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Canada’s judges urged to speak out and change outdated perceptions

Constitutional expert Peter Hogg says it would be a reasonable limit on constitutional rights and freedoms.

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A newly retired chief judge says Canada's judicial leadership needs to "get into the 21st century" and speak publicly about the issues facing the justice system, rather than hiding behind the outdated notion that judges speak only through their rulings.

Neil Wittmann of Alberta was one of just five sitting judges who spoke in public sessions of the Senate's legal and constitutional affairs committee, discussing how to fix delays in the justice system, in light of a Supreme Court ruling last summer that set time limits for criminal trials.

By comparison, 32 judges spoke either at in-camera sessions (closed to the public, but with verbatim recordings made) or completely private sessions of the Senate committee.

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The vast majority were completely private at the judges' request; their statements were not even recorded, on tape or in any other verbatim form, according to information provided to The Globe and Mail by Senator George Baker, the committee's deputy chairman.

The 32 judges instructed the senators not to quote them by name in their report, expected soon, he said.

"What kind of a message does that send out?" Mr. Wittmann told The Globe of judges insisting on appearing out of sight of the public.

"Traditionally, the role of the judge speaking out was always, 'Well, my judgment speaks for itself. We speak through our judgments, that's what we do.' I think in today's world, that just doesn't cut it any more. It's naive. And I don't think the public, as represented by the media, accepts that any more."

In an hour-long interview on the occasion of his retirement as chief justice of Alberta's Court of Queen's Bench, which took effect May 1, he said that judges are increasingly subject to public criticism, and that the public needs to hear and see the leaders of the judiciary explaining what goes on in their courts.

"I think the judiciary to some extent has to get into the 21st century, has to understand that transparency is the new watchword, and the judiciary is not immune from that in many areas. And I think they should welcome it, and welcome interaction, and not shy away from it."

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The judiciary has been increasingly in the spotlight. Judges are on the front lines in ensuring that criminal trials can be completed within the new time limits. Judges have also been criticized over their conduct of sexual-assault trials, prompting demands for greater accountability.

Some judges on the Supreme Court have been speaking out regularly on areas of personal interest, drawing publicity. Justice Rosalie Abella gave a commencement address in the United States on Sunday in which she said "narcissistic populism" is a threat to tolerance and equality. Two years ago, Chief Justice Beverley McLachlin said Canada had attempted "cultural genocide" against Indigenous peoples. Justice Michael Moldaver gave speeches a dozen years ago, as a member of the Ontario Court of Appeal, in which he said he was "mad as hell" about criminal-justice delay. (As a Supreme Court judge he co-wrote the ruling setting out the new time limits for criminal trials, in a case known as R v Jordan.)

A turning point for Canadian judges was thought to have come in 1989 when the late Supreme Court justice John Sopinka gave a speech titled, "Must a judge be a monk?" His answer: Judges can and should comment on matters relating to the administration of justice. "As key players in the justice system their views should not be absent in fear of somehow entering the political fray on issues such as court reform," he said in a subsequent speech.

But the large number of judges speaking behind closed doors to the Senate suggests not much has changed since the Sopinka speech, according to Osgoode law dean Lorne Sossin. "I don't think we've come far enough," he said in an interview. "Nobody knows more about trial delays than judges will. I don't know if it's a chill or a growing reticence to participate at a time when every word will be parsed" in an era of social media.

Chief Justice Christopher Hinkson of the B.C. Supreme Court and Chief Justice Robert Bauman of the B.C. Court of Appeal were among those who participated in private sessions of the committee. Contacted by The Globe, they said their aim had been to protect their neutrality. "Our first reaction was that it might not be appropriate for a judge to give evidence on the record," because judges often adjudicate matters involving government (including the very topic of criminal justice delay), they said in a joint statement by e-mail. "For good reason, judges outside the courtroom setting tend to avoid public comment on government activities, whether those be neutral comments, denunciations or advice on how things ought to be done."

Chief Justice Bauman added a separate statement saying he is open to greater transparency: "On reflection, I have no criticism of judges who chose to speak in public sessions or in private sessions. I don't see one way as any more effective than the other. I have a strong belief that judges, particularly chief justices, should be communicating with the public about concerns regarding the system. The Senate committee process is not the only way and is not necessarily the best way for judges to voice concerns publicly, but it is one way for those judges who felt comfortable doing so."

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Chief Justice Glenn Joyal of the Manitoba Court of Queen's Bench said in an interview that the judges who spoke in private to the Senate committee may have addressed specific cases or circumstances better dealt with privately. But he says judges, particularly chief judges, have a responsibility to play a public, educational role. "It's a fine line between restraint and abdication," he said.

The judges who spoke in public sessions were creative and open. One of the five, Justice Ray Wyant of the Manitoba Provincial Court, proposed a third plea, alongside guilty and not guilty – an acceptance of responsibility in low-level cases (such as a first-time theft), in which the court would note what happened, and perhaps set conditions; the plea would not result in a criminal record.

For his part, Mr. Wittmann was blunt and direct. He said that he and the other judges on the Court of Queen's Bench had discussed the Jordan ruling informally, and none of them understood how it applied to the so-called transitional cases – those already in the system before last summer.

The 74-year-old Mr. Wittmann, who became a judge in 1999, had much more to say in the interview, calling the Jordan ruling "a much-needed wake-up call," and asserting that training in sexual-assault law for would-be judges, as set out in a bill before Parliament, may not help the few who simply "don't get it."

His next job has already begun: conducting a review into the use of lethal force for the Calgary Police Service.

Video: Ambrose says sex-assault training for would-be judges is ‘common sense’ (The Canadian Press)
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