Scrap the Myth:  Judges Aren’t All Equal

 It astonished me to learn that lawyer Jerome Kennedy was facing disciplinary action from the Law Society of Newfoundland over his public criticism of judges.  I’ve been writing occasional columns critical of judges on this page for 15 years now.  While the possibility of various negative repercussions has occasionally crossed my mind, disbarment was never among them.

What I found particularly interesting was that Mr. Kennedy’s remarks had been made way back on July 28, 2003, but I had never heard about them then.  A search of the Canadian Press database for 2003 reveals only one brief mention of them.  If his comments even registered upon the average Canadian’s consciousness that day, they were apparently quickly forgotten. 

His disciplinary hearing, however, beginning in January, 2005, was another story.  It was covered by all the major newspapers and got further legs from an editorial in The Globe and Mail.  Now the whole country knows that Mr. Kennedy’s opinion is that sometimes trial judges “don’t know what they are doing” and that part of the reason might be “political appointments” and “intentional or unintentional biases.”

If Newfoundland Supreme Court Chief Justice Derek Green, who laid the complaint against Kennedy, is so concerned about bad publicity undermining public confidence in the courts, he should consider the damage he himself has done.  Not only did his complaint against Kennedy result in far greater numbers of people hearing the criticisms, it also must have set anyone with even a modicum of curiosity to wondering:  what is the Newfoundland judiciary so afraid of, that it feels compelled to muzzle that lawyer?   Could this wisp of smoke indicate a really serious fire? 

Canada has a rather distressing record over the past few decades when it comes to wrongful murder convictions.  Donald Marshall, David Milgaard and Guy Paul Morin are known to most Canadians, but there have been several other relatively unpublicized instances, including three men in separate cases in Newfoundland who were assisted by Jerome Kennedy in establishing their innocence. 

What’s the average person to think when he hears about these miscarriages of justice?  It doesn’t take great genius to realize that there are several possible places along the road from suspicion to conviction where the fault might lie.  Anyone who participated in the investigation and trial processes might have made mistakes.  This could include the police, the witnesses, the defence lawyer, the Crown, and the judge.  This is simple logic. 

In fact, Kennedy’s criticisms of judges were at most a 2-minute extract from a 45-minute speech in which he canvassed several other reasons for wrongful convictions besides judicial incompetence.  In other words, he was simply being methodical in addressing each of the logical possibilities.  To suggest that judges are immune from error when every other human being makes mistakes would be folly—and not very credible folly, at that.

The issue of uneven degrees of competence among judges has long been a touchy subject.  When this magazine published a survey on the best and worst judges in Canada in 1989, many members of the legal community were aghast.  A few even tried to prevent its publication.  However, the fiction that judges are all equally good at their jobs logically implies another ludicrous conclusion:  namely, that the committees who select judges never make mistakes, either.  How far do the ripples of infallibility have to spread before anyone can safely say with impunity that this is ridiculous?  

Just as there are superb chefs and substandard chefs, brilliant professors and pedestrian professors, virtuoso musicians and mediocre musicians, so there are gifted judges and—let’s just say “not-so-gifted” judges.

Recently, I experienced both extremes at two family law case conferences.  One judge was excellent at her work.  She was well prepared, had read the materials in advance, used her time efficiently, covered a lot of ground, made helpful suggestions, listened and responded to what the lawyers and litigants said, and earnestly worked at helping us resolve things. We accomplished a lot in her courtroom. 

The second judge started out by saying he hadn’t read the file.  Things went downhill from there.  He refused to discuss any important issues, airily commenting, “It’s still early days.”  He mouthed a bunch of platitudes at the litigants and dismissed us after half an hour without having accomplished anything.  It appalls me that this second judge gets paid as much as the first, and irritates me that I will have to continue subjecting other clients to this treatment in the future even though better judges are available.   

What’s to be done?  For years, I’ve recommended reforms that would allow the consumers of legal services—lawyers and litigants—to provide feedback on judges.  One possibility is anonymous evaluation forms such as those used in Florida.  Another possibility is to let lawyers choose who will preside over their cases, just as they choose mediators or arbitrators.  Judges would have to be both unbiased and capable in order to attract clientele.  Those who didn’t get enough customers could return to being lawyers.  

It’s also important, however, for the bench to acknowledge that criticism of one is not necessarily condemnation of all.  Judicial solidarity, while it might have awed the rubes of bygone centuries, won’t withstand the scrutiny of today’s sophisticated layman.  If anything, it will probably backfire, tarring the good rather than elevating the bad.  That would be a shame, because there are some really good judges out there. 

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