Friday, August 08, 2014

When will the Canadian Judicial Council do something about the "judgeitis" epidemic sweeping the country?

"Justice may be blind but the public isn't." ..... Supreme Court of Canada Justice Rosalie Abella.

Good Day Readers:

First encountered the term "judgeitis" in conversation with a respected, veteran Winnipeg lawyer. When asked what it meant they said, "Power had gone to their head." They then went on to suggest about 50% of Winnipeg Law Courts Justices/Judges suffer from this affliction.

1. Why? It Begins At Law School

Undoubtedly there are many reasons. Perhaps it stats in law school where some come away with a misplaced sense of privilege, entitlement and importance. For whatever reason(s) they view themselves as different and above students from other faculties

2. A Flawed Appointments Process

Toronto Lawyer Rocco Galati with his successfully legal challenge of the Marc Nadon Supreme Court of Canada appointment graphically demonstrated how flawed the appointment process is and how it has been abused over the years. Then there's a nomination process about which the public and taxpayers know virtually nothing until the new Justice is handed over as a fait accompli. Even at that the confirmation hearing is a milk and cookies tea party (No tough questions here!) compared to the American system where candidates are grilled in public - Alice in Wonderland versus the barbecue.

In Manitoba there are some classic examples. Vic Toews, Brian Corrin and Robert Dewar to name a couple all stars.

3. Life Long Appointments - Croak Or Retire Whichever Comes First

Where else in society these days are people given guaranteed jobs with huge salaries and benefit packages until they're 75 and who are virtually impossible to fire? The current system creates fossilized relics from the past.

4. Poor And In Some Cases No Oversight Or Regulation

As the National Post article clearly demonstrates a judicial jerk was allowed to remain in place for many, many years past the time he should have been kicked off the bench. Why? Are Judges and Justices like the rest of you mere mortals subject to annual performance appraisals and what if they're under performers? You the public don't know because the courts won't divulge that information.

At the federal level look at the Canadian Judicial Council - Joke! How long has the Douglas Inquiry been going on and there's still no indication when it will reconvene since it adjourned more than 2 years ago. Like the Senate it needs to be abolished to be replaced with a new business model with much more layperson content.

Provincially it's even worse if that's possible. In Ontario, for example, under preforming Judges are subject to disciplinary action (hearings) problem is the Ontario Judicial Council virtually acts like a Star Chamber.

Plus let's not forget anyone and their uncle can become a Justice of the Peace. All you need do is be at least 18 years old and resident of the province for which you're applying.

5. Far Too Much Pomp And Ceremony And Not Enough Accountability

Judges are placed on a pedestal called a bench and clothed in black robes - God only knows what lurks beneath them! The great unwashed masses are expected to virtually genuflect when appearing before them but they could care less if the public gallery who's paying for the show can hear the proceedings because they and lawyers are mumbling and the courtroom is using Stone Age audio equipment.

To make matters worse you're expected to refer to them as "Honourable." Like Members of Parliament and Senators how do you know they're "Honourable?"

6. Too Many Judges Need A Basic 101 Course In Manners

How many Judges have arrived late for a proceeding only to make no apology. Only their time counts not yours. But the most shocking lack of respect is saved for self-reps who are there because of the ever escalating cost of legal fees. Far, far, far too often they're treated with borderline outright contempt and sarcasm and told to get a lawyer. Dhhhhh why do you figure they're self-reps? Because they can't afford lawyers. It's as though almost automatically it's assumed since they're "laypersons" what the .... could they possibly know?

Law Professor Julie Macfarlane (University of Windsor) has formed The National Self-Represented Litigants Project. Based on her interviews with many self-reps she could likely write a book or two about how Judges mistreat these individuals


7. You!

A grade 10 high school teacher many years ago said,"Remove all a man's prejudices and there isn't much left." The judiciary likes to perpetuate the myth the judiciary isn't biased.Balls!

Last word should go to Abraham Lincoln."In the end people get the kind of government they deserve." Don't complain about rude, sarcastic sloppy Judges and .....

To lawyers, don't be so anal attentive about your billables strive to be another Rocco Galati. Do you really think he's worried from where his next meal will come or his colleagues in the legal profession will have to hold a tag day for him?

Now for the profile of a couple judicial jerks.

Clare L. Pieuk
Barbara Kay: Biased judges are a stain on Canada's judiciary

By Barbara Kay
Thursday, August 7, 2014
Justice Jean-Guy Boilard's attitude toward a female defence lawyer was at the centre of a case appeal.

I once sued a horse dealer for fraud. I had an excellent case, but my lawyer said I would make a “bad witness.” Shocked, I protested that I was unusually articulate. That, apparently, was the problem. My lawyer knew the elderly judge presiding over the case, a man from a rural background, to be strongly prejudiced against city-slicker educated types like me. The defendant – although canny and manipulative – was not well educated and lived on a farm. My lawyer predicted the judge would sympathize with her in spite of the solid evidence on my side, and so it proved. The judge scowled at me the whole time I was on the witness stand, but literally simpered, his face wreathed in smiles, when my opponent witnessed. I was shocked at the overt display of bias, but my lawyer wasn’t the least bit surprised.

Court finds Quebec judge’s ‘intrinsically sexist attitude’ toward female defence lawyer grounds for new trial

MONTREAL – A Quebec Superior Court judge who struck fear in the hearts of lawyers for much of his 35-year career crossed the line with a sexist barrage aimed at a defence lawyer during one of his last trials, an appeal court has ruled.

The Quebec Court of Appeal ordered a new trial last week for a man convicted of first-degree murder in 2011, ruling that the “intrinsically sexist attitude” of Justice Jean-Guy Boilard toward defence lawyer Élise Pinsonnault undermined the accused’s right to a fair trial.

Continue reading…

Since then, having read countless narratives of other people’s experiences in family court (and transcripts), I know for a fact that judges have incredible latitude to exercise personal bias in their comments to lawyers and witnesses, in their decision-making, and even in their freedom to influence a jury. If they don’t make procedural errors, they can give free rein to their temperamental and personality quirks without fear of consequences.

A case in point is Quebec Superior Court Justice Jean-Guy Boilard who, an appeal court has ruled, “crossed the line” during one of his last trials, when he unleashed a string of misogynistic comments toward defence lawyer Élise Pinsonneault. “Abrasive and scornful, the judge called into question the professionalism and competence of [the defendant’s] lawyer, which the jury could not help but notice,” read the appeal court decision, in ruling for a retrial. Boilard called Ms Pinsonnault “Madame” instead of “Maître,” the obligatory unisex appellation for Quebec lawyers, he referred to her as “hysterical” when she asked to introduce evidence, and in general badgered her with anti-female remarks.

But the judge’s bizarre and shameful behaviour in this case was not in any way a departure from his normal style. Throughout his entire 35-year professional career, Boilard was notorious for his acerbic and unprovoked harassment of both prosecutors and defence lawyers alike. (Indeed, I checked in with a Montreal crown prosecutor I know, who regaled me with personal episodes that richly confirm the mean-spirited nature of Justice Boilard).

Crown prosecutors once signed a petition asking to be excused from appearing before him. In 2001 Boilard was forced to recuse himself from a biker trial, when the judge’s diatribe against defence lawyer Gilles Doré provoked Doré into responding with a denunciatory letter that became public, in which Doré accused Boilard with the words: “You possess the most appalling of all defects for a man in your position. You are fundamentally unjust.” The letter also resulted in a rebuke to Boilard by the Canadian Judicial Council, which only happens in extreme cases.

How can a man who wields so much power over the lives of others run amok like this with no oversight and virtually total impunity? Easy. Nobody stops them

By now, you are doubtless asking yourself the same question I asked myself on reading this sorry history. How did he get away with it for 35 years? How can a man who wields so much power over the lives of others run amok like this with no oversight and virtually total impunity? Easy. Nobody stops them. In most cases there is no recourse for the people whose lives are affected by such tinpot dictators. Lawyers keep their heads down because they know they have to keep appearing before biased judges. As for those most affected – defendants and plaintiffs – I know many men who have faced judges no less arrogant and biased than Boilard in family court, and have attempted to complain to bodies like the National Judicial Institute, to no avail. We only know about Boilard because his case was so egregious and because, let’s be frank, even a judge’s authority doesn’t trump overt misogyny in court, as it doubtless did when Boilard started out. But it should be a wakeup call to the necessity for a system of checks and balance.

A lawyer friend of mine once proposed an admirable solution to end biased judging. He suggested that on a case by case basis, prosecutors and defence lawyers should have to agree on the judges they come before. That way, only the fair and objective judges would get chosen. Judges unworthy of the office, like Boilard, would be marginalized and shamed, which would force a change in behaviour or a resignation. It’s worth a try. Unjust judges must be rooted out of the justice system.


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