McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Volume 28
Montreal
1982
Criticising the Judges
Robert Martin*
No I
It is possible to evaluate the performance of
judges by examining the logical consistency,
literary quality, and responsiveness to social
issues displayed in specific judgments. Us-
ing these criteria, the author argues that de-
ficiencies in the Canadian bench are readily
apparent. The state of ourjudiciary should be
a matter of serious public concern but, in
fact, there has been remarkably little public
discussion of judicial inadequacy. The
media and members of the legal profession
have been equally circumspect. In Canada,
contempt of court citations do inhibit critic-
ism of the judiciary, but the law of contempt
provides only a partial explanation for our
quiescence. Our timidity is explained pri-
marily by the place which courts hold in the
Canadian ideological system. Our organic,
Tory view of the world with its attendant
respect for authority is rooted deeply.
Courts, which are seen to be rational, sys-
tematic and principled problem-solvers,
occupy a central role in our ideological sys-
tem. No serious criticism of the judges will
be undertaken until the deficiencies of the
Canadian judiciary are perceived to be of a
magnitude sufficient to be an ideological
liability.
II est possible d’6valuer la qualit6 du travail
des membres de la magistrature en exami-
nant certains arr8ts pour y analyser la rigueur
de la logique, l’emploi et la qualit6 de la
langue ainsi que le traitement accord6 aux
questions sociales en litige. A la lumi~re de
ces crit~res, l’auteur soutient que la magis-
trature canadienne souffre de faiblesses 6vi-
dentes. Selon lui, cet dtat devrait susciter
l’inquidtude du public, mais il constate que
tel n’est pas le cas et ddplore l’absence de
ddbat sdrieux au sujet de la question. Les
mddia et les membres des professions lgales
se signaleraient par leur silence collectif. Au
Canada, il semblerait que la menace de pour-
suite pour outrage au tribunal ait eu un effet
dissuasif a cet 6gard. Ndanmoins, l’outrage
au tribunal ne serait qu’un seul facteur parmi
expliquer cet dtat de
plusieurs servant
chose: la timidit6 de la critique serait princi-
palement attribuable, selon l’auteur, A la
place de choix qu’occupent les tribunaux
dans la structure iddologique canadienne.
Notre perception organique de la socidt6,
d’origine Tory, et le respect de l’autorit6
constitude qui en ddcoule, seraient ferme-
ment implantds chez nous. Les tribunaux,
vus comme de puissants arbitres rationnels,
justes et honn~tes, occupent un rrle prdpon-
ddrant dans ce systdme iddologique. Une
analyse critique des juges s’avdrerait donc
impossible avant le moment oit les faiblesses
de la magistrature auront atteint une dimen-
sion telle qu’elles seront perques comme une
menace A ce systdme.
*Of the Faculty of Law, The University of Western Ontario. This essay was prepared with
the assistance of funds provided by the Ontario Law Foundation.-I would like to thank Michael
Rumball for his most valuable assistance. An earlier version of this essay was presented at a
Faculty of Law Seminar at the University of Western Ontario in October 1981. I would like to
think that the essay benefitted from comments and criticism received then. I am particularly
grateful to my colleagues Craig Brown, Bruce Feldthusen, Denys Holland, Ian Hunter, Peter
Neary, Robert Solomon, and Michael Taggart. A revised version was given at a seminar
organised by the Centre for Investigative Journalism in Toronto in November 1981. The essay
has been substantially rewritten since that occasion.
McGILL LAW JOURNAL
[Vol. 28
Synopsis
Introduction
I.
H.
Deficiencies of the Canadian Bench
Criteria for Assessing Judgments
A. Logical Consistency
B. Literary Quality
C. Responsiveness to Social Issues
m. A Matter of Serious Public Concern
IV. Law and Ideology
A. Contempt of Court
1.
Scandalising the Court
a.
b.
c. General Considerations
Scurrilous Abuse
Imputing Improper Motives
B.
2. Contempt and the Charter
* 3. Effects of the Law of Contempt
Ideology
1. The Legal Profession
2. The Media
Conclusion
*
*
*
19821
Introduction
CRITICISING THE JUDGES
The general quality of the bench in Canada is, and has long been, low. I
am not referring to the fact that certain judges, at one time or another, have
engaged in questionable personal behavior.’ These peccadillos are, I would
suggest, simply the failings of individuals. They could be forgiven in a
judiciary which had exhibited consistently high intellectual, professional, and
literary skills. This has not been the case.
To state that the Canadian judiciary has had a history of being undistin-
guished is to express a personal opinion which is, by its nature, unprovable.
There is no generally accepted standard by which one can measure judicial
competence. Nor would there likely be agreement as to exactly what it is that
should be measured. The purpose of this paper is not to “prove” that the
Canadian judiciary is, as a whole, inadequate, although I will certainly argue
that to be the case. What I really want to do is to explain why Canadian judges
have not been subjected to extensive public scrutiny. The recent adoption of
the Canadian Charter of Rights and Freedoms’ adds significantly to this
investigation. The Charter may impel the judges to intervene more actively in
Canadian life, rendering decisions of a broadly social or political nature. The
quality and performance of the judges would then have a directly discernable
effect on people’s lives.
Canadians, and particularly legal academics, have been reluctant until
now to offer public criticism of the judiciary. Absent informed, sustained
criticism rooted firmly in Canadian reality, it is little wonder that the judges
continue to behave as if they performed their functions in a social void. A
critical legal literature is essential to the judiciary.’ That literature has de-
‘ See Government of Ontario, Report of the Commission of Inquiry into the Conduct of
ProvincialJudgeHarryJ. Williams (1978), reproduced in (1978) 12 L.S.U.C. Gazette 161. In
1965, Mr Justice Leo Landreville was alleged to have behaved improperly before his appoint-
ment to the bench. A one member board of inquiry in the person of Ivan Rand, a formerjudge of
the Supreme Court of Canada, examined the matter and appeared to accept that the allegations
were made out. See the extract from his report in J. Lyon & R. Atkey, eds, Canadian
Constitutional Law in a Modern Perspective (1970) 174-82. Subsequent litigation cast doubt
on the Rand investigation. SeeLandreville v. The Queen (No. 2) [1977] 2 F.C. 726, (1977) 75
D.L.R. (3d) 380. For an example of a Canadian judge with an alcohol problem, see the
fascinating article by Gosse, The Four Courts of SirLyman Duff(1975) 53 Can. Bar Rev. 482.
2Part I, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.).
3 See Zeigel, Some Aspects of the Law of Contempt of Court in Canada, England, and the
U.S. (1960) 6 McGill L.J. 229,246. See also the address by Dickson J., Canadian Institute for
the Administration of Justice Seminar on Judgment Writing (2 July 1981) and Russell, The
Effect of a Charter of Rights on the Policy-Making Role of Canadian Courts (1982) 25 Can.
Pub. Admin. 1, 33.
REVUE DE DROIT DE McGILL
[Vol. 28
veloped only recently in Canada, largely within the last twenty years.4 Even
now there is little basis for self-congratulation among legal scholars. Indeed,
Mr Justice Dickson launched recently his own judicial offensive against
Canadian legal academics. As he politely put it:
If I were to venture any criticism, it would be that the quality of good academic writing,
published in any year, is meagre in relation to the number of legal scholars to be found in
the law schools of the nation.5
The criticism is not new and others have been more blunt. 6
The question remains: Why have Canadian legal academics allowed their
critical faculties to atrophy? Why has the public been so quiet as well? In the
first part of this essay I propose to discuss the deficiencies of the Canadian
bench. In the latter part I will investigate the reasons for the apparent lack of
public concern about the quality of the judiciary.
1.
Deficiencies of the Canadian Bench
In attempting to evaluate the performance of judges, it would appear, on
the surface at least, that one might look at the results reached in actual cases.
But this approach is not as straightforward as it seems. How does one define
results? Do we mean the concrete resolution of the matters in issue between
the parties; or the effect of a particular decision on the development of legal
doctrine; or should we refer to the social implications of the decision? If we
look to the results achieved between parties, we are unlikely to advance our
understanding very far because it is in the nature of an adversarial system that
50 per cent of parties will be unhappy with the outcome. If we attempt to
assess results in terms of legal doctrine or social policy, we do little more than
embark on an exercise in subjectivity which will soon lose any pretence of
being an assessment of the judges themselves.
5Dickson,
The Role and Function of Judges (1980) 14 L.S.U.C. Gazette 138.
4See the remarks of T. Symons in Association of Universities and Colleges of Canada,
Report of the Commission on Canadian Studies (1975) 213-7. Professor D. Soberman was
critical of much of what the Report had to say about legal education. He did agree, however,
that the basic Canadian legal literature had yet to be written. See University Affairs (10 January
1977) 13. See also Murphy & Halevy, “Working Paper on Canadian Legal Publishing” in W.
Twining & J. Uglow, eds, Legal Literature in Small Jurisdictions (1981) 129.
6See Veitch & Macdonald, Law Teachers and their Jurisdiction (1978) 56 Can. Bar Rev.
714. This very interesting note also reprints a number of caustic observations about the
judiciary. In 1936, Professor Fred Rodell made comments about American legal writing which
can be applied equally well in Canada today: “There are two things wrong with almost all legal
writing. One is its style. The other is its content. That, I think, about covers the ground.”
Goodbye to Law Reviews (1936) 23 Va L. Rev. 38. Rodell returned to the subject twenty-five
years later. He recanted on none of his original views and added some exceedingly critical
remarks about the language –
normally employed in legal
periodicals. Goodbye to Law Reviews – Revisited (1962) 48 Va L. Rev. 279, 287.
the “unintelligible gibberish” –
1982]
CRITICISING THE JUDGES
Despite these difficulties, I have decided to use judgments as the basis
for my assessment of judicial performance. I do this for two reasons. First, we
enjoy, we are informed regularly, a system of government predicated on the
“rule of law”, not the “rule of men”. A central notion of the rule of law is that
our affairs are directed in consonance with an established body of legal
principles. These principles are applied in a systematic and rational fashion to
concrete circumstances. Whether or not this notion is accurate is irrelevant.
The important thing is that the idea of the rational, systematic application of
principle is an important part of our ideological system. It is also an idea to
which the main actors in the legal system are peculiarly committed. This is
why judgments play such a central role in our legal system, for it is in the
judgment of a court that the idea of applying principle is made manifest. 7
Secondly, judgments are peculiarly the work of judges. Judgments are what
judges produce. If we assess the ability of a painter by looking at his
paintings, we can assess judges by looking at their judgments.
More specifically, I will look in this Part at judgments of only the
Supreme Court of Canada. In a hierarchical judicial system such as ours,
decisions rendered by the final court of appeal are more significant than
decisions made by other courts. For this reason, one should expect to find the
most capable judges on the highest court.
But, the Supreme Court of Canada has had a century-long history of
mediocrity. Albert Abel, who in his lifetime developed a reputation as a
careful and meticulous commentator, once accused the Court of “shoddy
craftsmanship”, “floundering”, and “ragged exposition”.8 I would respectful-
ly concur. In the following section, I will suggest three criteria that can be
used in assessing judgments and will then attempt to indicate the Supreme
Court’s shortcomings.
II. Criteria for Assessing Judgments
A.
Logical Consistency
A judgment, that is the enumeration of a court’s reasons for arriving at a
particular result in a particular case, is primarily an exercise in justification.9
7 It may thus be surprising to note that there is no legal duty cast upon a trial judge to give
reasons for a decision. See Macdonald v. The Queen [1977] 2 S.C.R. 665, (1976) 29 C.C.C.
(2d) 257; R. v. Urie (1977) 38 C.C.C. (2d) 33 (Alta S.C., App. Div.). The fact that these were
criminal cases may or may not be relevant. It has been held in a civil case that the failure of a
trial judge to give reasons may, in the circumstances of the case, amount to a reversible error.
See Koschman v. Hay (1977) 17 O.R. (2d) 557, (1977) 80 D.L.R. (3d) 766 (C.A.).
‘See Abel, book review, (1974) 24 U.T.L.J. 318.
9From this perspective the concerns expressed by White, The Evolution of Reasoned
Elaboration (1973) 59 Va L. Rev. 279 are not germane. The point is not to question what basis
a court seeks to employ in justifying its decision, but to insist that, whatever basis is chosen, the
justification be articulated in a convincing and intelligible fashion.
McGILL LAW JOURNAL
[Vol. 28
Its purpose is to persuade the reader that the result reached is both doctrinally
sound and socially desirable. In order to achieve this purpose, a judgment
must be systematically constructed and intellectually compelling. The failure
of the Supreme Court of Canada on these two grounds is evident. Anyone
familiar with our legal system can recall favourite examples. The majority
judgment of Ritchie J. in Lavell 10 is mine. The judgment is, viewed simply as
an attempt at logical exposition, incomprehensible.II It must be repeated that
this is not a matter of agreeing or disagreeing with the result reached. It is a
matter of finding the reasons advanced to justify the result unintelligible,
fatuous, or, simply, unconvincing. It is a matter of being confronted with
reasoning which would not persuade a child. Consider these additional
examples. In Reference re Alberta Statutes, Cannon J. sought to show why
the Social Credit government of Alberta found it necessary to attempt to
control the press:
It seems obvious that this kind of credit [i.e. Social Credit] cannot succeed unless
everyone should be induced to believe in it and help it along. The word “credit” comes
from the Latin: credere, to believe. It is, therefore, essential to control the sources of
information of the people of Alberta.”2
In Re Nova Scotia Board of Censors and McNeil, 3 a case involving the
validity of a provincial censorship law, Mr Justice Ritchie essayed a novel
foray into syllogistic reasoning. Thus he argued that, while the law in
question addressed itself to public morality, there was no necessary congru-
ence between morality and the criminal law. Therefore, he concluded, the law
in question was not a criminal law.
B.
Literary Quality
A judgment persuades, or should persuade, in addition, through its
literary qualities. And yet here again one is on shaky ground. There are no
accepted criteria of legal literary criticism. 4 But one looks almost instinctive-
l[1974] S.C.R. 1349, (1974) 38 D.L.R. (3d) 481.
“This is not solely a personal opinion. It is shared by many first year law classes with whom
I have sought unsuccessfully to unravel the decisions and by Professor Tamopolsky, The
Supreme Court and the Canadian Bill of Rights (1975) 53 Can. Bar Rev. 649, 667.
,2 [1938] S.C.R. 100, 144, [1938]2 D.L.R. 81. See the useful comments by Tollefson in 0.
Lang, Contemporary Problems ofPublicLaw in Canada (1968) 49. Tollefson, at 59, describes
the passage quoted from the judgment of Cannon J. as “this dubious etymological approach”.
13 [1978] 2 S.C.R. 662, 692-3, (1978) 84 D.L.R. (3d) 1.
‘MAs a not very successful attempt in this direction, see J. White, The Legal Imagination
(1973), ch. v. See also Twining, “The Concept of a National Legal Literature” in Twining &
Uglow, supra, note 4, 7 and 10. Remember also Karl Llewellyn’s famous distinction between
the Formal Style and the Grand Style. While I do not wish to argue the merits of one approach or
the other, I do believe that an excessive attachment to formalism explains many of the literary
clinkers dropped by the Supreme Court of Canada. See K. Llewellyn, The Common Law
Tradition: Deciding Appeals (1960).
1982]
CRITICISING THE JUDGES
ly for certain characteristics in judgments –
precision, clarity, elegance of
expression being among the more obvious. But how often does one find such
qualities in Canadian judicial writing? One thinks of the grace and felicity
which characterize the opinions of, to name but a few, Lord Mansfield, Lord
Atkin, Lord Reid, and Lord Denning. One is hard-pressed to think of Cana-
dian judgments that are memorable as literature. Mr Justice Mackay’s judg-
ment in Re Drummond Wren 15 glitters in an otherwise tedious landscape.
Another exception can be found in the pronouncements of Mr Justice Dickson
of the Supreme Court of Canada who has spoken out on the need for
improvement in judgment writing. 6 He is also a fine judicial writer. His
recent judgment in Re Ontario Residential Tenancies Act, 197911 is a model.
His opinion of judicial writing in Canada is that while much is “of high
quality, many of the judgments one reads show a strong tendency to be
wordy, unclear, and dull”. 8 Others have used harsher words. In 1960 J.G.
Wetter referred to Canadian judicial writing as “an exercise in legal
barbarism”. 9
I shall quote but two reasonably typical passages from two of Canada’s
most respected jurists, both of whom write abysmally. First, Mr Justice Rand
in Saumur v. City of Quibec:
Strictly speaking, civil rights arise from positive law; but freedom of speech, religion and
the inviolability of the person, are original freedoms which are at once the necessary
attributes and modes of self-expression of human beings and the primary conditions of
their community life within a legal order. It is in the circumscription of these liberties by
the creation of civil rights in persons who may be injured by their exercise, and by the
sanctions of public law, that the positive law operates. What we realise is the residue
inside that periphery. 2
15[1945] O.R. 778 (Chambers).
“6See especially his address, supra, note 3. The initiative of the Canadian Institute for the
Administration of Justice in this regard is very much to be welcomed. It is interesting that of the
seven people who made up the faculty for this programme, six were from United States
universities. Two recent Canadian publications contain advice and admonition for judicial
writers: J. Wilson, A Book for Judges (1980) is generally pedestrian and discusses judicial
writing, at 79-84, in a fashion which does not provide much of an example; R. Komar, Reasons
for Judgment: A Handbook for Judges and Other Judicial Officers (1980) is both livelier and
more critical, especially at 28-47. Wildsmith has criticised Komar’s book on a number of
grounds and, while many of the criticisms are apposite, Wildsmith’s own writing is marred by
so many infelicities as to call into question his standing as a critic. People who are capable of
using words like “subsectionizing” should not throw stones. See Wildsmith’s review of
Komar’s book in (1981) 59 Can. Bar Rev. 451, 455.
7[1981] 1 S.C.R. 714, (1981) 123 D.L.R. (3d) 554.
“Dickson, supra, note 3.
“9He went on to say: “Its fundamental faults are: intellectual confusion, lack of discipline in
literary composition, as well as length and thoroughness exceeding the requirements of each
case.” J. Wetter, The Styles ofAppellate Judicial Opinions (1961) 313 quoted in Komar, supra,
note 16, 29.
-‘[1953] 2 S.C.R. 299, 329, (1953) 106 C.C.C. 289.
REVUE DE DROIT DE McGILL
[Vol. 28
And, second, Mr Justice Laskin (as he then was) in R. v. Burnshine:
The process of construction must be related to prescriptions and standards under the
Canadian Bill of Rights which, apart from the statute, might or might not be seen as
relevant matters, and, even if seen as relevant, would lack the definition that they have as
statutory directives.2
1
C.
Responsiveness to Social Issues
Among the heavy responsibilities cast upon a final appellate court is that
of producing judgments which respond to contemporary social and political
concerns. The record of the Supreme Court of Canada is most dismal in this
regard. It is not, at the risk of labouring the point, a question whether one
agrees or disagrees with the responses adopted. It is simply that the resonses
are incoherent and unintelligible.
One central concern should lie in defining the basic rights and freedoms
of Canadians. What are the respective rights and duties of the citizen and the
State? Reading the recent pronouncements of the Supreme Court of Canada, it
is impossible to say. It would, in my view, be difficult to study the judgments
in Dupond v. City of Montrdal,l Re Nova Scotia Board of Censors and
McNeil,’ and A.-G. Qudbec v. Kellogg’s Co. 24 and then to state with any
degree of certainty or assurance, first, the respective jurisdictions of Ottawa
and the provinces to encroach upon freedom of expression and, secondly, the
corresponding rights, if any, of Canadians.”
A second concern is the role of women in Canadian society. Throughout
most of this century, women have demanded that they cease to be subordinate
to men. With painful slowness, the institutions, the ideas, and the formal rules
2. [1975] 1 S.C.R. 693, 713-4, (1974) 44 D.L.R. (3d) 584.
-[1978l 2 S.C.R. 770, (1978) 84 D.L.R. (3d) 420.
2 Supra, note 13.
z4[1978] 2 S.C.R. 211, (1978) 83 D.L.R. (3d) 314.
2 5The failure of the Supreme Court to concern itself with the protection of the citizen against
the State has not gone unnoticed. See Tamopolsky, supra, note 11 and Grant, The Supreme
Court of Canada and the Police: 1970-76 (1977-78) 20 Crim. L.Q. 152, 161 where the author
remarked of one decision that “a totalitarian State could ask for little better”. See also Whyte,
CivilLiberties and the Courts (1976) 83 Queen’s Q. 655 and Russell, supra, note 3, 12. Even
judges have been known to comment upon the Supreme Court’s seeming lack of interest in the
protection of individual rights. Thus, in delivering his dissenting judgment in R. v. Wray
[1971] S.C.R. 272, 304, Spence J. suggested that the decision reached by the majority would
bring the administration ofjustice into disrepute. Mr Justice Spence has no doubt derived some
satisfaction from the fact that the standard enunciated in his dissenting judgment has now
become s. 24(2) of the Canadian Charter ofRights and Freedoms, Part I, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.).
1982]
CRITICISING THE JUDGES
of the legal system have begun to change in response to this demand. The
Supreme Court of Canada has remained, in large measure, studiously una-
ware that anything was happening. In 1928, the Court decided 26 that women
were not “persons” within the meaning of s. 24 of the Constitution Act,
1867.27 In the 1970’s, similar decisions came thick and fast. Lavell I saw the
court uphold explicit sexual discrimination in the Indian Act.’ In Murdoch v.
Murdoch 10 the Court disregarded a lifetime of work by a woman. The labour
that a wife had contributed to her husband’s property would not entitle her to
claim a share of that property on the dissolution of their marriage. 31 And
finally there was Bliss.32 Here the Court ruled that a section of the Unemploy-
mentInsuranceAct, 1971 3 which created special rules concerning the entitle-
ment of pregnant women did not amount to a denial of equality before the law
by reason of sex.”4 In giving judgment, Ritchie J. adopted these words
pronounced originally by Pratte J. in the Federal Court of Appeal:
If section 46 treats unemployed pregnant women differently from other unemployed
persons, be they male or female, it is, it seems to me, because they are pregnant and not
because they are women.3
It is a sad story. There is little reason to imagine that the appointment, in early
1982, of the first woman member of the Court, as welcome as it undoubtedly
is, will lead overnight to a change in attitude. 36
Finally, it is, I believe, common ground among students of Canadian
constitutional law, regardless of where their jurisdictional sympathies lie, that
the Supreme Court of Canada has made a mess of its responsibilities in
16Reference re Meaning of the Word “Persons” in Section 24 of the British North America
Act, 1867 [1928] S.C.R. 276. Fortunately, the Judicial Committee of the Privy Council was
still Canada’s final court of appeal. SeeEdwards v.A.-G. Canada [1930] A.C. 124, [1929] All
E.R. Rep. 571 (P.C.).
” 30 & 31 Vict., c. 3 (U.K.).
“Supra, note 10. I am aware that the majority of the judges stated their reasons differently,
but as noted above, I find the judgment of Ritchie J. incomprehensible and, therefore, utterly
unpersuasive.
“R.S.C. 1970, c. 1-6.
3[1975] 1 S.C.R. 423, (1974) 41 D.L.R. (3d) 367.
“1 To be fair, I must mention that the Court did take a different approach in Pettkus v. Becker
[1980] 2 S.C.R. 834, (1980) 117 D.L.R. (3d) 257, where the majority found a constructive
trust in favour of a common law wife which entitled her to one-half of the value of the assets in
question.
“Bliss v. A.-G. Canada [1979] 1 S.C.R. 183, (1979) 92 D.L.R. 417.
“S.C. 1970-71-72, c. 48.
“Which is the standard laid down in s. 1(b) of the Canadian Bill of Rights, R.S.C. 1970,
Appendix III.
“‘A.-G. Canada v. Bliss [1978] 1 F.C. 208, 213, (1977) 77 D.L.R. (3d) 609 (C.A.).
“See generally Anderson, The Supreme Court and Women’s Rights (1980) 1 Supreme Court
L.R. 457.
McGILL LAW JOURNAL
[Vol. 28
defining and shaping Canadian federalism. The emergence of the federal-
provincial conference as the key institution of Canadian federalism expresses
a long-standing lack of confidence in the judiciary on the part of Canadian
politicians.
The Judicial Committee of the Privy Council was rejected because of its
striking inability to confront the pressing questions of Canadian life. The
Supreme Court of Canada embarked on its new role to the accompaniment of
optimism and adulation.37 Thirty years later the deficiencies of the Court had
become obvious. As Dale Gibson put it: “[T]he Supreme Court of Canada has
failed dismally to live up to expectations.” 38
I have not proven that the Supreme Court of Canada, over the years, has
been deficient. To do so empirically would be impossible. The strongest
evidence is anecdotal and the case can be made only by inference.
Ill. A Matter of Serious Public Concern
The state of the judiciary in Canada should be a matter of serious public i
concern. But this is not the case. One reason, obviously, is that most people
don’t care what happens in the legal system. Conceding this however, a
major reason must be that there has not been sustained, forthright criticism of
the judiciary either on the part of the legal profession or in the mass media.
‘ Such criticism as one finds in law journals is restrained and polite: timid,
an uncharitable person might say. The first critical monograph analysing the
work of the Supreme Court of Canada did not appear until 1974.39 The author
of this work, Paul Weiler, noted accurately that “Canadian judges and
lawyers are not used to systematic criticism of a court’s performance”.4
Weiler’s book, like the handful of academic articles which raise criticisms,
avoids singling out individual judges and tends towards the abstract. 4’
37See, e.g., Laskin, The Supreme Court of Canada: A Final Court of and for Canadians
(1951) 29 Can. Bar Rev. 1038.
“Gibson, book review, (1974) 6 Man. L.J. 215, 215. An editorial, Whither the Supreme
Court of Canada? (1973) 21 Chitty’s L.J. 356 expresses both a wistful sense of disappointment
and an injured national pride over the performance of the Supreme Court of Canada.
ix.
39 P. Weiler, In the Last Resort [.1 A Critical Study of the Supreme Court of Canada (1974).
‘Ibid.,
4 See, e.g., Abel, supra, note 8; Tamopolsky, supra, note 11; Gibson, supra, note 38;
Whither the Supreme Court of Canada?, supra, note 38; Gibson, -And One Step Backvard:
The Supreme Court and Constitutional Law in the Sixties (1975) 53 Can. Bar Rev. 621;
Conner, Images of the Court (1979) 3 Prov. Judges J. 11; Kroll, Should There be a Right to
Challenge Judges? (1977) 35 The Advocate 411; and Brett, Reflections on the Canadian Bill
of Rights (1968-9) 7 Alta L. Rev. 294. Axworthy, “Are Judges Competent?” in L. Trakman,
1982]
CRITICISING THE JUDGES
Stories of any kind about the judiciary are rare in the mass media. There
has been little critical writing about the courts in the popular press, although
the few examples that exist are sharp and forthright. The strongest piece was
written by Eleanor Wachtel, appeared in Chatelaine in March 1978 and was
entitled, The 10 Lousiest Judgments of the Seventies.” A two-part series in
Maclean’s magazine in 1959 argued that judges are appointed largely on the
basis of loyalty to political parties and discussed some of the prejudices that
appointees bring to the bench with them.43 A critical report on the criminal
justice system by Jane Becker, entitled The Lottery in Our Courts, appeared
in Maclean’s in February 1962.” Alan Borovoy argued in Canadian Maga-
zine in October 1977 that Canadian judges used the law of contempt of court
to stifle criticism. 4 A four-part feature series by Ellie Tesher in the Toronto
Star in 1982 involved deeper probing into the legal system than one usually
encounters in the daily press. 46
One is hesitant to claim that one’s research is exhaustive, but for
systematic, critical writing about the courts in the English-Canadian popular
press, that seems to be it. Certainly there have been many stories in magazines
and newspapers, primarily in the editorial pages, which comment on particu-
lar events in a critical way,47 but, like much journalism in Canada, they are
episodic and related only to their specific facts. Little attempt is made to
subsume the events in question within any broader analysis. As an illustration
ed., Professional Competence and the Law (1981) 112 is an excellent example of academic
timidity. As an exception to the general approach, see Franks & Kenner, A Proposalfor a
Saner Judiciary (1977) 1 Legal Med. Q. 264. In this unusual little article, the authors argue the
case for compulsory sanity tests for prospective judges. In its first few issues, the Supreme
Court Law Review has been surprisingly forthright. See, e.g., Berger, The Supreme Court and
Fundamental Freedoms: The Renunciation of the Legacy of Mr. Justice Rand (1980) 1
Supreme Court L.R. 460.
42The article began:”Justice in the courts? That depends whether you’re male or female.
Down through the years both the lawmakers and judges have revealed themselves to be biased,
bigoted, and sometimes downright contemptuous when it comes to dealing with women.”
Chatelaine (March 1978) 56.
43Katz,Do Our Courts Dispense True Justice?, Maclean’s (1 August 1959) 13, (15 August
1959) 18.
4 MacLean’s (24 February 1962) 9.
45To Judge a Judge, Canadian Magazine (29 October 1977) 30.
4’Justice in the 1980s, Toronto Star (8 February 1982) A-i, (9 February 1982) A-i, (10
February 1982) A-I, (11 February 1982) A-1.
47See, e.g., the editorial, A Yearfora Life which referred to “the poor, misguided judge” and
concluded with the question: “Where is the justice?” in The [Toronto] Globe and Mail (24 June
1981) 6. In a similar vein, Pierre Berton wrote of one Manitoba Court of Appeal case
concerning door to door salesmen: “This is justice?”, Maclean’s (9 February 1963) 48. In
reviewing a book about the Stephen Truscott case, Kildare Dobbs noted that the book was
intended to show clearly “that the Truscott trial was a solemn farce”. Saturday Night (May
1966) 11.
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of this phenomenon, one could point to editorials and news stories which
allege that the courts are “soft on criminals”. Such claims are often made
where the offence in question involves children. Thus, in London, Ontario in
late 1980 two men who had been convicted, in separate proceedings, of
sexual offences involving children were awarded what many people viewed
as lenient punishments. A considerable public outcry ensued. There were
meetings and petitions. The London Free Press called one sentence “grossly
inadequate”. In the event, the sentences were appealed by the Crown. In both
cases the terms of imprisonment awarded at trial were substantially enhanced.
No one was cited for contempt.48
Politicians, and public figures generally, have been loath to give voice to
views critical of the judges. In March 1971, Joe Borowski, a Minister in the
Manitoba Government, criticised a magistrate in that province. In December
1975, Andr6 Ouellet, then federal Minister of Consumer and Corporate
Affairs, questioned publicly the sanity of a Qu6bec Superior Court judge.
Both these individuals were convicted of contempt and their cases will be
discussed more fully below. Perhaps the most spectacular public criticism of a
judge in recent years came in May 1972 from David Lewis, then leader of the
federal New Democratic Party. Referring in a speech to the behaviour of a
judge in Qu6bec who had sentenced three labour leaders to jail as “reckless
ignorance”, Lewis continued: “any judge who has the stupidity to impose the
savage sentence of one year in jail on the three union leaders has no right to be
on the bench”. 9 Despite a public suggestion to this effect from a legal
academic, 5 Lewis was not charged with contempt. Again, the point to be
noted is the virtual lack of critical comment emanating from political figures.
Colin Wright summed the matter up accurately and succinctly: “Canadians
appear generally content to keep their criticism of the courts almost as muted
and ponderous as the judicial process itself.””‘
The important question is – why? Why are Canadians, whether they be
politicians or journalists or legal academics or lawyers, so reluctant to state
publicly what many of them admit privately? How do we explain this general-
ised and long-standing reluctance to criticise the judges?
,8 See the London Free Press (27 January 1981) A-6, (10 February 1981) D-l, (14 February
1981) A-1 and A-7. See also R. v. Dalke (1981) 59 C.C.C. (2d) 477 (B.C.S.C.).
‘9Quoted in List, Lewis blames judge’s ‘reckless ignorance’for Quebec labour chaos, The
[Toronto] Globe and Mail (13 May 1972) 1.
‘ See Hunter, letter to the editor, The [Toronto] Globe and Mail (17 May 1972) 6. Hunter’s
letter was, in fact, critical of the existence of the offence of contempt of court, calling it “an
anachronism”. His argument was that since Borowski had been charged, so should Lewis.
51Wright, “Issues of Law and Public Policy” in Royal Commission on Newspapers,
Newspapers and the Law (1981) 46, 60 (Research Studies, Vol. 11I).
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CRITICISING THE JUDGES
IV. Law and Ideology
In this section I will attempt to answer the question posed above. It
would be easy to assert that the absence of sustained criticism of our judiciary
is due solely to the way Canadian courts apply the law of contempt. Contempt
charges are intimidating. But the law of contempt provides only a partial
explanation for our quiescence. The public, media and academic timidity is
explained primarily by the place which courts hold in our ideological system.
I will discuss the law of contempt in Canada and then I will investigate the
underlying ideological question.
A.
Contempt of Court
Contempt of court is an element of Canadian law which is both unclear
and anomalous. It is said that there is a distinction between “civil” contempt
and “criminal” contempt, although no one appears able to state the distinction
precisely and it is conceded generally that the distinction is of little practical
significance.52 Contempt is the one criminal offence in Canada that is not
given a statutory definition? 3 For this reason, there is no statutory maximum
penalty, the maximum punishment awardable being, arguably, at the discre-
tion of the trial judge5 4 Where an alleged contempt is directed at a particular
superior court judge, there is nothing in law to prevent that judge from
presiding over the determination of the accused contemnor’s guilt.
Because contempt is not a statutory offence, a special, non-statutory
procedure is normally followed in contempt prosecutions. The procedure is
called summary process. It denies many of the rights traditionally associated
with criminal prosecutions. 55 The presumption of innocence is inapplicable.
The accused contemnor is ordered to show cause why he should not be
committed for contempt; that is, the burden of proof shifts to the defendant.
Further, the standard of proof required is unclear, 56 there is never an opportun-
ity for trial by jury, and the accused can be forced to testify. In one recent case
some judicial concern was expressed about such procedures, 7 but subsequent
2 See Borrie, “The Judge and Public: The Law of Contempt” in A. Linden, ed., The
Canadian Judiciary (1976) 207, 221; Hugessen, Comment in Linden, 224,229; A. Mewett &
M. Manning, CriminalLaw (1978) 408; and S. Robertson, Courts and the Media (1981) 20-1.
5’3See Criminal Code, R.S.C. 1970, c. C-34, s. 8.
54Hugessen, supra, note 52, 299.
55See Robertson, supra, note 52, 88-92. The procedure is discussed in detail in R.
v. Edmonton Sun Publishing Ltd (1982) 62 C.C.C. (2d) 318 (Alta Q.B.).
5 1InEdmonton Sun, ibid., 324 the Court did require proof “beyond a reasonable doubt” that
the contempt “tends ‘to obstruct or defeat the administration of justice’ or that it shows
‘disrespect of the court or its process’ or that it tends ‘to bring the court into disrespect’ “.
– Bergeron v. La Socidtd de Publication Merlin Ltife (1970) 14 C.R.N.S. 52 (Qu6. C.A.).
McGILL LAW JOURNAL
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decisions have rationalized these derogations from fundamental rights. 8
Mewett and Manning have essayed the extraordinary argument that shifting
the burden of proof to the accused is acceptable because the accused, if
convicted, can appeal against conviction or sentence.59 The Law Reform
Commission of Canada has made some half-hearted and equivocal recom-
mendations for reform,w but none of these has been implemented so far.
1.
Scandalising the Court
Having established a general context, I will turn now to an analysis of a
specific aspect or branch of the law of contempt of court –
scandalising the
court. Scandalising the court is that portion of the criminal law which is
brought to bear to punish individuals who say nasty things about courts or
judges. This form of contempt is now unknown in England; there has not, it
appears, been a successful prosecution for fifty years. 6 It is, unfortunately,
alive and well in Canada.
The law of contempt generally is supposed to protect against interference
with the due administration of justice. 62 Scandalising the court seeks to
sanction, in the classic definition, “any act done or writing published calcu-
lated to bring a court or a judge of the court into contempt or lower his
authority”. 6 Such statements may involve either (a) scurrilous abuse of a
judge or court, or (b) imputing improper motives to a judge or court. 8 We
5″McKeown v. The Queen [1971] S.C.R. 446, (1971) 16 D.L.R. (3d) 390; R. v. Hill (1975)
18 C.C.C. (2d) 458 (B.C.S.C.). See also Cavenaugh, Civil Liberties and the Criminal
Contempt Power (1976-77) 19 Crim. L.Q. 349; Watkins, The Enforcement of Conformity to
Law through Contempt Proceedings (1967) 5 Osgoode Hall L.J. 125.
59Mewett & Manning, supra, note 52,411. See Criminal Code, R.S.C. 1970, c. C-34, s. 9.
‘See Law Reform Commission of Canada, Contempt of Court: Offences Against the
Administration of Justice (1977) 59-61.
61There is some disagreement among the United Kingdom authorities as to when the last
successful prosecution occurred. C. Miller argues in Contempt of Court (1976) 197 that there
has not been a committal “in the post war years”. G. Borrie and N. Lowe state in The Law of
Contempt (1973) 173 that the last case was in 1931. The Phillimore Committee on Contempt of
Court chose a case decided in 1930 as the last successful application in the United Kingdom.
Report of the Committee on Contempt of Court (1974) Cmnd 5794, 68 [hereinafter Phillimore
Report]. While referring to scandalising the court as “archaic”, the Phillimore Committee
recommended that an offence similar to it, although much more carefully and narrowly
defined, be retained. Phillimore Report, 68-71.
‘See A.-G. v. Leveller Magazine Ltd [1979] A.C. 440, [1979] 1 All E.R. 745 (H.L.).
1R. v. Gray [1900] 2 Q.B. 36, 40, [1900-3] All E.R. Rep. 59.
‘See Phillimore Report, supra, note 61, 68. Robertson is of the view that “imputing
improper motives” is not a category of “scandalising the court”, but a separate branch or form
of contempt, supra, note 52, 59-74.
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CRITICISING THE JUDGES
have on the highest judicial authority that scandalising the court is not
intended to prevent criticism of judges or the courts. Thus Lord Atkin stated in
Ambard v. A.-G. Trinidad and Tobago:
But whether the authority and position of an individual judge, or the due administration of
justice, is concerned, no wrong is committed by any member of the public who exercises
the ordinary right of criticising, in good faith, in private or public, the public act done in
the seat ofjustice. The path of criticism is a public way: the wrong headed are permitted to
err therein: provided that members of the public abstain from imputing improper motives
to those taking part in the administration of justice, and are genuinely exercising a right of
criticism, and not acting in malice or attempting to impair the administration of justice,
they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the
scrutiny and respectful, even though outspoken, comments of ordinary men.”
What I propose to do now is to look at the Canadian cases, sort them, more or
less, into the two recognised categories of scandalising the court, assess the
results of the decisions, and note some technical problems.
Sa. Scurrilous Abuse
It is not easy to define scurrilous abuse. Canadians have been found
guilty under this rubric for: describing the judge and jury at a murder trial as
being themselves murderers and, to boot, torturers;6 saying that a judicial
decision was “silly” and could not have been made by a sane judge;67 calling a
court a “mockery of justice”;61 writing of a particular proceeding that “the
whole thing stinks from the word go”; 69 accusing a court of “intimidation” and
“iron curtain” tactics;7″ and vowing with respect to a particular magistrate, “if
that bastard hears the case I will see to it that he is defrocked and debarred” .71
The people who made these statements were: a columnist in a major urban
daily newspaper; a federal cabinet minister; the editor of a university student
newspaper; a municipal politician; a reporter for an urban daily; and a provin-
cial cabinet minister. On the other hand, a columnist for a large urban daily
who described a coroner’s inquest as “one of the worst examples of idiocy by
public officials that I’ve ever seen” was acquitted. 72 The cases do not suggest
any clear standard for determining what is or is not scurrilous abuse. Courts
have convicted on the basis of language which they found “vulgar, abusive,
[ 1936] A.C. 322, 335, [1936] 1 All E.R. 704 (P.C.). The reader is reminded of my earlier
remarks about the respective literary abilities of English and Canadian judges.
‘Re Nicol [1954] 3 D.L.R. 690 (B.C.S.C.).
610uellet v. The Queen [1976] C.A. 788, (1977) 72 D.L.R. (3d) 95.
61R. v. Murphy (1969) 1 N.B.R. (2d) 298, (1969) 4 D.L.R. (3d) 289 (S.C.).
‘Re Landers (1980) 31 N.B.R. (2d) 113 (Q.B.).
70R. v. Western Printing and Publishing Ltd (1955) 111 C.C.C. 122 (Nfld S.C.).
7’Anger v. Borowski [1971] 3 W.W.R. 434 (Man. Q.B.).
1R. v. Fotheringham and Sun Publishing Co. (1970) 11 D.L.R. (3d) 353 (B.C.S.C.).
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[Vol. 28
and threatening” 73 or which exceeded the “bounds of temperate and fair
criticism”. 74 The New Brunswick Court of Queen’s Bench recently advanced
the extraordinary assertion that criticism which was “ungentlemanly” 11 was
contemptuous. In order to amount to scurrilous abuse it appears that the
statement in question must identify a particular judge or court. Beyond that,
the crucial factor seems to be the literary taste of the presiding judge. If the
judge finds the words used excessive then there will likely be a conviction. 76
b.
Imputing Improper Motives
Imputing improper motives is a concept that should be susceptible to
more precise definition. What appears to be involved here is an allegation of
partiality, bias or prejudice.n The cause or origin of the alleged improper
motive is irrelevant. The allegation may be directed at the judiciary as a
whole,78 at a particular court or group of judges, 79 at a specific, named judge,
or at ajury.10 Contempts of this nature are viewed with considerable disfavour
by the Canadian judiciary. Such statements are seen as undermining the
reputation for integrity and fairness upon which, it is claimed, the independ-
ence of the judiciary is based. The extreme sensitivity of the judges in such
matters is illustrated in Re Duncan.8 Lewis Duncan was a lawyer, a Q.C. in
fact, arguing an appeal before the Supreme Court of Canada in 1957. Duncan
suspected that one member of the Court was prejudiced against him. It was
Duncan’s belief that this prejudice originated with a personal incident thirty
years earlier and that it had been demonstrated in two previous cases before
73Anger v. Borowski, supra, note 71, 446.
74R. v. Western Printing and Publishing Ltd, supra, note 70, 124.
75Re Landers, supra, note 69, 116. In R. v. Edmonton Sun Publishing Ltd, supra, note 55,
326, however, the Court held that the mere fact that material was “in very bad taste” did not
render it contemptuous.
76Although it is not strictly on point, one should also note the Georgia Straight case. In
1969, an underground newspaper was convicted of criminal libel for having awarded a
magistrate the “Pontius Pilate Certificate of Justice”. R. v. Georgia Straight Publishing Ltd
(1969) 4 D.L.R. (3d) 383 (B.C. Co. Ct).
I See, e.g., Re Nicol, supra, note 66; R. v. Western Printing and Publishing Ltd, supra,
note 70; Re Duncan [1958] S.C.R. 41, (1958) 11 D.L.R. (2d) 616;R. v. Murphy, supra, note
68; Anger v. Borowski, supra, note 71; A.-G. Canada v. Alexander (1976) 65 D.L.R. (3d)
608, [1975] 6 W.W.R. 257 (N.W.T.S.C.); Re Smallwood (1980) 25 Nfld and P.E.I.R. 198
(Nfld S.C.); Re Landers, supra, note 69; R. v. Glanzer [1963] 2 O.R. 30 (H.C.).
“See R. v. Murphy, supra, note 68.
‘See Re Smallwood, supra, note 77; R. v. Glanzer, supra, note 77.
wSee Re Duncan, supra, note 77; Anger v. Borowski, supra, Aote 71; A.-G. Canada v.
Alexander, supra, note 77; Re Landers, supra, note 69; R. v. Western Printing and Publishing
Ltd, supra, note 70.
“Ibid.
1982]
CRITICISING THE JUDGES
the Supreme Court of Canada in which he had been involved. There was some
dispute as to what Duncan actually said to the court, but the essence was that
he did not want Locke J. to be a member of the panel hearing his client’s
appeal and that he did not believe the administration of justice would be
served if Locke J. remained on the panel. Accordingly, he requested that
Locke J. withdraw. Kerwin C.J.C., speaking for himself and six other judges
(not including Locke J.) had no hesitation in holding that Duncan’s remarks
were contemptuous. Duncan was ordered to pay a fine of $2,000 or, failing
that, to serve sixty days in jail. This fine was one of the largest ever imposed in
a Canadian contempt case.”
c.
General Considerations
Some general questions remain to be answered with respect to scandalis-
ing the court. First, is truth a defence? This issue is unlikely to arise where the
statements in question amount to scurrilous abuse, since truth or falsity has
little to do with a statement being abusive or not. However, where improper
motives on the part of a judge have been suggested, can the accused contem-
nor seek to prove the truth of such allegations? If I have written that judge X
accepts bribes, can I escape punishment by proving that judge X is on the
take? The answer is an equivocal no. There is no Canadian case directly on
point, 3 but all the commentators, having made appropriate disclaimers, agree
that truth is not a defence. ‘ Secondly, is mens rea required? The question
should be rephrased since, it will be remembered, the burden of proof is on the
accused. Can the accused escape liability by establishing the absence of mens
rea, that is to say, by showing that the statement in question was not intended
to interfere with the due administration of justice? The answer here is clear. It
is –
no. 5
“For interesting background, see Honsberger, Lewis Duncan, Q.C. (1977) 11 L.S.U.C.
Gazette .25. In R. v. Flamand (1981) 57 C.C.C. (2d) 366, 367-8 (Qu6. C.A.), an accused
person in a criminal proceeding was held to be in contempt for saying these words to the trial
judge: “I no longer have any confidence in you, your Honour, and you know why. You are not
fit to try this case because your own son is a member of the Provincial Police.”
Although Crown counsel argued in R. v. Glanzer, supra, note 77, that the truth or falsity of
the statements at issue was irrelevant. Mayrand J.A., the one member of the Qudbec Court of
Appeal who dissented in R. v. Flamand, ibid., 368, suggested that truth might be a defence.
“See, e.g., Miller, supra, note 61, 192-4; Borrie & Lowe, supra, note 61, 165; Borrie,
supra, note 52, 213; Mazzie, Criminal Contempt: Necessity and Procedure versus Fairness
and Justice (1972) 36 Sask. L. Rev. 295, 308; R. Megarry, A Second Miscellany-at-Law: A
Diversion for Lawyers and Others (1973) 80-1; Phillimore Report, supra, note 61, 68-71
which recommended the creation of a statutory defence of truth and public benefit.
“See, e.g., R. v. LaRose [1965] C.S. 318; R. v. Barker (1980) 20 A.R. 611, (1980) 53
C.C.C. (2d) 322 (C.A.); R. v. Perkins (1980) 51 C.C.C. (2d) 369 (B.C.C.A.). See also
Shifrin, The Law of Constructive Contempt and Freedom of the Press (1966) 14 Chitty’s L.J.
281, 293. In Courts and the Media, supra, note 52, 60-1, Robertson suggests that mens rea
may be required.
McGILL LAW JOURNAL
[Vol. 28
Finally, what is the range of punishment that is awarded in such cases?
The most common punishment is a fine. In 1963, the publisher of The
Division Court Reporter, a periodical which alleged partiality and corruption
on the Division Court bench, was fined $4,000, or about $12,000 in 1982
dollars. This is the largest fine in a reported case.86 In 1969, the writer of an
article in a student newspaper which described the courts as “simply the
instruments of the corporate elite” was sentenced to ten days imprisonment
without the option of paying a fine.Y Occasionally, the contemnor may be
ordered to apologise to the court. This may be imposed either in conjunction
with,88 or independently of, 9 a fine.
2.
Contempt and the Charter
The Canadian Charter ofRights and Freedoms 10 may necessitate certain
changes in the law of contempt. At this stage one can only comment on the
Charter in a highly speculative fashion. I will, therefore, simply note the
issues that might arise. The first is substantive. The Charter purports to
guarantee “fundamental freedoms”, including, in s. 2(b), “freedom of
thought, belief, opinion and expression, including freedom of the press and
other media of communication”. One could argue plausibly that either the law
of contempt generally or, more particularly, the law concerning scandalising
the courts, denies this right and is, therefore, “inconsistent with the provisions
of the Constitution”. As such it should be “of no force or effect”.9’ Unfortu-
nately, the matter is not quite so simple. Section 1 of the Charter provides that
a law which limits or denies any of the rights guaranteed by the Charter may
still be valid, if, first, the limits imposed are “reasonable” and, secondly, if
they “can be demonstrably justified in a free and democratic society”. Since
the application of these standards to the law about criticising the judges will be
determined by the judges themselves, it does not seem likely that the Charter
will lead to substantial changes in the law.
A number of procedural issues may also arise. First, it could be argued
that the Charter prohibits generally the enforcement of non-statutory criminal
offences. Section 1 (g) provides that persons shall not be
16R. v. Glanzer, supra, note 77.
1R. v. Murphy, supra, note 68. For an attempt by a sociologist to compile evidence to
indicate that the courts were viewed as precisely that, see MacDonald, Contempt of Court: An
Unsuccessful Attempt to Use Sociological Evidence (1970) 8 Osgoode Hall L.J. 573.
‘See Ouellet, supra, note 67; Re Duncan, supra, note 77.
‘See Anger v. Borowski, supra, note 71; Re Landers, supra, note 69.
10Part I, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.).
91 Constitution Act, 1982, being Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 52.
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CRITICISING THE JUDGES
found guilty on account of any act or omission unless, at the time of the act or omission, it
constituted an offence under Canadian or international law or was criminal according to
the general principles of law recognized by the community of nations.
Secondly, a case could be made that the summary process used in contempt
prosecutions is rendered invalid. Section 11(c) purports to guarantee that a
person “charged with an offence” cannot be compelled to be a witness against
himself. Section 11(d) appears to transform the traditional presumption of
innocence into a constitutional right enjoyed by accused persons in all crimin-
al cases. Thirdly, the ability of a superior court judge to hear contempt
proceedings involving himself is called into question. Section 11 (d) guaran-
tees a “fair and public hearing by an independent and impartial tribunal”.
Finally, the peson charged with contempt might be able to claim trial by jury
as of right. Section 11(f) creates the right to a jury trial whenever “the
maximum punishment for the offence is imprisonment for five years or a more
severe punishment”. Because of the nature of contempt as a non-statutory
offence, the punishment is at the discretion of the judge, and the maximum
punishment could, as a matter of theory at any rate, be five years or more. It
should be stressed that the general limitation found in s. 1 of the Charter will
also apply with respect to these procedural issues.
3.
Effects of the Law of Contempt
It is evident that the existing law about scandalising the court in Canada
is restrictive. There are legal limits on what may be said about the courts.
Exactly how restrictive the law is, is more difficult to assess. The question has
two aspects. First, as a matter of strict law, what is permissible? In theory, and
as the Supreme Court of British Columbia held recently, one can say anything
one likes about the courts as long as one does so “without abuse” and “without
casting any aspersions on the motives of a judge”. 92 This is, again in theory,
the same standard as is applied in the U.K. The fact that no one has been
convicted in the U.K. for fifty years, while, as we have seen, this has
happened on many occasions in Canada, might suggest that in practice the
standard in Canada is much stricter.93 This suggestion is reinforced if one
looks to the most recent reported case in the U.K., a case in which the Court of
Appeal held that no contempt had been committed. Salmon L.J. stated
confidently: “The authority and reputation of our courts are not so frail that
92R. v. Dalke, supra, note 48, 479-80.
9 See Powe, The Georgia Straight and Freedom of Expression in Canada (1970) 48 Can.
Bar Rev. 410, 436.
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[Vol. 28
their judgments need to be shielded from criticism”.” Secondly, and the
inquiry on this aspect must be even more speculative, to what extent does the
law, as presently applied in Canada, function so as to inhibit criticism of the
courts? My educated guess would be: quite a lot. We may profitably look to an
analogy drawn from the law of libel. In Cherneskey v. Armadale Publishers
Ltd,9S the Supreme Court of Canada delivered a grandly illogical judgment
that confused the law concerning the defence of fair comment in libel actions.
It decided that the defence was not available to a newspaper with respect to
opinions expressed in letters to the editor. This decision had an immediate and
direct effect on the practice of newspapers. Nineteen out of twenty-eight
Ontario newspapers surveyed by the Ontario Press Council reported that they
had changed the way they handled letters to the editor. Many had adopted
procedures which limited the range of letters they would publish. 96
The incident makes it clear that restrictive legal standards do inhibit
public discussion. At the very least, the existing law of contempt imposes a
substantial degree of caution on writers and publishers.97 Canadian journal-
ists, to put it simply, are afraid to write stories which are critical of the
judiciary. They are afraid of contempt proceedings. Enough working journal-
ists have told me this that I must believe it to be true. Still, I am not convinced
that the law on scandalising the courts is sufficiently restrictive to account for
the limited amount of criticism that has been made.
B.
Ideology
Law is both a product of the dominant ideology in society and a form
through which that ideology is given expression.98 The central ideological
postulate of capitalist society is that of the abstract individual adrift in a sea of
1R. v. Commissioner of Police of the Metropolis, ExparteBlackburn (No. 2) [1968] 2 Q.B.
150, 155, [1968] 1 All E.R. 763 (C.A.). On another occasion he said: “I would not have any
contempt. I think the law of libel takes care of anything you might say about a civil case, and if a
judge is going to be affected by what is written or said he is not fit to be a judge.” Phillimore
Report, supra, note 61, 98.
9S[1978] 90 D.L.R. (3d) 321, (1978) 24 N.R. 274 (S.C.C.).
9Ontario Press Council, Annual Report, 1979 (1980) 32-9. Alberta, Manitoba, New
Brunswick, Ontario, the Yukon, and the Northwest Territories have adopted statutory provi-
sions designed to avoid the application of Cherneskey, ibid. See also Ontario Press Council,
Annual Report, 1980 (1981).
9Thus, even though the law in England appears to be more liberal than in Canada, there are
suggestions that the fear of contempt proceedings has inhibited media criticism of the courts in
that country. See S. Shetreet, Judges on Trial (1976) 192-6.
9See the recent statement of this view in C. Sumner, Reading Ideologies (1979). The
relationship between law and ideology is explored in, e.g., E. Genovese, Roll, Jordan, Roll[.]
The World the Slaves Made (1976) 25; Hay, “Property, Authority and the Criminal Law” in D.
1982]
CRITICISING THE JUDGES
other such individuals, each seeking pleasure and avoiding pain. In the legal
system, this postulate becomes the notion of equality before the law. Each
individual is endowed with the rights and duties of the citizen, the formal
equal of all others .99 The judiciary is given primary responsibility for admi-
nistering equality before the law. The instrument through which the law is
applied must both represent itself, and be perceived, as adhering to the
requirement of formal equality. Hence, “justice must not only be done, justice
must be seen to be done”. More precisely, the courts must be seen to be
applying the law equally to all persons. They must be seen to be reaching
decisions solely on the basis of legal considerations. They must be seen to be
independent and impartial.
The legal system, then, bears heavy ideological responsibilities. Its main
actors, in particular the judges, are bound to maintain the predominance of the
ideology which is expressed in the law. I1 Thus, a certain physical distance
must be created between the judges and the rest of society. For example, in
1980 the Ontario Ministry of the Attorney-General spent $104,000 on
limousine services for judges, despite there being no legal authority for such
expenditures. The Ministry justified its action by stating, according to a press
report, that “judges could be put in embarrassing situations if they met jurors,
witnesses or even the accused on public transit”. 11 But this is evidently not
enough. The judges must also be intellectually distanced from society. The
social system as a whole, then, is bound to protect the ideological notions
which infuse the role of the judges, and the judges’ own perceptions of
themselves, against attack. From this perspective, comment which casts
doubt on the ability, integrity, or impartiality of the judiciary becomes by its
nature subversive.
Hay, P. Linebaugh et al., Albion’s Fatal Tree [:] Crime and Society in Eighteenth Century
England (1975) 17; E. Thompson, Whigs and Hunters [:] The Origin of the BlackAct (1976),
especially ch. x. An earlier exploration of the ideological aspects of law is found in T. Arnold,
The Symbols of Government (1935) 128. He observed that “the center of ideals of every
Western government is its judicial system”. Unfortunately, Arnold did not develop a theory of
ideology. As a result, his book is more of a debunking than a critical analysis. By 1960, Arnold
appeared to have shed his earlier heterodox views and was expounding precisely the same
ideological notions he had so vigorously castigated twenty-five years earlier. Thus, he
admonished the Supreme Court of the United States to employ “undiluted reason” in order to
“retain its authority and public appearances”. He warned of the necessity to pursue constantly
the “ideal of the rule of law” in order to have “civilized government”. Professor Hart’s
Theology (1960) 73 Harv. L. Rev. 1298, 1311.
9This point is developed at length in Balbus, Commodity Form andLegal Form: An Essay
on the “Relative Autonomy” of the Law (1977) 11 L. and Soc. Rev. 571.
’10Thus, commented Viscount Simonds in Shaw v. D.P.P. [1962] A.C. 220,267, [1961] 2
.the supreme and fundamental purpose of the law, to conserve not
All E.R. 446 (H.L.): “…
only the safety and order, but also the moral welfare of the state”.
IT’ Speirs, Spending on flowers, limousines queried by Ontario Auditor, The [Toronto]
Globe and Mail (8 December 1981) 5.
McGILL LAW JOURNAL
[Vol. 28
It would, however, be a gross oversimplification to suggest that there is
little criticism of the courts in Canada because the judiciary is determined to
impose its own ideological notions on an unsympathetic society. The domi-
nant ideology in any society is, to a greater or lesser degree, part of the mental
equipment of every member of that society. Certain other members of society
are also given ideological roles to play, and also behave socially so as to
maintain the dominant ideology. Thus, lawyers, academics and journalists,
who are the relevant social actors for present purposes, have their parts to
play. While the judiciary bears primary responsibility for ensuring that justice
is seen to be done, the bar, the academy, and the mass media all play
supporting roles in the great ideological drama ‘l that is the legal system.
Let me add a final qualification. This is not the place to sketch out a full
social theory of ideology. This has been done many times before and does not
need to be done again. It is important, however, to stress that ideology is not a
collection of lies or a confidence trick. It is a real part of the thought process of
real people. Specifically, there are, first, many honest people who sincerely
believe that the courts should be, and are, impartial; and, secondly, by and
large the courts are, given the ideological equipment which judges bring to the
bench, impartial. What I want to do now is to investigate the way in which
these ideologically rooted notions about the role of courts are reflected in
attitudes towards criticism of the courts.
As has been suggested, it is my view that Canadian judges possess an
almost pathological antipathy to scrutiny or criticism from outside. Let us
take as an example the present Chief Justice of Canada. In 1977, the Chief
Justice gave a speech at the annual dinner of the Canadian Press in Toronto. 3
In his speech, the Chief Justice was critical of what he saw as the failure of the
mass media to report adequately on the work of the Supreme Court of Canada.
He suggested the existence of considerable public ignorance about the legal
system and, particularly, about the Supreme Court. He argued that the media
had a duty to inform the public about the legal system. In specific terms he
advocated “more regular, more adequate reporting of [Supreme Court] deci-
sions”. He challenged the mass media: “Cannot the press… do much better
than it has hitherto done?” 104 At the same time, however, he appeared to
“In the course of reviewing Arnold’s The Symbols of Government, supra, note 98, Willis
described the judicial system as a “miracle play”. (1936) 14 Can. Bar Rev. 278, 279.
” Address by Laskin C.J.C., Public Perceptions of the Supreme Court of Canada, Cana-
dian Press Annual Dinner (20 April 1977).
“‘Ibid., Laskin C.J.C. made the same point in a speech given to the Atlantic Provinces Law
Conference shortly after his appointment as Chief Justice: “What is missing in the press
coverage, or what is done too infrequently, is in-depth assessment”. The Supreme Court of
Canada, reprinted in (1974) 8 L.S.U.C. Gazette 248, 253-4.
19821
CRITICISING THE JUDGES
suggest that while the media should inform, they should be reluctant to
criticise. He stated that “there has hitherto been a well-understood convention
that no attack should be made on the Courts, on the Supreme Court from a
political perspective” and warned against “impugning judicial integrity”.10 5
A year later the Chief Justice returned to these themes in a speech given
to a seminar organised in Ottawa by the Canadian Daily Newspaper Pub-
lishers Association.’10 Laskin C.J.C. referred to the view, expressed in certain
quarters, that the Supreme Court tended to favour Ottawa over the provinces
in constitutional litigation. He replied that “[t]he allegation is reckless in its
implication that we have considerable freedom to give voice to our personal
predilections, and thus to political preferences”.’ He said of the notion that
the judiciary should, or does, represent particular institutions or interests in
society: “I know of no better way to subvert our judicial system”.18 The
courts, he argued, welcomed criticism of their decisions, so long as it did not
put in issue the integrity of the judges. He concluded that “aspersions on the
Supreme Court” are “a disservice to one of our fundamental values, the rule of
law, without which we cannot maintain our free society”.’9
Laskin C.J.C. returned to these concerns in 1982. In an address to the
Annual Meeting of the Canadian Bar Association, he vigorously attacked the
press over its reporting of the Canadian Judicial Council’s inquiry into the
behaviour of Mr Justice Berger of the Supreme Court of British Columbia.
Many journalists had been critical of the stand which the Council took on the
question of judges speaking out on public issues. This did not please the Chief
Justice. Three times during his speech, he described the press as “ignorant”.
He accused them of “mischief-making” and claimed that they had not acted
responsibly.” 0
In these examples, the Chief Justice has gone to the heart of the question
this essay seeks to investigate. I do not know whether Bora Laskin is
personally more or less sensitive to criticism than other human beings. The
question is utterly irrelevant to the present analysis. The individual who gave
these speeches did so not as Bora Laskin, but as Chief Justice of Canada. He
1051bid.
“‘Judicial Integrity and the Supreme Court of Canada, reprinted in (1978) 12 L.S.U.C.
Gazette 116.
-Ibid., 118.
‘-Ibid., 121.
“I Ibid.
“‘Address by Laskin C.J.C., Canadian Bar Association Annual Meeting (2 September
1982). For a lively journalistic reply, see Valpy, ARare Case, The [Toronto] Globe and Mail (4
September 1982) 6.
REVUE DE DROIT DE McGILL
[Vol. 28
was not saying that it was wrong to criticise the courts because criticism hurt
his feelings. He was saying that it was wrong because it was subversive of the
existing social order.
It also does not matter whether Chief Justice Laskin’s perception is
accurate. It may well be that outspoken criticism of the courts would strength-
en the existing social order, but that is beside the point. To argue thus is to
argue that we should have a different ideological perception of the role of the
courts in Canadian society, or that the ideological functions of the courts
should change. These may or may not be sound arguments. The point is that
the Chief Justice was accurately expressing the content of the present
ideology.
1.
The Legal Profession
It is probably self-evident that the legal profession shares the general
ideological orientation of the judiciary. What is striking is that the profes-
sion’s views about criticism of the courts are almost identical to those of the
judiciary.
For example, Rule 12 of the Rules of Professional Conduct issued by the
Law Society of Upper Canada states: “The lawyer should encourage public
respect for and try to improve the administration of justice,” “I The commen-
tary on the rule enlarges on its application, thus:
the lawyer should avoid criticism which is petty, intemperate or unsupported by his bona
fide belief in its real merit … [W]here the tribunal is the target of unjust criticism, the
lawyer, as a participant in the administration of justice, is uniquely able to and should
support the tribunal, both because its members cannot defend themselves and because the
lawyer is thereby contributing to greater public understanding of and thus respect for the
legal system.” 2
An examination of the structure and composition of the Canadian Judi-
cial Council and provincial judicial councils also reveals lawyers’ fears of
open criticism of the judiciary. The councils exist for the purpose, among
other things, of investigating complaints about misconduct or misbehaviour
on the part of judges. “3 Two points about such investigations should be noted.
“‘Law Society of Upper Canada, Professional Conduct Handbook (1978) 36 [hereinafter
L.S.U.C. Handbook]. (The handbook was re-issued in 1981, in substantially revised form. It
continues to bear the publication date of 1978).
“2lbid., 37.
“‘For the Canadian Judicial Council, see S.C. 1976-77, c. 25, s. 15 and for the Ontario
Judicial Council, see R.S.O. 1980, c. 98, ss 7, 8.
1982]
CRITICISING THE JUDGES
First, in the case of the federal Council, all the persons who take part in an
investigation are lawyers, while in the case of, for example, the Ontario
Council, five out of seven are lawyers. Secondly, in both cases, the investiga-
tion is held in private. It seems safe to say that the legal profession supports
the secrecy surrounding such proceedings, and, if anything, believes they are
not secret enough.”‘ One member of the profession was incensed when the
Law Society of Upper Canada published the text of a report into the conduct of
Harry A. Williams, a judge against whom allegations of consorting with
prostitutes had been made. ” 5 But the desire not to have allegations of judicial
wrongdoing made public goes further. What is the proper course of action if I
as a citizen have what I am convinced is incontrovertible evidence of serious
misbehaviour by a judge? Should I call up a reporter or write my M.P.? The
view of the profession is clearly that these courses of action would be wrong.
The proper thing to do is to bring the matter, in confidence, to the attention of
the appropriate judicial council. ” 6
The profession is also quick to respond to criticism coming from legal
academics or from within its own ranks. In 1951, Professor John Willis
published a spirited attack on a decision of the Supreme Court of Canada.” 7
An outraged practitioner wrote to the editor of the Canadian Bar Review that
while the utmost latitude must be allowed in criticisingjudges and judgments at the proper
times, … the dictates of good taste must surely impose some limits.,,
At a deeper level, the writer of the letter seemed to regard it as positively
immoral that Willis should seek to analyse the political and social attitudes of
judges and the effect of those attitudes on judicial behaviour.
Paul Weiler evoked a similar reaction when he published In The Last
Resort. As noted above, Weiler made some critical comments about the
Supreme Court of Canada, but the criticism was very abstract, polite, and
restrained. It appears, nonetheless, that there were those among the profes-
“‘See, e.g., Hearing on 2 Judges Secret, Toronto Star (18 August 1977) B-7; Odam,
Judging the Judges Becomes the Issue, The Montreal Star (24 February 1979) C-2; The Whole
Truth and Nothing But, The [Toronto] Globe and Mail (4 May 1976) 6; Yaffe, Mum’s The
Word as2 Judges Face Morals Complaints, The [Toronto] Globe and Mail (18 August 1977) 5;
Jefferson, Complaints About Judges Heard Only in Private, The [Toronto] Globe and Mail (4
February 1980) 4.
“‘See the letter of Stinson, (1978) 12 L.S.U.C. Gazette 295.
1,””Means exist through Attorneys-General and Judicial Councils for the investigation and
remedying of specific complaints of official misbehavior and neglect; in particular cases these
should be resorted to in preference to public fora and media.” L.S. U.C. Handbook, supra, note
111, 78, fn. 5.
“‘ Willis, case comment, (1951) 29 Can. Bar Rev. 296.
“‘Power, letter to the editor, (1951) 29 Can. Bar Rev. 573, 578.
McGILL LAW JOURNAL
[Vol. 28
sion who thought Weiler should be committed for contempt, not so much, in
my view, because of the precise comments he made, but because he had had
the temerity to undertake such a project in the first place.”19
When members of the profession have found themselves forced into
publicly discussing the judiciary, their distaste for such an undertaking is
made evident. For example, the chairperson of the 1971 Canadian Bar
Association symposium on the judiciary felt constrained to make this elabo-
rate disclaimer:
When word of this panel reached certain quarters it was suggested to me that matters
of this kind ought not to be discussed in public, but only between gentlemen, inprivate…
lest there be any misunderstanding, I wish to say that in organizing this panel, the Alberta
Subsection on Constitutional Law in no way intends to imply the quality of judges in
Alberta or in Canada is as a whole low.”
In the Toronto Globe and Mail of 5 September 1981, Clayton Ruby, a
Bencher of the Law Society of Upper Canada, was quoted as saying that, with
some notable exceptions, the persons appointed to the provincial court bench
in Ontario were “Tory bagmen, backroom political hacks”. 21 Three promin-
ent Toronto lawyers took umbrage. They wrote a letter to the editor in which
they sought to refute Ruby’s claim. At the same time they restated the
ideological position against criticising the judges: “Mr. Ruby does a disser-
vice to the administration of justice and the confidence of the public in our
judicial system by making such unfounded statements.” 2
The shock which the very notion of criticising the bench seems to induce
in the profession is nothing new. The following words were written in 1873 by
William Kerr, a Qudbec lawyer:
In no profession does the horror of coming out boldly against abuses affecting itself, exist
so strongly as in that of the Bar. … They have a dislike to washing the soiled linen of the
profession in public; they are afraid of exciting the enmity of the judges if they attack the
Bench, or any of its members.”‘
The words have lost none of their force today.
“9It was also suggested, apparently, that Professor Ian Hunter be committed for contempt
for having characterized a judicial decision as “unrelenting imbecility”. See Hunter, Strange
Passion in the County Court (1970-71) 13 Crim. L.Q. 184, 184.
“MacDonald,
‘ See Steed, McMurtry’s double-header, The [Toronto] Globe and Mail (5 September
remarks reprinted in (1973) 11 Alta L. Rev. 279, 280-1.
1981) 10.
October 1981) 7.
Can. Legal Stud. 220, 248.
“‘Maloney, Humphrey & Bynoe, letter to the editor, The [Toronto] Globe and Mail (6
“‘Quoted in Angus, Judicial Selection in Canada -The Historical Perspective (1964-68) 4
19821
CRITICISING THE JUDGES
2.
The Media
It is my impression that the mass media share the ideological predisposi-
tion which has been noted. I infer this from the lack of mass media criticism
noted above, although one must not discount the effects of both apathy and
ignorance concerning the legal system. Where journalists are knowledgeable
about the legal system, as is the case with court reporters, there exist implicit
pressures on them, as well as defence counsel, social workers, and everyone
else involved, to accommodate the performance of their roles to the organisa-
tional demands of the criminal justice system.’24 In any case, it seems that
when stories are written about particularly outrageous judicial conduct, such
conduct is portrayed as aberrant, atypical. Take the case of former British
Columbia Provincial Court Judge Leslie Bewley. He observed from the bench
in one case that “women don’t get much brains before they’re 30 anyway”.
This caused something of a storm. My reading of the media coverage of the
incident is that the primary concern was that Judge Bewley himself, by his
conduct, was undermining the public perception of the independence and
impartiality of the bench.'”
There is a palpable diffidence in the media when a story involves the
legal system. In some cases this diffidence may be imposed by management.
On 27 October 1970 the CBC issued a memorandum to all staff on the subject
of “Policy in Matters of Public Controversy”. The memorandum was
obviously prompted by the events in Montreal of that month. It is, nonethe-
less, of broader interest. Staff were admonished that “accuracy, impartiality,
good judgment and respect for the law are essential”. 26 This diffidence may
also be an expression of a journalist’s own views. Thus, in writing of the
September 1981 decision of the Supreme Court of Canada concerning the
“patriation” of the Canadian constitution, Richard Gwyn observed: “It seems
impertinent to criticise the nation’s most distinguished, experienced, and by
presumption, wisest, judges.” 127 Like many members of the legal profession,
many Canadian journalists seem to believe that criticising the judiciary is
scandalous and subversive.
‘1’See Blumberg, The Practice of Law as a Confidence Game: Organizational Cooptation of
a Profession (1967) 1 L. and Soc. Rev. 15.
“‘2See, e.g., Clarke, What’s Legitimate Pricefor Women’s Rights, The [Toronto] Globe and
Mail (25 February 1978) 8.
“‘Re Canadian Broadcasting Corp. and National Association of Broadcast Employees and
Technicians (1973) 4 L.A.C. (2d) 263, 264.
“‘Gwyn, Constitutional Decision Damages Supreme Court Credibility, [London] Free
Press (2 October 1981) 7.
REVUE DE DROIT DE McGILL
[Vol. 28
Conclusion
The law of scandalising the court is crystallized ideology. But the ambit
of the ideology goes beyond the narrow terms of the law. The deficiencies of
the Canadian judiciary have not been made the subject of widespread public
debate because to do so would be to undermine the existing ideological
perception of the role of the courts in our society. It is for fundamentally
ideological reasons that the courts are insulated from intensive public scru-
tiny. It is said often that judges should enjoy special protection simply
because they are not permitted to reply to criticism and because they have no
opportunity for redress against persons who might defame them. This view is
doubtful. As the discussion of Chief Justice Laskin’s three speeches indi-
cated, judges can and do enter into public battle with their critics. ” On a much
more mundane level, Canadian judges did not hesitate to make a number of
public statements in December 1981 in which they sought to justify receiving
pensions without having to contribute to them.’29
The case of Mr Justice Thomas Berger of the British Columbia Supreme
Court raised, in a stark fashion, the question of what judges might and might
not say in public. Berger, a former leader of the B.C. New Democratic Party
appointed to the bench by a Liberal government, had developed a reputation
as an outspoken defender of human rights –
particularly those of the Native
peoples of Canada. He had, indeed, written critically of a number of Supreme
Court of Canada decisions. 30 In November 1981, he made a speech and
published an article in the Toronto Globe and Mail both of which pointed out
what Berger saw as deficiencies in the proposed package of constitutional
amendments. Another judge complained about these statements to the Cana-
dian Judicial Council. The Council established a Committee of Investigation
to look into Berger’s conduct. 3 Berger was not intimidated and took to the
pages of the Globe and Mail once more, this time to defend his own
conduct.’ The Committee of Investigation made its enquiry and reported
thereon to the Council. The Committee concluded that Berger had acted in a
‘2 Mr Justice Dickson’s view is simply that”judges traditionally do not respond to newspap-
er or other criticism”. Supra, note 5, 162.
‘”See Strauss, Judges Object to PayingforPension Plan, The [Toronto] Globe and Mail (7
December 1981) 1. On another plane, Chief Justice Deschenes of the Qu6bec Superior Court
published recently a book in which, among other things, he attacked vigorously both the
legislative and executive branches of government in that province. See J. Desch~nes, The
Sword and the Scales (1979).
13 See Berger, supra, note 41. See also T. Berger, Fragile Freedoms: Human Rights and
Dissent in Canada (1982).
I” See Valpy, But Have No Fear, The [Toronto] Globe and Mail (7 May 1982) 6; Sheppard,
Probe of Berger Called Witch Hunt, The [Toronto] Globe and Mail (7 May 1982) 9.
2 Berger, Fundamental Fairness at Stake, The [Toronto] Globe and Mail (25 May 1982) 8.
1
1982]
CRITICISING THE JUDGES
way that was “unwise and inappropriate” by becoming “embroiled” in a
matter of “great political controversy”. It decided further that Berger’s con-
duct would support a recommendation for his removal from office. The
Committee in fact stopped short of such a recommendation because “[i]t is
possible that Justice Berger, and other judges too, have been under a mis-
apprehension as to the nature of the constraints imposed upon judges”. 33 The
Canadian Judicial Council, in my view, rejected this report. The Council
resolved that while Berger had been “indiscreet”, his actions “constitute no
basis for a recommendation that he be removed from office”. As a general
rule, the Council stated that “members of the Judiciary should avoid taking
part in controversial political discussions except only in respect of matters that
directly affect the operation of courts”.”T Chief Justice Laskin commented at
length on this decision in his address to the Annual Meeting of the Canadian
Bar Association in 1982. He stated the principle in this way: “[H]owever
personally compelled a judge may feel to speak on a political issue, however
knowledgeable the judge may be or think he or she be on such an issue, it is
forbidden territory.” 115 With all respect, this was not the same standard laid
down by the Canadian Judicial Council.
What emerges from this analysis is that judges can and do make public
remarks. The question what is permissible depends on the content of the
remarks. Mr Justice Berger spoke out to demand that the rights of Native
peoples be protected in the Constitution of Canada. He very nearly found
himself removed from office. Around the same time, Mr Justice Monnin of
the Manitoba Court of Appeal made reference, on the bench, to “drunken
Indians”. In the view of the Canadian Judicial Council, this remark was
“unfortunate”, but was not a proper basis for disciplinary action.36
‘Government of Canada, Report of the Committee of Investigation to the Canadian
Judicial Council (1982) 23 (in the matter of Mr Justice Berger, an unpublished report)
[hereinafter Investigation Committee Report].
I” Canadian Judicial Council, Resolution of May 1982. The Resolution and the Investiga-
tion Committee Report, ibid., were transmitted by the Canadian Judicial Council to Jean
Chretien, the Minister of Justice, on 31 May 1982 and made public by him on 4 June 1982. This
incident gave rise to some very critical journalistic writing about the judiciary, although, in
fairness to the Council, the distinctions between the decisions of the Committee of Investiga-
tion and that of the Council itself do not seem to have been understood. Nonetheless, one was
treated to the unusual spectacle of seeing words like “hypocrisy”, “non-entity”, “bonehead”,
“injustice”, and “loaded verdict” used to refer to the judiciary in the popular press. See, e.g.,
Fotheringham, Hypocrisy of judges on high matched by “sneak” Chretien, The [Ottawa]
Citizen (8 June 1982) 8 and Lynch, Justice Berger established as distinguished thinker, The
[Ottawa] Citizen (8 June 1982) 9.
3’Supra, note 110.
’13 See No action planned on Indian comment, The [Toronto] Globe and Mail (1 October
1982) 10.
McGILL LAW JOURNAL
[Vol. 28
Further, there is no legal rule which would prevent a judge being a
plaintiff in a libel action. 37 I must admit that I do not know of a case where this
has occurred. Still, it is worth noting what happened in the incident reported
as Re Nicol. “I A writer, it will be recalled, had accused a judge and a jury of
being murderers and torturers. The writer was committed for contempt. In
addition, a number of members of the jury initiated successful libel actions
against the writer.
The ideological systems in other capitalist states have developed from
historical traditions which differ from Canada’s. Thus in England, much
wider criticism of the judges is permitted. In the United States, it is even
encouraged. The organic, Tory view of the world with its attendant respect for
authority is deeply rooted in Canada. 3 9 This older, pre-capitalist ideology still
exerts powerful pressure. There is, inevitably, a tension between this tradi-
tional ideology and the ultra-individualistic demands of contemporary North
American capitalism. It is in the resolution of this tension that the issues of
how much and what kind of criticism may be directed at judges will be
determined. At some point it will be perceived widely that the deficiencies of
the Canadian judiciary are of a magnitude sufficient to be an ideological
liability. At that point the content of the ideology will undergo a subtle shift. It
will then be accepted that in order for justice to be seen to be done, for the
integrity and impartiality of the administration of justice to be maintained, the
protective covering must be removed from our judges.
“I Although there are rules which prevent judges being defendants in libel actions. See
Feldthusen, Judicial Immunity: In Search of an Appropriate Limiting Formula (1980) 29
U.N.B.L.J. 73.
“‘Supra, note 66.
‘9 See the classic exposition in G. Grant, Lament for a Nation: The Defeat of Canadian
Nationalism (1965). See also C. Taylor, Six Journeys: A Canadian Pattern (1977).
