Globe and Mail

Stupid judge tricks

Why do our upholders of justice go off the rails? Incompetence, prejudice, ignorance and declining mental faculties are a few obvious explanations. But, most often, they trip up when they venture into the treacherous territory of social commentary.

Saturday, March 13, 1999
The Globe and Mail

Toronto -- Judges are people, like the rest of us, until they don their judicial robes and enter courtrooms. Then they are expected to rise above human frailties and become impartial triers of facts and arbiters of disputes. Mostly, but not always, they succeed.

When they fail, we are outraged. Martin Friedland, author of a 1995 report on judicial independence and accountability for the Canadian Judicial Council, says that's because we put them on a pedestal and expect them to operate with great integrity instead of seeing them as "real people who sometimes get drunk or do stupid things."

The passing of the Charter of Rights and Freedoms in 1982 gave judges both more visibility and more power to make rulings that have wide applications in social and public policy. Some of those decisions have sparked controversy -- not only in academic debates but in the media and on political platforms. Psychiatrist Vivian Rakoff says judges are caught in a curious sort of contradiction. "They are given an elevated position in which they must express themselves with regard to the law," he says, "but they also think that gives them permission to talk about anything."

So why do judges sometimes go off the rails? Incompetence, prejudice, ignorance and declining mental faculties are a few obvious explanations. Typically, though, they tend to trip up when they veer from a strict interpretation of the law and venture into the treacherous territory of social and cultural commentary. Lest you thought for a second that the recent boner by Mr. Justice John McClung of the Alberta Court of Appeal was an isolated incident, herewith a lineup of gaffes from the past:

1. Mr. Justice Jean Bienvenue of the Quebec Superior Court berated a Trois-Rivières jury in 1995 for being "idiotic and incompetent" for finding a woman guilty of only second-degree murder after she had killed her husband by slashing his throat with a razor. Then he delivered full-bore invective against the defendant in pronouncing sentence: "When women ascend the scale of virtues, they reach higher than men, and I have always believed this. But it is also said, and this, too, I believe, that when they decide to degrade themselves, they sink to depths to which even the vilest man could not sink."

He continued: "Alas, you are indeed the image of these women so famous in history: the Delilahs, the Salomes, Charlotte Corday, Mata Hari and how many others who have been a sad part of our history and have debased the profile of women. You are one of them, and you are the clearest living example of them that I have seen." But he didn't stop there: "At the Auschwitz-Birkenau concentration camp in Poland, which I once visited, horror-stricken, even the Nazis did not eliminate millions of Jews in a painful or bloody manner. . . . They died in the gas chambers, without suffering."

Judge Bienvenue also commented on the short skirt worn by a reporter covering the trial and asked the bailiff for a bottle of vodka while the jury was deliberating.

2. Judge Jocelyn Moreau-Bérubé told a court in Tracadie-Sheila, N.B., in 1998, that there were few "honest people" in the province's francophone Acadian peninsula. She also wondered aloud whether she was surrounded by crooks in her neighbourhood.

3. Judge Monique Dubreuil angered the Haitian community in Montreal in 1998 when she sentenced two men, whom she said were "immature" and not a threat to society, to an 18-month suspended sentence for sexual assault. She explained her leniency by saying that the victim was not a juvenile and that the men, who were of Haitian origin, came from a culture where rape is accepted. "The absence of regret of the two accused seems to be related more to the cultural context, particularly with regard to relations with women than a veritable problem of a sexual nature," she said in her ruling.

4. In a 1997 wrongful-dismissal suit against the owners of a McDonald's franchise in Milton, Ont., Mr. Justice Casimir Herold of the Ontario Court's General Division criticized "the goop that they put on Big Macs, the patented stuff," on the grounds that it "makes you sleepy, especially if you are a bookkeeper or an area manager." He impugned the defence lawyer's credibility by saying that some of his responses should be filed under the heading "the moon is made out of green cheese," and suggested he had either shredded some pertinent documents or had put them in "somebody's hamburger."

5. Criticizing the complainant in the Ewanchuk case because she "did not present herself [to the defendant] in a bonnet and crinolines" is not the first time that Judge McClung's rash judicial pen has gotten him into trouble. In 1996, he wrote the Alberta Court of Appeal judgment in a majority decision reversing a lower court ruling that the government should change the Individual Rights Protection Act to prohibit discrimination based on sexual orientation. "Rightly or wrongly, the electors of the province of Alberta, speaking through their parliamentary representatives, have declared that homosexuality . . . is not to be included in the protected categories of the IRPA," he wrote in determining that a private Christian college had the right to fire Delwin Vriend from his job as a lab assistant because he is gay.

By ignoring the issue of sexual orientation in its human-rights legislation, the province was neither encouraging nor condoning discrimination, Judge McClung argued and therefore was not violating the Charter of Rights and Freedoms. "When they choose silence, provincial legislatures need not march to the Charter drum."

6. Mr. Justice Marcel Joyal of the Federal Court criticized his employer -- Parliament -- when he was presiding over a 1998 Toronto hearing in which Ted Weatherill, then head of the Canada Labour Relations Board, was seeking an injunction to prevent the federal cabinet from firing him. Mr. Weatherill had spent close to $150,000 on food and travel during his eight years at the CLRB. When then labour minister Lawrence MacAulay told the House of Commons that Mr. Weatherill would be fired for his extravagance, MPs stood up and applauded. In the subsequent hearing, Judge Joyal compared Parliament's treatment of Mr. Weatherill to the cheering crowds gathered at the guillotine during the French Revolution. "I don't know if I have the right to intervene. But it left a bad taste in my mouth," he said.

7. Martha and Joseph Sorger, both Holocaust survivors living in Toronto, sued the Bank of Nova Scotia, one of its branch managers and a lawyer acting for the bank for failing to perform their fiduciary duties. Halfway through the 1996 trial, the lawyer for the plaintiffs tried to obtain a mistrial because Mr. Justice Joseph Potts of the Ontario Court's General Division frequently interrupted testimony, gave the impression that he had made up his mind before hearing testimony, was rude and anti-Semitic. At one point, he allegedly interrupted Mrs. Sorger's evidence by saying: "Jesus Christ, it's like pulling hen's teeth." When the Sorgers' lawyer asked for an adjournment so they could observe the High Holidays, Judge Potts replied: "You're one of those, too?"

8. Mr. Justice Kerr Twaddle of the Manitoba Court of Appeal lessened the sentence of a man convicted of having sex with a 13-year-old girl from nine months in prison to a curfew and community service on these grounds: "She was apparently more sophisticated than many her age and was performing many household tasks, including babysitting the accused's children." Judge Twaddle described the relationship with the accused as "entirely inappropriate and criminal," but he argued that the victim was not coerced. "The girl, of course, could not consent in the legal sense, but nonetheless was a willing participant," he concluded.

9. In 1996, Mr. Justice Allyre Sirois of the Saskatchewan Court of Queen's Bench observed during a bail hearing for a man who beat his former girlfriend unconscious after she asked him to turn down the television set that "it takes two to tango." In 1993, at a dangerous-offender hearing, Judge Sirois referred to a prostitute who had been assaulted at knifepoint as belonging to "a different caste"; the year before, he told a woman who had been assaulted at the age of 12 that she had to accept some responsibility for the event.

10. During the 1987 trial of a Sri Lankan man accused of soliciting sexual services from a female police officer posing as a prostitute, Ontario Judge J. S. Climans advised the accused to "write back to Sri Lanka and get yourself a girlfriend. All she needs is a boat and she can come in."

11. Quebec Judge Denys Dionne observed during a trial in 1989 in Longeuil that: "Rules are like a woman, they are made to be violated."

12. Quebec Judge Raymonde Verreault cited "extenuating circumstances" when she handed down a 23-month sentence in 1994 to a man who had repeatedly sodomized his stepdaughter from the time she was 9 until 11. The victim did not have any "permanent scars" from the sexual assaults, according to Judge Verreault, because the attacker had respected the values of her Muslim faith and had "spared her virginity" by not engaging in vaginal intercourse. Besides, the girl may have encouraged the accused because she "harboured hatred" against her mother.

13. Quebec Judge René Crochetière ruled in 1993 that there was not enough evidence to bring a man to trial for threatening to kill his live-in lover. On leaving the crowded courtroom, the alleged victim said to the judge: "If I get killed, it will be your fault." To which he replied: "I would like to tell everyone here that, if ever this man kills this woman, it won't stop me from sleeping and I won't die -- don't worry, I won't get depressed, either. It isn't my responsibility."

14. Manitoba Judge Frank Allen offered the following advice in 1989 to a 19-year-old man accused of beating a female acquaintance: "There isn't any woman worth the trouble you got yourself into." In a 1984 sexual-assault trial, the same judge observed: "You would have to be living in a vacuum, totally without wordly experience at all, not to know in many cases women are first to resist and later give in to persuasion and sometimes their own instinct."

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