President's View

Why criticism of judges is a concern

William M. Everett, QC

"It is reasonable that every one who asks justice should do justice."
- Thomas Jefferson

One Saturday morning early this year, I opened the Vancouver Sun to a blistering lead editorial about a high-profile case before the courts. It described a BC Supreme Court judge as "cavalier," as unable to grasp the concepts of "normal" or "judicious" and as running a courtroom filled with "antics" and "a law unto itself."

 On behalf of the Law Society I took immediate steps to remind the editor, and Sun readers, of a few key points. While critical comments on the substance of the judge's ruling are perfectly acceptable, those designed to attack the personal integrity of the judge cross beyond the limits of responsible journalism. The Vancouver Sun, which acted both as media outlet and litigant in that case, had full right to disagree with the ruling, but this did not justify personal criticism of an experienced and respected judge.

Around the same time as the Sun editorial, an Abbotsford News columnist was on a completely separate romp - tossing off unsubstantiated suggestions that BC's judges are financially indebted to "drug-peddling low-lifes." The thrust of the piece was to denigrate judges and the courts rather than to criticize the substance of any particular case. Again, the Law Society publicly challenged the comments.

There are other times when criticism is best left alone - and this is clearly a judgement call. We chose not to counter a few off-base newspaper comments on a high-profile sentencing decision because the majority of the reporting and editorial commentary in the paper was accurate and fairly explained the judge's scope in sentencing.

When is it appropriate for the Law Society - or an individual lawyer - to challenge media criticism of the courts?

Our courts are open, which means open to public scrutiny and criticism. Apart from the parties most intimately involved, most people will never step inside the courtroom or read the reasons for judgment. They will rely on the media to tell them the story.

This is a big responsibility for reporters who are expected to grasp the facts and points of law, describe the players and deliver a story of interest, all within hours and within set word counts. Some reporters do an admirable job in achieving accurate, quality reporting under these pressures; others fall short. In the wake of the reporters' work, editorialists take aim at the more salient and controverisal aspects of a case.

How far wrong does a story need to go, how unfair must a criticism be, before the legal profession should intervene with a counter viewpoint?

As noted by Cory J.A. (as he then was) in the Ontario Court of Appeal decision in R. v. Kopyto, judges are to expect criticism, even intemperate criticism:

Not all will be sweetly reasoned. An unsuccessful litigant may well make comments after the decision is rendered that are not felicitously worded. Some criticism may be well founded, some suggestions for change worth adopting. But the courts are not fragile flowers that will wither in the hot heat of controversy.

If criticism of the courts is expected, our counterpoints are best directed at those instances in which the media have truly crossed the line into unfounded, miguided or personal criticism.

As lawyers, we recognize that judges get just one chance to decide and explain a case. If a party believes that decision is wrong, it can be appealed. But judges cannot engage in a debate of their decisions or defend themselves against unfair criticism. It would be very dangerous to place judges in the midst of public controversy in this way, as they could appear to the public as susceptible to outside influences on how they decide cases. This would be an untenable compromise of judicial independence.

There should be no doubt: the legal profession has special responsibilities in upholding the independence and integrity of the courts. The Canons of Legal Ethics put it this way: "Judges, not being free to defend themselves, are entitled to receive the support of the legal profession against unjust criticism and complaint."

The American Bar Association's Commission on Separation of Powers and Judicial Independence a few year ago recognized this dilemma of needing to respond to criticism, but not to all criticism. The ABA Commission suggested state bar associations focus on these circumstances:

  • when the criticism is serious and will most likely have more than a passing or de minimis negative effect in the community;
  • when the criticism displays a lack of understanding of the legal system or the role of the judge and is based at least partially on such misunderstanding;
  • when the criticism is materially inaccurate, the inaccuracy should be a substantial part of the criticism so that the response does not appear to be nit-picking.

I agree that the legal profession has to counter unfair criticism of the judiciary, especially in high-profile matters that will have a serious or lasting impact on public perception. This is particularly important when the criticism amounts to a personal attack on a judge or is founded on a serious lack of understanding about the role of the judge. Such criticism is not only unfair to judges personally, but can improperly undermine public confidence in the justice system.

It is a responsibility of the Law Society to show leadership in this regard. But individual lawyers can also have a role, particularly in countering criticism of judges that may have an impact within a local community. I am reminded of a compelling letter to the editor of the Delta Optimist earlier this year written by counsel for a young offender whose sentence was a matter of local controversy. Taking the high road, the lawyer tactfully pointed out that the editor "did not meaningfully contribute to civil debate" by referring to judges as "clowns" and their judgments as a "joke." He also took the time to point out things the average reader would not know about the case - the character evidence that was before the court and the objectives of sentencing behind the Youth Criminal Justice Act.

When lawyers do choose to respond to criticism of the courts, such as by a letter to the editor, I pass on some of the suggestions of the ABA that statements in the letter:

  • be concise, accurate and "to the point," with no emotional, inflammatory or subjective language;
  • be informative and not argumentative or condescending;
  • include a correction of the inaccuracies, citing facts and relevant authorities where appropriate;
  • write in lay terms suitable for inclusion in a newspaper story;
  • include the point that the judge had no control or discretion (e.g., decision required by law);
  • include an explanation of the process involved (e.g., sentencing, bail, temporary restraining order), where appropriate;
  • not attempt to discredit the critic, that is, attack the competence, good faith, motives or associates of the critic;
  • consider the cause of the criticism or controversy, which might not be immediately apparent.

It is common sense to show respect, in criticism as well as praise. Be it media commenting on judges, or lawyers commenting on media, we would all do well to remember the words of Jefferson, to do justice as we seek justice.