Wednesday, January 19, 2005 National Post

By RICHARD FOOT

Disciplinary action against an outspoken Newfoundland defence lawyer is raising questions about the freedom of Canadian lawyers to criticize the judiciary.

Jerome Kennedy, a prominent St. John's criminal lawyer, faces a rare disciplinary hearing today by the Law Society of Newfoundland for publicly stating that some trial judges are biased or incompetent, partly because they owe their jobs to political patronage.

Peter Russell, a political scientist at the University of Toronto and a leading constitutional scholar, expressed outrage on Monday that any lawyer in Canada might be sanctioned for criticizing judges.

"I think it's very alarming that a law society would do this. All around the democratic world now, lawyers are free to criticize the judiciary. If Mr. Kennedy is punished, they would be acting in a very reactionary way".

A director at the Ottawa-based Association In Defence of the Wrongly Convicted, Mr. Kennedy has been a major figure in an ongoing Newfoundland inquiry into the wrongful murder convictions of three men between 1989 and 1995.

In 2003, he was frustrated by the refusal of the Newfoundland inquiry commissioner, former Supreme Court of Canada chief justice Antonio Lamer, to examine the role of trial judges in the wrongful convictions.

That summer, Mr. Kennedy told news reporters that judges and jurors are partly to blame for the miscarriages of justice in his province.

"It's the trial judges, some of whom don't know what they're doing," he said. "Part of this is as a result of political appointments, Part of it is as a result of either intentional or unintentional biases."

Those comments raised the ire of Judge Derek Green; Chief Justice, of the Newfoundland Supreme Court, who complained to the provincial 1aw society that Mr. Kennedy cast serious aspersions on the judiciary generally with the potential of affecting public confidence in the court as an institution.

Chief Justice Green said the' scope of the Lamer inquiry was a proper subject for "responsible and measured public comment by lawyers." But he said Mr. Kennedy's comments went "well beyond fair and proper comment,"

In his complaint, the judge said Mr. Kennedy's comments "appear to be a generalized condemnation of the judges of the Supreme Court," suggesting not "systemic bias but also deliberate - i.e. intentional - partiality and closed mindedness.

"It is surely not proper for a lawyer to allege, in public, incompetence and partiality against judges either individually or collectively". .

Instead, he said Mr. Kennedy should have raised his concerns through a private complaint with the Canadian Judicial Council.

Mr. Kennedy declined interviews on the subject until his hearing today, but his law partner, Bob Simmonds, said.on Monday that he was right to speak publicly about alleged problems in the judiciary.

"The statements Jerome made are factually correct," Mr. Simmonds said. Judges are politica1 appointments, and some, when patronage is at its height, are poor appointments.

"This is one of the main reasons for wrongful murder convictions," he said. "Why is it that every other factor in the wrongful conviction problem can be examined, but not the judiciary?"

Mr. Russell said the federally run appointment process for trial judges in senior Canadian courts remains flawed, despite a set of largely ignored, 20-year-old recommendations of the Canadian Bar Association to rid the system of patronage. Because the federal Cabinet still controls the appointment of trial judges in senior courts, he says, poorly qualified people are sometimes elevated to the bench.

What has changed under the freedom of expression provisions of the Charter of Rights, he said, is that lawyers should no longer fear issuing public criticism of judges.

Wayne MacKay, a constitutiona1 law professor at Dalhousie University' in Halifax, said lawyers do still face limits, on what they can say about the judiciary, especially when choosing to criticize an entire court rather than an individual

"Lawyers are part of a justice system which depends on the public's confidence," he said. "When a lawyer paints the whole judiciary with a broad brush, they have to be very careful"

Mr. Simmonds disagreed.

'We, as lawyers, have a duty to point out to the public the failings in the system. Why should we be afraid to say these things?"

CanWest News Service

January 19th 2005