JUSTICE

Disorder in the court

More and more judges behave erratically

NORA UNDERWOOD April 24 1989
JUSTICE

Disorder in the court

More and more judges behave erratically

NORA UNDERWOOD April 24 1989

Disorder in the court

JUSTICE

More and more judges behave erratically

Arrested after he slammed his former girlfriend’s head against a wall and threatened to kill her, Peter Tavares, 19, pleaded guilty in a Winnipeg court last month to charges of assault and possession of a deadly weapon (a loaded shot-gun). Provincial court Judge Frank Allen sentenced Tavares to two years’ supervised probation. Many feminists said that they were infuriated that Tavares’s sentence was so light—and also by a comment that Allen made to Tavares as he sentenced him. “Somebody once said to me, ‘Women—can't live with them, can’t live without them.’ From 60-odd years of experience, there isn’t anyone worth the trouble you’ve caused yourself,” said the judge, who came under judicial scrutiny himself as a result of the remarks.

The controversy was not an isolated incident. The actions of another Manitoba judge were questioned last week after he appeared to suggest that men might sometimes be justified in slapping women. Manitoba’s attorney general, James McCrae, asked the Manitoba Judicial Council to review remarks made in February by Kenneth Peters, a provincial court judge in Dauphin, Man. During a case involving a man who pleaded guilty to striking his wife, Peters speculated about how a man could admonish his wife and declared, “Sometimes a slap in the face is all she needs.” That and other incidents in Quebec and Ontario in recent months have led some critics to suggest that an increasingly heavy case load may be causing Canada’s justice system to break down. “The system,” said Earl Levy, president of the Ontario Criminal Lawyers’ Association, “is bursting at the seams.”

The concerns have focused attention on the calibre of provincial court judges—who preside on one of the lowest rungs in the Canadian judicial ladder—and the increasingly heavy work loads that some are forced to carry. Currently, a total of about 1,000 provincial and territorial court judges, who sometimes owe their appointments to political influence, work in the 10 provinces and in the Yukon and the Northwest Territories. But legal experts, including Ontario’s chief justice, William Howland, say that the number of judges in many parts of the country needs to be increased. Indeed, in a report released in January, Howland said that in she areas of Ontario, trial dates had been set up to 14 months in the future. “The only way to solve the problem,” wrote Howland, “is by the appointment of additional judges.”

As well, a growing crime rate and new

federal laws are putting increased pressure on overworked judges. According to Levy, the 1982 Charter of Rights and Freedoms and the controversial 1984 Young Offenders Act have led to a torrent of complex challenges and

motions. Despite the increasingly heavy demands on their time, judges in the province’s lower courts—who handle more than 90 per cent of the country’s legal cases—rarely have the luxury of taking time to consider their decisions. Said Levy: “Judges become concerned with moving the case list along and perhaps frustrated because they can’t devote the time to each individual case that they’d like.” According to Douglas Bean, a provincial court judge in Toronto, Ontario judges are frustrated by the provincial government’s failure to improve salaries and working conditions for members of the bench. “Being a judge is very stressful and isolating,” said Bean.

“Judges are unhappy, and I

think this affects the quality of their work overall.”

Meanwhile, what many critics say are the unjudicial activities of some provincial court judges have done nothing to improve the image of the bench. Women’s organizations in particular have expressed anger by accusing certain judges of sexist behavior. In February, Marilyn McLean, a 19-year-old spectator in a Toronto court, was trying to leave the courtroom quietly at one point when provincial court Judge William Ross ordered McLean taken into custody. McLean was subsequently put into a holding cell, where she was strip-searched. Insisting that she had disrupted his court, Ross refused to release McLean until she made a formal apology in court. McLean did so and was released.

In another case, in December, Quebec Superior Court Judge Benjamin Greenberg cited 32year-old defence lawyer Danielle Roy with contempt of court for allegedly “using her charms” to influence a jury during a murder trial. Among other things, Greenberg—who later dropped the charge—said that he did not like the way Roy rolled her eyes and smiled at jury members.

A wide-ranging indictment of judges’ attitudes toward women emerged last month in a report by the Ottawabased National Association of Women and the Law, a group of lawyers who are interested in legal issues affecting women, which declared that many decisions by male judges reflected discriminatory atti-

tudes toward women. The report alleged that women often do not receive enough support money in maintenance and custody cases and that Canadian judges tend to undervalue the income-earning capacity of women in awarding damages to them in personal injury cases. Mona Brown, a lawyer from Carman, Man., who wrote the report, said that judges are a product of Canadian society, which “has an institutionalized system that favors males over females in courts and elsewhere.”

In Manitoba, the behavior of judges has been criticized by witnesses before Manitoba’s Inquiry into the Administration of Justice and Aboriginal People. In February, during hearings at the Peguis Reserve, 140 km north of Winnipeg, band Chief Louis Stevenson told the twomember commission that then-provincial court Judge Robert Trudel once stripped to the waist while changing into his robes at a circuit court hearing in nearby Fisher Branch. Stevenson said that he did not think Trudel would have done that in a courtroom filled with white people. Members of the Grand Rapids band testified that Trudel often appeared to be intoxicated while presiding over court sessions in northern Manitoba. (Trudel retired from the bench on March 16, 1988, before entering a guilty plea and receiving a two-year suspended sentence for obstructing justice in connection with a traffic ticket-fixing scandal that erupted in Winnipeg last year.)

Some legal experts say that part of the problem with Canada’s lower-court judges lies with the legal profession’s informal code of silence when dealing with its own members. Most provinces have a judicial council with the power to investigate judges and recommend appropriate remedies when the actions of judges are questioned. Still, hearings are traditionally held behind closed doors—and critics say that councils are usually reluctant to discipline judges. As well, some lawyers say that their colleagues are often reluctant to bring complaints against judges. “Who’s going to complain?” said Vancouver alderman and lawyer Harry Rankin, who is a member of the British Columbia Judicial Council. “The lawyers in front of the bar? That’s one of the weaknesses of the system.”

Other critics say that problems involving provincial court judges are the result of fundamental flaws in Canada’s judicial system. A

1968 report by former Ontario Supreme Court chief justice James McRuer was highly critical of the quality of justice dispensed by the province’s lower courts—and he blamed political patronage for the appointment of some mediocre lawyers to the provincial courts. “Since then,” said Peter Russell, a University of Toronto professor of political science who is a leading expert on the Canadian judiciary, “things really haven’t improved very much. In many provinces, the first criterion is: Does the person have political connections to the party in power? The result is you don’t get the best people.”

In the meantime, some of the provinces have

begun to implement changes aimed at improving the operation of their provincial court systems. In September, the Quebec justice ministry reorganized the province’s courts to give Quebec’s 379 provincial court judges equal jurisdiction over civil, criminal and young offenders’ cases. Montreal lawyer Julius Grey says that the reform should ease the pressure on the judicial system by making it unnecessary for judges with special powers to travel into rural areas to hear a single case. In British Columbia, the province’s justice reform committee published a report in December that

contained 182 recommendations for reforming justice administration in the province—including proposals for streamlining preliminary hearings to make them less expensive and time-consuming.

In Ontario, officials in Attorney General Ian Scott’s office say that they have begun a major restructuring to decentralize the provincial court system. Pilot projects are also under way to find ways of reducing delays in the courts. At the same time, Scott last year established a nine-member advisory committee that will make recommendations for judicial appointments and will include six nonlawyers. When Scott announced the measures in December, he said the lay-dominated committee would “do a great deal to remove any unwarranted criticism of political bias or patronage in appointments to the judiciary.”

For his part, Levy says that problems in provincial courts will only become more acute unless governments hire more judges, raise their salaries — which range from about $75,000 to $105,000—and grant them sabbaticals every five years to allow them to recover from the pressure of their work. As well, said Levy, provincial court judges should have more time to prepare themselves as prosecutors and defence lawyers bring forward complex arguments flowing from the seven-year-old Charter of Rights and Freedoms.

While the provinces grapple with the problems of an evidently overloaded judicial system, there are clear signs that tolerance may be wearing thin for judges who fail to uphold the dignity of their offices. After Judge Allen handed Tavares his probation last month, the office of Manitoba Attorney General I McCrae launched an appeal

0 of the sentence—to be heard

1 on May 30—and McCrae Q himself asked the province’s

judicial council to review Allen’s remarks. For her part, Tavares’s former girlfriend, Deanna Thacker, filed her own complaint with the judicial council. Said Thacker of the sentence handed down by Allen: “For a judge who’s supposed to protect, he’s doing quite the opposite.” As long as stinging indictments like that are heard, Canada’s lower-court judges are certain to come under increasingly heavy scrutiny.

NORA UNDERWOOD

DAVID PHILIP

KERRY DIOTTE

DOUG SMITH

LEIGH OGSTON

VALERIE MANSOUR