Monday, April 02, 2012

Lawyers, behave with civility but don't become "verbal eunuchs!"

Good Day Readers:

Had to smile upon reading this article. Who among us hasn't been called a lot, lot worse than loathsome, arrogant or fundamentally unjust having non-existent listening skills?

The two things you don't want to do, however, is say, "obviously" to a judge or use you didn't have time to do whatever otherwise you could get 30-days.

Clare L. Pieuk
Critiques must be tempered
SCC stresses civility when taking issue with judges or faults in the judicial system

By Cristin Schmitz
April 6, 2012 Issue

The Lawyers Weekly followed young Montreal litigator Sophie Dormeau as she argued Dore versus Bernard her first appeal at the Supreme Court of Canada.

Lawyers must show “dignified restraint” when criticizing a judge or the justice system, the Supreme Court has ruled in a 7-0 judgment that also settles how discretionary decisions by administrative bodies are to be assessed for Charter compliance.

Justice Rosalie Abella’s March 23 ruling in Dore v. Bernard, under reserve for 14 months, deals with two important questions.

First, how far can lawyers go in criticizing a judge or the justice system, without running afoul of law society rules mandating lawyers to maintain professional civility and public respect for the administration of justice?

Justice Abella answered that “lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so. But they are constrained by their profession to do so with dignified restraint.”

Her admonition was welcomed by two interveners in the case.

“It both enhances freedom of expression in making it a duty upon lawyers to criticize judges if they have to, but on the other hand putting it within bounds of civility, which I think is a necessity for our profession,” said counsel for the Canadian Civil Liberties Association, Sylvain Lussier of Montreal’s Osler Hoskin & Harcourt.

John Hunter, president of the Federation of Law Societies of Canada, told The Lawyers Weekly that the umbrella group is “pleased that the court has reminded legal counsel of their duty to behave in a dignified way, both in and out of court.”

Hunter, of Hunter Litigation Chambers in Vancouver, added that “while noting that respect for expressive rights may require disciplinary bodies to tolerate a degree of ‘discordant criticism’ of the courts, the court made it clear that the public expects members of the legal profession to behave with civility.”

The court also answered a second question with far-reaching implications:

What analytical approach, and standard of review, should a court apply in determining whether an individual’s Charter rights have been violated by a discretionary decision made by one of the country’s thousands of administrative decision-makers, who include professional regulators, review boards, parole boards, prison disciplinary tribunals, and child welfare authorities?

Settling a decade-old debate, Justice Abella ruled that administrative decision makers’ discretionary decisions should generally be reviewed for constitutionality within the traditional deferential administrative law framework, on a standard of reasonableness, rather than be assessed under a full blown Oakes analysis.

“Our choice is between saying that every time a party argues that Charter values are implicated on judicial review, a reasonableness review is transformed into a correctness one, or saying that while both tribunals and courts can interpret the Charter, the administrative decision-maker has the necessary specialized expertise and discretionary power in the area where the Charter values are being balanced,” Justice Abella said.

In opting for the less searching, more deferential approach to judicial review, she explained that the administrative decision-maker must balance the Charter values at stake in the decision with the objectives of the statute he or she is applying to arrive at “a proportionate balancing of the Charter protections at play.”

“If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable,” she observed.

Justice Abella went on to dismiss the appeal of senior Montreal defence counsel Gilles Dore against the decisions of the Quebec courts below, which upheld the reprimand he received from the Barreau du Quebec.

The Barreau ruled that Dore violated its professional ethics rule that an advocate’s conduct “must bear the stamp of objectivity, moderation and dignity” when he sent a scathing, albeit private letter to Quebec Superior Court Justice Jean-Guy Boilard.

After the judge publicly disparaged Dore in court, Dore wrote the judge a letter calling him “loathsome,” arrogant and “fundamentally unjust.”

He accused the judge of hiding behind his judicial status “like a coward,” having “non-existent listening skills” and using his court “to launch ugly, vulgar and mean personal attacks.”

(Justice Boilard was himself later reprimanded by the Canadian Judicial Council, which found that he made unwarranted and insulting personal attacks on Dore.)

The Barreau’s disciplinary council ruled that Dore overstepped the generally accepted norms of moderation and dignity.

However, Dore’s counsel at the Supreme Court, Sophie Dormeau of Montreal, urged that the reprimand — ​which was accompanied by a 21-day suspension — ​should be set aside as a violation of the right to freedom of expression.

The court evinced some sympathy for Dore.

“His displeasure with Justice Boilard was justifiable,” Justice Abella observed, “but the extent of the response was not.”

She held that “in light of the excessive degree of vituperation in the letter’s context and tone” the disciplinary council’s conclusion that Dore went too far “cannot be said to represent an unreasonable balance of Mr. Dore’s expressive rights with the statutory objectives.

Gavin MacKenzie of Toronto’s Heenan Blaikie, an expert on professional responsibility, said the court has established “a welcome intelligible standard” for assessing whether lawyers’ statements transgress the bounds of professional civility.

He said it is noteworthy that Dore was cut no slack on the basis that his comments were made in a letter to the judge.

“I think there is a lesson there that lawyers should refrain from making disparaging personal comments about judges privately, as well as publicly, because you can never be sure that they will remain confidential,” MacKenzie advised.

Dormeau told The Lawyers Weekly the ruling affirms a broad but not unlimited right for lawyers.

“Criticize. Don't insult,” is the court’s message, she said.


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