Monday, January 24, 2005

Case No. 1: In 2002, a reformist lawmaker spent two weeks in prison for criticizing the judiciary. Since then, other reformers have been sentenced to jail for the same offence.

Case No. 2: In 2005, a lawyer is facing disbarment for comments he made about the judiciary in 2003.

Despite the similarity in details between these two cases, there is one fundamental difference: Case No. 1 occurred, not surprisingly, in Iran. Case No. 2? Why, that's happening right here in freedom-loving Canada.

Just before the commencement of Newfoundland's public inquiry into a series of wrongful convictions, Jerome Kennedy, a lawyer for several wrongfully convicted men, complained that the inquiry wouldn't investigate the role trial judges play in wrongful convictions.

Kennedy charged that some judges "don't know what they're doing," and suggested the political appointment process was responsible for the elevation of some sub-par judges to the bench. He also accused some judges of "intentional or unintentional bias."

Those are strong words, strong enough to prompt Newfoundland Supreme Court Chief Justice Derek Green to register a complaint with the province's law society. So Kennedy is now appearing before the society's disciplinary committee on a charge of professional misconduct.

Sound like Iran? You ain't heard nothing yet. Kennedy's case is not the only example of law societies harassing lawyers for criticizing the judiciary, nor is it the most egregious: In the 1980s, law professor Robert Martin, under whom I studied African constitutional law, was hauled before the disciplinary committee of the Law Society of Upper Canada for comments he made about the judiciary.

Unlike Kennedy's, Martin's comments weren't made in the heat of the moment, but were contained in an article he published in a legal periodical. Although the committee voted (in a 7-6 decision) against taking action against Martin, that a legal paper could get someone in trouble reveals the extent to which we've been coddling the judiciary.

To be sure, the judiciary faces unfair attacks on a daily basis, many of them perpetrated by journalists, who, to paraphrase Kennedy's comments about judges, often don't know what they're talking about.

In contrast, most lawyers do know what they're talking about, and their opinions about the administration of justice are therefore often given added weight. Consequently, they must be especially careful when criticizing the judiciary because groundless accusations could threaten the reputation of the justice system.

That said, the judiciary isn't some feeble branch of government that will dry up and blow away in the face of a few harsh comments. The other two branches of government -- legislative and executive -- continually face a barrage of accusations, many of them unfair, yet somehow they've managed to survive.

Of course, judges, unlike politicians, traditionally spoke only through their judgments, and were therefore unable to respond to criticism. But some judges, including Supreme Court of Canada Chief Justice Beverley McLachlin, have begun publicly countering the many unfounded allegations against the judiciary.

It's evidently working: Despite bad press, judges always score at or near the top in polls of the most respected professions, unlike bottom feeders such as lawyers, journalists, politicians and serial killers.

But bottom feeders have a role to play. Lawyers, for example, are expected to take a leading role in improving the legal system, and that sometimes necessitates criticizing the judiciary.

Kennedy broached a profoundly important subject -- the political appointments process for judges -- and while his comments were impolite and intemperate, such language is often necessary to capture the attention of the public.

The judiciary itself has recognized this: Former Supreme Court of Canada justice Peter Cory, while presiding over an Ontario Court of Appeal case involving a lawyer who had slammed the judiciary, acknowledged that "disrespectful language may be the necessary touchstone to fire the interest and imagination of the public."

That, evidently, is something the Law Society of Newfoundland has yet to learn. And in proceeding with injudicious disciplinary hearings, law societies, not outspoken lawyers, pose the real threat the reputation of the justice system.

pmcknight@png.canwest.com

click on:Free speech is in the public interest,by Michelle Mann CBC News Viewpoint | January 24, 2005 |