Legal Research

When and How Can Lawyers Criticize Judges?

By John Gregory

A lawyer’s ability to complain to a judge about the judge’s behaviour in court is about to be reviewed by the Supreme Court of Canada. The SCC will hear the appeal in Doré v Bernard. Gilles Doré was penalized by the Barreau du Québec for his letter to the judge of a case in which Mr. Doré had been counsel. Though the letter was marked private, the judge sent it to his Chief Justice, who sent it to the Barreau. More details are in this story in the Montreal Gazette. The text of the letter leads off the reasons of the Quebec Court of Appeal.

Two points of particular interest, beyond the main issue in the case:

* The Canadian Judicial Council severely reprimanded the judge in question for the conduct about which Mr Doré complained, which suggests that the complaint had merit.

* Many legal associations, such as the Young Bar Association of Montreal, are intervening on behalf of Mr. Doré, though legal governing bodies like the Federation of Law Societies take the side of the Barreau. It is extremely rare for any legal groups to criticize judges. They are predictably faithful in supporting judicial salary increases, for example, and in general for standing by judges when the public criticizes them.

One wonders if the Federation of Law Societies is standing a little too close to the Barreau in this case. It may be wondered how a lawyer casts the administration of justice into disrepute by writing a private letter to the judge. If the judge chooses to make it public, must the lawyer be disciplined?

In Ontario, one recalls the Court of Appeal’s finding in Harry Kopyto’s case, that judicial sensitivities were not so readily offended as to convict Mr Kopyto of contempt of court for saying that the courts and the police stuck together like Krazy Glue. Should the standard applied in professional discipline be different from the standard for contempt?

Full post as published by Slaw.ca on January 21, 2011 (boomark / email).