Appointing Crown Prosecutors to Provincial Courts: Balance in the Calgary Criminal Justice System?

Appointing judges to the provincial court bench is always a little tricky. You need someone who’s experienced with criminal justice law, and ideally someone who knows the ins and outs of the criminal court system here in Calgary and throughout the province; but at the same time you need someone as unbiased as possible. Finding that balance—someone who can sit on the bench with years of experience handling the law behind them, but without bringing any particular prejudices developed over those years with them—can be tough.

As reported in the Calgary Herald, the most recent judicial appointment to Alberta’s provincial court bench is Lloyd Robertson. Robertson spent his entire career practicing law as a Crown prosecutor and is moving to his position as a judge from the position of Calgary’s Chief Crown prosecutor—the top guy in charge of prosecuting alleged criminal in Calgary.

There is no reason to automatically assume that Mr. Robertson won’t be a fair judge simply because he has spent his entire career as a prosecutor (or even as the Chief Crown), but there is perhaps reason for a bit of extra scrutiny in a system that is supposed to not only be but appear above reproach. As Robertson’s writeup in the Herald notes, there is something of a tradition when it comes to appointing Chief Crown prosecutors to the provincial bench.

Calling them a “distinctive group,” the article lists Manfred Delong, Bruce Fraser, and Gord Wong as other provincial court appointees of the past quarter-century who were Chief Crowns at the time of their appointment, and Beth Hughes made the leap from Chief Crown prosecutor straight to the Court of Queen’s Bench.

I don’t have a list of Calgary’s top criminal defence lawyers who have jumped straight into judicial appointments over the past twenty-five years, or a precise list of other Crown Prosecutors who have made the leap (though I certainly know some), but I know over recent years that the Chief Crown appointment appears automatic. An automated procedure warrants some scrutiny.

At the end of the day, it’s not that there’s anything inherently suspicious about Robertson’s appointment or reason to suspect him of potential bias on the bench, but more that the system (or the folks in charge of it, at any rate) seem to follow a tradition of automated appointments. One of my largest concerns is that defence appointments require a “cooling off” period with certain lawyers, such that former associates cannot have cases heard by newly minted, previous defence lawyer judges. No cooling off period is EVER applied for Crown appointments. One might think that since the Chief Crown was in charge of all Prosecutors, that a cooling off period is not only appropriate, but fair. From this I perceive the system to have inherent bias. Somehow Crown appointments are deemed ethically superior to Defence appointments in that no cooling off period is required for them. Frankly, I find that offensive, as should every Defence lawyer and in particular, former defence counsel appointed as a judge.

In truth, prejudices and ambitions can lead anyone astray; it’s the person practicing the law and not the type of law they practice that leads to problems both in legal practice and on the bench. I provide the most rigorous, comprehensive defence to my clients that the law will allow, but I don’t step outside the bounds or guidelines the law sets—and most defence lawyers, along with most Crown prosecutors, practice the same way.

From what I know of Mr. Robertson, I have some confidence he will be a fair judge, and for his appointment, I say congratulations; though the truth is, once Chief Crown, congratulations was inevitable.