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
public confidence in the courts, he should consider the damage he
done. Not only did his complaint against
Kennedy result in far greater numbers of people hearing the criticisms,
must have set anyone with even a modicum of curiosity to wondering: what is the
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
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
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.