By: Alice Woolley

PDF Version: Judgmental Judges

Case Commented On: Abdulaali v Salih, 2017 ONSC 1609 (CanLII)

Introduction

Judges exercise considerable power, and discharge a crucial public function. They identify, interpret and even create the rules that govern us. They decide what happened. And they determine the legal consequences of what happened.

But judges also exercise a defined and limited public function, and in doing so they are human, not superhuman. Judges determine and apply the law, but they do not decide questions of morality outside the law; they do not decide what it means to be a good person except as the law defines goodness. They do not – except in the specific ways the law asks them to – decide matters of public policy. Nor do they have any particular qualification to do those things. Judges know what happened only through the evidence in their courtroom. Even though some judges may be men or women of moral wisdom, there is no particular correlation between having that wisdom and holding judicial office. Judges have no democratic mandate to decide questions of public policy.

Yet obviously the lines between these things can be hard to draw. The law deals with – and decides – questions of morality. It deals with – and decides – questions of public policy. Deciding a case can require a judge to make a moral or policy determination. And even when it doesn’t, sometimes only judges can see problems of policy or morality clearly, and may be uniquely positioned to raise awareness of problems that society ought to address.

So at what point, if any, does a judge’s pronouncements on matters of morality or policy exceed his office? Does a judge have an ethical obligation to try and restrain his decision to the legal matter before him, addressing questions of morality or policy only as necessary for adjudicating the case? And can a judge commit misconduct if he exceeds his mandate in that respect?

These questions were raised for me by a March 13, 2017 written endorsement of a consent order by Justice Alex Pazaratz, in which he castigated the parties and Legal Aid Ontario for “squandering scarce judicial and community resources” (at para 26).   Continue reading →

By: Alice Woolley

PDF Version: Defending Rapists

Lawyers who defend people accused of sexual assault tend to be subject to one of two narratives in popular conversations, particularly on social media:

The critical narrative: Sexual assault is a violent and under reported crime. Our criminal justice system further victimizes complainants by treating their claims with unwarranted skepticism, and by degrading them both during the investigation of the crime and during the trial of the accused. Lawyers who represent an accused in sexual assault cases engage in morally suspect conduct, except in those (rare) cases where the accused is factually innocent. They directly participate in the victimization of complainants through cross-examination and the arguments they make in court.

The defending narrative: Everyone is entitled to the presumption of innocence. A lawyer who represents a criminal accused ensures the presumption of innocence is a reality, and that lawyer is entitled to be a zealous advocate on behalf of his or her client. Zeal requires doing whatever it takes to secure an acquittal, and the consequences of that for complainants are irrelevant, especially since many accused are innocent.

Continue reading →

By: Alice Woolley

PDF Version: Empathy in the Law: Does the Robin Camp Inquiry Committee Recommendation Encourage a “Postempathy era”?

Matter Commented On: Canadian Judicial Council Inquiry Committee Report Regarding Justice Robin Camp

What role should empathy have in a system of laws? What does an empathetic legal system look like? In a recent article on the Robin Camp case, Brenda Cossman raised concerns about the Canadian Judicial Council Inquiry Committee recommendation that Justice Camp be removed from the bench. She raised, in particular, the concern that removing rather than educating Justice Camp facilitates a growing “post-empathy” culture:

I worry even more about the impulse to punish in light of the recent rise of a powerful backlash against any and all equality-seeking groups. We have moved into a new postempathy era, where more people are prepared to stand defiantly and unapologetically in favour of discrimination, sexism, and racism. I worry that we dismiss the possibility of education and move to punish those who are genuinely remorseful (“For Judge ‘knees together’ Camp: Education is Power”, Globe and Mail, December 1, 2016).

I am not entirely sure what Professor Cossman meant, but I think that her point is that the absence of empathy in those who seek to remove Justice Camp encourages by example the absence of empathy in those who “stand…in favour of discrimination, sexism, and racism”. Our own insufficient empathy creates and empowers the post-empathy culture, which in turn creates the very sexism and discrimination that we seek to prevent. Continue reading →