priests being sheltered from all criticism except that couched in the most loving and respectful terms by other lawyers cum high priests who have been elevated to a higher court.

But best not to let it bother you. We live in an autocracy which is untroubled by anything approaching democracy, where the establishment does as it pleases and then, quite legally of course, keeps the serious stuff away from the prying eyes of the great unwashed. To think about it will only make you angry which will turn to intense frustration when you realize there’s not a damn thing you can do about it.