Vancouver Province
for February 14, 1999

We’re a tame lot in this country when it comes to the justice system. "Yes milord … if your Lordship pleases … Your Lordship is so very kind" … and on it goes. The notions of respect for the courts taught Canadians amount almost to feudal fealty.

The Chief Justice, Antonio Lamer (with the greatest of respect m’lud) has, in a recent published interview, whined at length at the treatment the Bench is receiving in the media. He specifically complains at media reaction to a B.C. Supreme Court Judge who acquitted a man of possessing child pornography because to convict would diminish the accused’s freedom.

Just what the hell does the Chief Justice think will be public reaction to a decision which is reported as letting a guy off a kiddy porn case because he had a right to possess the stuff? Are the gentry expected to touch the forelock and say "Right, M’lud … if you say so"?

I say that the Justice system – which includes far more than judges – belongs to the people and they’re entitled to express their opinions.

There’s a great difference between criticism – even tough criticism - and holding the court up to contempt. All the media has done in the pornography case is challenge a decision, which revolts most Canadians, and ask the judicial system for an accounting. The difference between hard questions or comments and contempt may difficult to discern but judging from this and many other cases it seems that those in the legal system are pretty thin-skinned.

I say that respect for the justice system has been very much hindered by the closed shop, slavering obeisance, strange attire, and arrogant legalistic mumbo jumbo which characterizes our judicial system. It’s because people are discouraged from criticizing the system that they’ve come to regard it about as user friendly as the medieval Star Chamber or the Spanish Inquisition.

The argument is made that the media (hence the public) don’t hear the full case. If that’s so, judges ought to be very careful indeed that we simpletons who report on these matters understand what happened.

It’s also said that judges can’t defend themselves. Why not? If it’s beneath the dignity of a judge to answer criticism perhaps the dignity he sits on is too damned high. (These rules of what is and isn’t proper are made by the judges themselves who also, one must note, sit in judgment in their own case if they think there is contempt.)

I say this judicial harrumphing and judges hiding behind a smokescreen of their own making should end. It simply isn’t reasonable to expect a society in the full flood of the information age to be able to question, even impudently, all public decisions except those made by a judge.

Don’t get me wrong. The court process must be treated with respect. But surely if those running the legislative and executive branches of our government can have their feet held firmly to the fire, so can judges.

Does criticism of the bench bring the system of justice into disrepute?

Quite the contrary. It’s because of it’s feudal, secretive ways that there is presently a lack of faith in that system.

Chief Justice Lamer is horrified at the prospect that senior judges might be put through some vetting process before appointment as happens in the U.S. – he says it’s "political" and we know all about the prospective judge anyway.

This is just the sort of elitism that has the judicial system in trouble. The legal and political establishment may know the candidate’s record but what do those reading this column know about any lawyer who becomes a judge?

Lawyers have biases like anyone else. How do we know they won’t carry those biases into the courtroom if we can’t ask them and judge their responses? Why should we take the Minister of Justice’s word for the even-handedness of a prospective judge who in his practice always acted for one side, say for Aboriginal claimants … or ICBC … or the Crown? Why shouldn’t the public, through their legislators, be able to raise in advance what to ordinary folk seem obvious prejudices? Most of us have to answer tough questions before we get a job – why should a judge be any different?

I say to the Chief Justice – with the greatest of respect, of course – "lighten up and thicken your skin … it’s a different world out there and you and your colleagues really ought to join it."