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Are Canadian Judges Ready for to Face Lawyer Criticisms? (And is T.V-Style Courtroom Drama Next?)

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Are Canadian Judges Ready for to Face Lawyer Criticisms? (And is T.V-Style Courtroom Drama Next?)

Many people form their impressions of how the Family Court system works from watching T.V. shows or movies, namely overwrought legal dramas or courtroom reality shows. The truth is that Family Law process is considerably more mundane; for example in Canadian law there are no “surprise” witnesses who emerge at the eleventh hour to derail the proceedings and save the day for the underdog plaintiff. Courtroom antics are frowned upon in favour of civility and decorum. And while tempers can certainly flare, volleys of insults and dramatic shouting-matches between opposing counsel are generally not tolerated. Moreover, judges have historically been immune to criticism by the lawyers who appear before them.

But should judges be? That was the question recently addressed by the Supreme Court of Canada.

The case called Doré v. Barreau du Québec involved the specific issue of whether lawyers should be at liberty to criticize judges. The case involved a Quebec lawyer named Gilles Doré, who in 2001 represented a client before a judge of the Quebec Superior Court. During the hearing, the judge rebuked Doré for some of his submissions on his client’s behalf, adding that “an insolent lawyer is rarely of use to his client.” He also stated that Doré’s style was full of “bombastic rhetoric and hyperbole,” and that some of his submissions were “ridiculous”.

In response, Doré wrote the judge a private letter, which read in part:

I have just left the court. Just a few minutes ago, as you hid behind your status like a coward, you made comments about me that were both unjust and unjustified, scattering them here and there in a decision, the good faith of which will most likely be argued before our Court of Appeal.

If no one has ever told you the following, then it is high time someone did…
Your deliberate expression of these character traits while exercising your judicial functions, however, and your having made them your trademark concern me a great deal, and I feel that it is appropriate to tell you.

Your legal knowledge, which appears to have earned the approval of a certain number of your colleagues, is far from sufficient to make you the person you could or should be professionally. Your determination to obliterate any humanity from your judicial position, your essentially non-existent listening skills, and your propensity to use your court — where you lack the courage to hear opinions contrary to your own — to launch ugly, vulgar, and mean personal attacks not only confirms that you are as loathsome as suspected, but also casts shame on you as a judge, that most extraordinarily important function that was entrusted to you.
I would have very much liked to say this to your face, but I highly doubt that, given your arrogance, you are able to face your detractors without hiding behind your judicial position. …
Worst of all, you possess the most appalling of all defects for a man in your position: You are fundamentally unjust. I doubt that that will ever change.

Doré also wrote to Quebec Chief Justice the next day, asking to be excused from having to appear before that same judge in the future, since he would be unable to fairly represent his clients before him. Doré also complained to the Canadian Judicial Council about the judge’s conduct (which Council ultimately found in Doré’s favour, incidentally; it ruled that the judge had made insulting and unjustifiably derogatory comments, and adding that the judge had displayed a propensity for making personal attacks on lawyers in other cases as well).
Still, Doré himself was found by a disciplinary council of his province’s Bar Association to have engaged in professional misconduct, based on the letter to the judge which was deemed “rude and insulting”. He was suspended from the practice of law for 21 days. That suspension was later heard by an Appeal Court and upheld.

The matter then came before the Supreme Court of Canada on further appeal. In a unanimous 7-0 ruling, the Court held that the Canadian judiciary should indeed be accountable and open to censure, and that “[l]awyers should not be expected to behave like verbal eunuchs.” In particular, under Charter principles there is a public benefit to allowing lawyers to express themselves in a constructive manner, not only about the justice system in general, but about individual judges in particular. Furthermore, disciplinary bodies were expected to tolerate “a degree of discordant criticism” by members of the Bar toward the judiciary.

With that said, the Supreme Court cautioned that lawyers are still expected by the public to display a certain reasonable level of professionalism and “dignified restraint”, and that they could certainly be subjected to professional discipline if their conduct exceeds that threshold.

In Doré’s specific case, however, the line of tolerance had been crossed; his conduct had gone beyond what the public would expect in terms of proper conduct by a lawyer. The Supreme Court added: “His displeasure with the judge was justifiable, but the extent of the response was not.”

Your thoughts?

For the full text of the decision, see:

Doré v. Barreau du Québec, 2012 SCC 12  http://www.canlii.org/en/ca/scc/doc/2012/2012scc12/2012scc12.pdf

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at http://www.russellalexander.com/practice/