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August 16, 2001

Lawyers say judges not above media criticism

Justices defend record: 'What is productive in personal attacks against judges?'

Sandra Rubin
National Post

Fred Greenslade, National Post
Justice Claire L'Heureux-Dubé called media criticism of judges an attack on judicial independence.

The Canadian Press
Justice Ian Binnie said the media deserve some criticism.

SASKATOON - The media has every right to criticize rulings from the highest court in the land because of its pervasive influence on Canadian life, but personal attacks on judges should be limited because they undermine trust in the justice system, several prominent lawyers said yesterday.

The remarks came a day after Madame Justice Claire L'Heureux-Dubé, of the Supreme Court of Canada, criticized "unproductive" media attacks.

"I would ask the people in the media to [tell] me what is productive in personal attacks against judges, and the pressure that it puts on the judiciary?" she asked in response to remarks from the audience following a panel discussion. "It is so unproductive that to me, it is a sliding slope, an attack really, to independence of the judiciary."

Judge L'Heureux-Dubé was at the heart of a very public brouhaha in 1999 after publicly criticizing an Alberta judge who had questioned the morals of the victim in a sexual assault case.

The judge denounced her for being anti-male and said her attitude could provide "a plausible explanation" for the increasing rate of male suicides in Quebec.

Their fight was widely reported in the media and strayed into Judge L'Heureux-Dubé's personal life.

"When these attacks come -- the savage attacks against me, particularly -- by some part of the media, that has to have an effect on some other judges -- and maybe the judge who is attacked," she told the Canadian Bar Association.

Eric Rice, a corporate litigator based in Vancouver, agrees there is a certain apprehension when a judge -- not the judgment -- is attacked in print.

"Judges' integrity is the foundation of our legal system," said Mr. Rice, chairman of the CBA. "The system depends on respect and if the public respect is undermined by personal attacks, the entire system is at risk."

Maurice Laprairie, president of the federation of Law Societies of Canada, said no judge is above criticism.

"Their work is routinely criticized by lawyers, by other judges, by the media -- by everyone," said Mr. Laprairie, a Saskatchewan trial lawyer. "They express an opinion that is independent and honest. That opinion is then up for criticism, to be critiqued, challenged and probed for its logic and its soundness. But taking a judgment and making it personal is a different matter."

Simon Potter, a corporate litigator in Montreal, said part of the problem is that judges who feel they are unfairly attacked have little avenue of response.

"Judges do have a great deal of trouble responding because they have to respect their obligation of reserve, of detachment, of independence, and they have to allow their judgments to speak for themselves," he said.

Mr. Justice Ian Binnie told the panel discussion that over the past 20 years, the media has "totally altered the conception which the Canadian public has of their rights.

"Without the media, none of this would have penetrated into the popular imagination -- the fact there is a Charter of Rights, the fact there are limits to what government can do, the fact that you have powers and freedoms that nobody can take away from you."

Judge Binnie said the media deserves some criticism for failing to give adequate context in reporting the Supreme Court, and for being overly selective in what is presented. He said the traditional view has often been "when the political lions and tigers aren't generating much of interest, good sport may be had of the judicial giraffe."

However, he concluded, "the bottom line, in my view, is if the price of bringing these rights and awareness and consciousness and empowerment to Canadians through the charter has been accomplished by the media, then a little sport with the judicial giraffes is not too high a price to pay."

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