Justice understood by Justin Ling, Fall 2016, The Canadian Bar Association National Magazine, The Power of Perspectives
Social media has intensified public scrutiny over the work of our courts. But with so much misinformation out there, is it time for the courts to have a public defender?
For as long as there have been open courts and a free press, media have covered trials to inform, sometimes to entertain, and generally to ensure that justice is not only done, but seen to be done. But with the justice system coming under the increasing – and often uninformed – scrutiny of the court of public opinion, it’s legitimate to ask whether it needs protection of its own.
In simpler times there was no question that courts could take care of themselves. Town criers were trusted to deliver news of court verdicts and sentences without adding their critique of the legal process, trying to shape public opinion, agitating for change or disparaging the abilities and approaches of the lawyers, judges and juries responsible. And their reach was limited to the people who could physically hear them.
In the 21st century, bloggers sometimes react to rulings before the traditional media report on them. Armchair lawyers tweet their disapproval and share scathing remarks on Facebook; they troll the internet for hyperbolic responses and then repost them. Pundits on 24-hour news networks endlessly parse the minutiae of the case, and their comments, along with other news pieces and opinions about how the court’s various actors handled themselves — not all of which are informed by a deep knowledge of the case or of the law — can go viral overnight, reaching millions.
This kind of full-on criticism may be driving unfounded public mistrust of the whole justice system when, in fact, the outcome of any given case will have turned on the abilities and decisions of individual lawyers.
In the past, this kind of criticism has also created public pressure to change the system – at times for the better. But what if pressure is brought to bear by people who don’t understand it to change a system that actually works?
This dilemma is what has some musing about a role for a defender of the courts. Such a person would, theoretically, be able to explain issues to the media and public, helping to maintain public trust in the system. [Like media lock ups when rulings are released?]
On balance, given the emerging pressures, Paul Schabas of Blakes’ Toronto office believes the courts need such a defender.
When Ghomeshi and Duffy were each eventually acquitted, the judges’ rulings in both cases were met with massive public outrage leading to vitriolic criticism of the lawyers and judges involved – criticism that was extrapolated to the justice system in which they operate.
Patrick McCann, counsel at Fasken Martineau in Ottawa, is no stranger to high-profile cases: he represented Pte. Kyle Brown, who was convicted of manslaughter in the 1993 Somalia Affair for the death of a Somali teenager. He was directly involved in the Gomery inquiry, and served as counsel to Nigel Wright, former chief of staff to then-prime minister Stephen Harper. He also defended Hamed Shafia, co-accused with his father and his father’s wife in their widely covered “honour killing” trial in 2012.
He downplays the idea that there is some foundational rot in the justice system that needs to be decried by the media and repaired. Rather, he says, extreme cases will always generate extreme coverage.
“You’ve got to look at who’s commenting. Journalists, unfortunately, have the universal view of themselves as experts on everything,” McCann says. [ Is McCann judge and jury of The Supreme Court of Journalists?] “I don’t think it’s gotten any worse, at least not in the regular media. I think there’s always been an obsession with the one-off case.”
But McCann concedes that some public and media attacks on the justice system may be rooted in misunderstanding.
Today, discussion, dissection and criticism of the Canadian court system are arguably the loudest they’ve been in modern history. The justice system may not, as McCann says, be in the throes of some foundational rot, but it may still need to grapple with the long-term effects of critical media coverage on Canadians’ trust.
According to a 2013 Statistics Canada survey, only 57 per cent of the public have faith in the Canadian justice system. A second poll that year showed fewer than a third of sexual assault survivors have confidence in it.
As social norms have shifted — often driven by the media, often for the better — so have the courts. And some of the change has been positive: for example, courts no longer automatically treat a woman’s testimony as lesser than a man’s. [Really? Better ask Justice Robin Camp.] Nor do they, as a matter of status quo, place a larger burden on non-white accused to prove their innocence. Sections of the law that discriminate against gay men have been deleted and struck down.
Still, just how widely and deeply the media’s influence should extend—and whether a defender of the system is needed to mitigate any undue influence—remains a complex matter.
Social media ups the ante
One issue created by the growing influence and infiltrating presence of social media is its potential to affect the outcomes of trials in other ways. Prutschi points out that social media makes it easier for jurors to interact with the news—including, at times, with the trial they’ve been assigned to. By its sharing nature, social media can create permanent proof of possible juror prejudice.
Now that everyone’s social media history is so immediately accessible, finding a juror’s Facebook post saying “Ghomeshi is obviously guilty,” or “Duffy is a crook!” gives the defence a huge new weapon with which to disqualify and weed out unfriendly members of the pool.
“It definitely makes it easier for jurors to get caught,” Prutschi says.
Meanwhile, an enterprising juror may have the impulse to research his or her own case, opening the door to a wealth of prejudicial material. In this way, an individual’s past history, legal and otherwise, could come flooding into a case despite the judge’s best efforts to keep it out.
Dominic Grieve, Attorney General for the United Kingdom from 2010 to 2014, highlighted these problems in a 2013 speech to the University of Kent entitled “Trial by Google? Juries, social media and the internet.”
“(The) internet is a haystack of material, scattered with the odd prejudicial needle, as it were,” he said. “Trial by Google allows a juror to locate the haystack, find the needle, pull it out and ascribe significance to it that it simply would never have had otherwise.”
Blakes’ Schabas is open to the idea that the system needs its own spokesperson – a judge whose role would be to act as a liaison between the courts, the media and the public. A press judge, in effect.
While the idea of a member of the bench having direct contact with the press is enough to make most lawyers cringe, Schabas says it’s not unprecedented.
Sir Alan Moses, who sat as Lord Justice of the UK Court of Appeal until 2014, was tapped to head up the Independent Press Standards Organisation, which sought to become a voluntary, contract-based oversight body for the English press that exists outside the government itself. He offered an idea, and it’s the one that Schabas has endorsed: appoint press judges.
Moses introduced the idea in a 2014 speech, noting that these judges have been in place in Holland for some time—known as persrechter in the lower courts and persraadsheer on appeal.
“If you ask who is best equipped to represent the legal system of which they form the central part, is it not a judge?” Moses said at the time, concluding that the judge ought to essentially play a role akin to a jury foreman, fielding questions and criticism on behalf of the bench as a whole. “Let media (liaise) through media judges, in various court centres, at various court levels, and respond to criticism and set the boundaries within which reasoned and rational debate can take place.”
That principle exists, to some degree, at the Supreme Court of Canada. The Executive Legal Officer of the court serves as both an administrative advisor to the Chief Justice and as the high court’s main media contact for journalists, briefing the fourth estate on significant cases.
More often than not, that type of role is not replicated in the lower courts. But there might be some utility to it.
Owen Rees, now in private practice with Conway Baxter Wilson LLP, served as the executive legal officer of the Supreme Court from 2012 to 2015. His job, he says, was to explain the top court’s rulings “within the four corners of the court’s judgment … and to answer the questions that the media may have to an appeal before the court. Everything from the straightforward ‘Where do you find this information?’ to ‘Can you explain in plain language what the outcome of the case is, and why the court decided the way it did?’”
While Rees says replicating his former role in the lower courts would likely be a net positive for the public, the success of a media officer in the criminal and civil courts would really depend on how often the media chose to attend those briefings, or how often they reached out to Rees’s hypothetical counterpart. But such a role has the potential to be helpful, at least in the next Ghomeshi, Shafia or Duffy trial.
“Based on my experience, it’s a role probably best played by a lawyer who is not a judge,” Rees says. “The executive legal officer is not a spokesperson in the legal sense, and I think a judge has limits on what she or he can say on legal proceedings. I’m not sure it’s a model that would work in Canada. If there’s any gap to fill, it’s probably best for it to be a lawyer who works with the judges, but it isn’t the same thing as having a judge come explain what the decision was.”
The concept is a good one, Duffy’s criminal defense Donald Bayne told CBA National recently at the CBA Legal Conference in Ottawa in August. But it’s an idea that should probably be tested and improved upon if ever implemented, he adds. At the conference Bayne expressed great concern about decline in the respect for the rule of law at a time of growing anger against elites and experts, including those in the legal profession.
“I think the right person – a public defender of the justice system, or better yet a public explainer of the justice system – the right person could have a great deal of credibility and positive impact.” It’s why he warns against bureaucratizing such a position out of fear that the public would just tune out. “If you have a good person who explains and communicates well and speaks with an authoritative voice, that would be very effective. It can’t be someone who can’t communicate in the public’s own terms. You’re trying to convey complex concepts.”
Simon Potter, a former CBA president and partner at McCarthy Tétrault in Montreal is more cautious: “The minute we talk of a ‘government employee’ doing this I worry about whether it’s truly independent commentary.” He suggests that the CBA has a role to play in reminding the public not to jump to conclusion in high profile cases. “Prosecuting attorneys could do it too.”
Still, not everyone is anxious about the impact of media scrutiny on the justice system. Some would even characterize it as beneficial. Despite his endorsement of the idea of a “press judge,” Schabas, who focuses on media and constitutional law, has an unruffled view that can be summed up as, “If change is needed, change will come.” He raises the example of how the courts have come under fire in the media for their handling of sexual abuse cases in the past, and how—in line with a tidal shift in society’s attitude towards equal rights—they have reformed themselves from within to better adjudicate those cases.
He points to changes in how the courts have handled domestic assault cases over the past few decades. In the old days, the victim would provide a statement and the police would lay charges, but when the case reached a courtroom, “the victim would recant, and the Crown would shrug, and the judge would shrug, and let the guy go.”
Schabas credits the Toronto Star and other media for pushing the courts to allow victims’ previous police statements to become admissible in court—which is what eventually happened. That the law evolved proves the system works, he says.
Prutschi — who is a regular contributor to the Toronto Sun and commentator on CBC and CTV—believes the media attention surrounding the Ghomeshi and Duffy trials may have been a good thing.
Prutschi argues that improved public access is a positive shift. “I like the fact that more people can hear what happens in our courtrooms,” he says “The more we talk to people about it, I think the more confidence they get in the system.”
Of course there can be drawbacks. Between the advent of the sound-bite era and the growth in the numbers of “citizen journalists” and armchair lawyers, Prutschi says the public debate can be a bit distorted, though he’s not convinced that social media and the internet age have substantially changed the “tenor of the conversation.”
“There’s a beauty in letting people state their opinions, even if they’re wrong opinions,” he says.
The public town hall on the nature of our justice system may be getting more raucous, but Schabas contends that it hasn’t yet had an impact on an accused’s right to a fair trial.
“If the question is: has it affected trials, and the outcome of trials? I would say it’s emphatically: no,” Schabas says.
Similarly, despite the theoretical risks caused by jurors interacting with social media, Prutschi is skeptical about it becoming a pervasive issue in Canada. “I think juries take their role very, very seriously” here, he says.
Whether the courts need a public defender – and who the best spokesperson might be – may be a matter for debate, but one thing is clear: public interest in the judicial system is a runaway train. The need may ultimately hinge on where it takes us. [Emphasis added]
[Refer also to:
A inquiry committee of the Canadian Judicial Council [currently chaired by Supreme Court of Canada Chief Justice Beverly McLachlin] has recommended the removal of a judge over controversial comments he made in a sex assault trial.
Court transcripts show Robin Camp called the complainant “the accused” throughout the trial, suggested her attempts to fend off her alleged attacker were feeble and asked her “why couldn’t you just keep your knees together?”
He also told her “pain and sex sometimes go together.”
Camp acquitted the man, Alexander Wagar, but the verdict was overturned on appeal and a new trial was ordered. Testimony in the retrial wrapped up earlier this month
“We conclude that Justice Camp’s conduct … was so manifestly and profoundly destructive of the concept of the impartiality, integrity and independence of the judicial role that public confidence is sufficiently undermined to render the judge incapable of executing the judicial office,” the committee said in its recommendation released Wednesday.
“Accordingly, the inquiry committee expresses the unanimous view that a recommendation by council for Justice Camp’s removal is warranted.”
The committee also said Camp “relied on discredited myths and stereotypes about women and victim-blaming during the trial and in his reasons for judgment.
“Accordingly, we find that Justice Camp committed misconduct and placed himself, by his conduct, in a position incompatible with the due execution of the office of judge.”
At a hearing earlier this year, Camp apologized for what he called his rude and insulting attitude toward the then 19-year-old woman when he was a provincial court judge in Calgary in 2014.
The hearing heard that Camp had undergone sensitivity training and counselling with a superior court judge, a psychologist and an expert in sexual assault law. He admitted in testimony that he had made mistakes, but said he was willing to learn from them and wanted to remain on the bench.
The committee said that didn’t make up for his comments.
“In these circumstances, the impact of an after-the-fact commitment to education and reform as an adequate remedial measure is significantly diminished.”
It’s now up to the Canadian Judicial Council to decide whether the recommendation should be taken to the federal justice minister, who has final say on whether Camp should lose his job. [Emphasis added]
2016 10 27: Supreme Court of Canada clears Gabriel Nadeau-Dubois of contempt charges. After four years of legal process: “One of the things that I’ve learned…is we have a problem in Quebec and Canada, in terms of access to the justice system.”
2016 10 13: AER Redwater Appeal: Will the courts protect the rich, make ordinary Canadians pay for industry’s abandoned oilfield messes? Alberta Court of Appeal to decide who will pay for Redwater’s abandoned wells after bankruptcy (using the law to intentionally avoid responsibility after years of profit-taking?)
2016 10 13: Justice delayed, justice denied, in Alberta’s dysfunctional court system: “Trial delays like this aren’t just unfair. They’re absurd. They make us look like a banana republic. And they undermine public confidence in the rule of law itself.”
2016 10 12: Retiring Supreme Court of Canada Justice Thomas Cromwell turns focus to pursuing a more accessible civil and family legal system. “There is a serious access to justice problem in Canada.” … “Various court workers were of the view that the ‘civil system [is] … very much open to abuse by those with more money at their disposal.’”
2016 09 28: Alberta Provincial Court Chief Judge Terrence Matchett: “Justice delayed truly is justice denied.” Wait time for civil cases reaching trial in Alberta can take 2.7 years. Ernst case is in its 9th year with Ernst still waiting to find out if she can start her lawsuit against AER for violating her Charter rights
2016 09 22: Is AER vs Redwater worsening cleanup of abandoned oil and gas wells in Alberta, BC and Sasktchewan? Did AER file the lawsuit intentionally to set legal precedent and dump clean up costs on taxpayers to enhance profits for oil and gas companies?
2016 05 30: Big Thinking Lectures at U of Calgary: Supreme Court of Canada Chief Justice Beverley McLachlin on rule of law principal that “no one, no matter how important or powerful they are, is above the law in a diverse society.”
2016 05 27: “Where does the buck stop?” AER to appeal ruling on oil, gas cleanup obligations. Chief Justice Wittmann found Alberta’s oil and gas licencing regime to be unconstitutional relating to money, but not in Ernst’s “valid” constitutional claim against AER relating to drinking water contamination by oil and gas
2016 05 17: Stephen Harper intentionally denying Albertans justice? How long will his toxic disdain for the courts live on? “Harper government failed, over years, to live up to its constitutional obligations to fill vacancies on the bench, with perverse negligence for a party that claimed to be all about law and order.”
2015 10 10: Let’s Heave King Steve: “This law-and-order man routinely abuses the legal system, wasting more than $100 million a year in courts denying justice to the Aboriginal Peoples; keeping Omar Khadr tangled in specious cases despite losing at every turn, including thrice at the Supreme Court; not accepting three court rulings against his ban on the niqab; and fighting scores of Freedom of Information requests. When the judges don’t do his bidding, he insults them, including the chief justice of the Supreme Court.”
2015 08 14: Alberta Justice Minister Kathleen Ganley: ordinary Albertans “can’t afford legal services anymore.” Canada’s Chief Justice Beverly McLachlin: people falling through the cracks, “We all know that unresolved legal problems adversely affect people’s lives….”
2015 07 08: Do Canadians have access to justice or just enormous legal bills, delay after delay after delay after delay? Harper Government appoints 43 judges in June, filling court vacancies left languishing as long as a year and a hal
2014 04 03: Centennial for The Court of Appeal of Alberta: Special News Series: An interview with Chief Justice Catherine Fraser. Recapping major decisions; Canadian Charter of Rights and Freedoms entrenched in Constitution, Canada’s highest law
“The system fails to meet the public’s reasonable expectations of timeliness.” … Just as physicians guard their professional autonomy, so judges defend “judicial independence.” They don’t like outsiders prodding them or poking about in their affairs, let alone criticizing the slow administration of justice.
Ms. McLachlin said the issue is especially relevant to civil courts, where there are not enough judges, lawyers are expensive – “I am not criticizing that, but it’s a fact” – and there are delays. The issue, she noted, is under review by the Action Committee on Access to Justice in Civil and Family Matters, which includes the Canadian Bar Association, Justice Canada, and the Canadian Judicial Council.
2011 Chief Justice Beverley McLachlin, University of Toronto conference:
“We have wonderful justice for corporations and for the wealthy. But the middle class and the poor may not be able to access our justice system.”
Like this kind of wonderful justice for corporations?
[Chief Justice Beverley McLachlin] says there are more and more people who are being hindered by barriers such as cost, delay and complex procedures.
“A court system where some ride to justice in a Ferrari while others don’t get out of the garage falls short of the ideal of justice for all,”]