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Vincent Clifford: Decisive and powerful, yes, but judges are human beings

(2012-07-19)

Decisive and powerful, yes, but judges are human beings  

By W. Vincent Clifford, The Ottawa Citizen

July 19, 2012

OTTAWA — Previous Right to Know columns have considered the legal doctrines of “proof beyond a reasonable doubt” and “the presumption of innocence” in the context of examining the critical roles that defence lawyers and prosecutors play in our justice system. But defence lawyers and prosecutors do not determine the outcomes of cases. Lawyers present their evidence and arguments to judges. It is the judges who must weigh the evidence, interpret and apply the law and control the proceedings in the courtroom.

Canadians might picture a judge as a stern-faced, magisterial presence who exudes an aura of wisdom, decisiveness and most importantly, power. The reality is that judges are human beings; they do not descend from on high, vested with an innate ability to discern truth from falsehood.

Judges are appointed to “the Bench.” The federal government appoints judges that preside in superior courts and the provincial governments appoint judges who preside in provincial courts. All judges must have practiced law in Canada for a minimum of 10 years.

Lawyers seeking a judicial appointment must submit an application to either the federal or provincial government. Ideally, those who are appointed will have demonstrated, within their own practice of law, that they are capable of performing the important and difficult task of administering justice.

Judicial independence and impartiality are paramount in the Canadian judicial system. Independence and impartiality are two distinct concepts. The concept of judicial independence is so fundamental to our system of justice that it is enshrined in our Constitution.

While governments appoint judges and pay their salaries, judges are not subject to governmental control. Judges must be free to make decisions that may be unpopular, while resting assured that they will not be removed from office as a result of their rulings. In short, judicial independence ensures that judges are free from external pressure and influence.

Their independence is safeguarded by their security of tenure, their financial security and their administrative independence. Once judges are appointed, they are eligible to sit until the age of retirement (between 70 and 75 depending on the level of the court) and are paid sufficiently so that they are not subject to pressure from other institutions.

Given that the criminal justice system is adversarial, it is also critical that judges remain neutral. Judges are required to be impartial, harboring no predisposition toward the prosecution or the defence. As part of being impartial, it is expected that judges will be fair and open-minded when hearing cases and will avoid becoming a litigant for either side. This does not mean that judges shouldn’t ask questions, or urge lawyers to get to the heart of an issue; indeed, there are even occasions when judges should remind an impassioned lawyer to get to the point (it happens to the best of us).

The fact that judges are independent does not render them unaccountable or immune from review. The most common manner in which a judge is held accountable for errors is via the appellate process. A judge is required to give “reasons” in coming to a verdict. The “reasons” are basically a summary of the accepted evidence and the applicable law. When one party feels that the judge made a mistake in the ruling, or in the conduct of the trial, the case can be appealed to a “higher” court. In Ontario, there are two levels of criminal appeal courts and the Supreme Court of Canada sits above those courts.

Appellate courts have the power to set aside a judge’s verdict on numerous grounds. Verdicts are commonly overturned when they are unreasonable, unsupported by the evidence, where the judge has made an error in the law, or more generally, where there has been a miscarriage of justice.

Judges are not reprimanded when an appeal court determines that they have committed an error. The appellate court does however provide ample reasons for the reversal. Apart from the proclamation that the trial judge has erred, there are no consequences for a judge when a decision is overturned.

Although it is rare, there have been times when judges have gone beyond committing judicial errors and have committed acts of misconduct, both in and out of court. When misconduct on a judge’s part is alleged, an independent judicial council is called upon to investigate the complaint. If an allegation of misconduct is proven, it could lead to a judge being subjected to remedial measures.

In the face of egregious misconduct, the judicial council can make a recommendation to the government that the judge be removed from office. This is a very rare occurrence. Since 1867, there have been only five superior court judges recommended for removal. Since 1995, at the provincial court level in Ontario, there have been only three misconduct findings. Almost all of the misconduct findings in either court arose from judges making highly improper comments and/or displaying a lack of impartiality.

Adhering to the pillars of independence, impartiality and fairness, most judges in Canada sit until the age of retirement and are highly regarded as key components in our collective pursuit of justice. The eminent author and philosopher Albert Camus declared, “Do not wait for the final judgment. It comes everyday.” Such is the reality of judging in our honorable courts.

 

W. Vincent Clifford is certified by the Law Society of Upper Canada as a Specialist in Criminal Law. He is the managing partner of the law firm of Edelson Clifford D’Angelo, LLP. He can be reached at vincent@edelsonlaw.ca and you can follow him on Twitter at twitter.com/WVClifford.


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