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Erika Tucker's Wicked Questionable Little Question.

September 19, 2016

Global News Columnist, Erika Tucker, recently posed an interesting question: Why don’t Alberta judge’s know the law?


I offer some imperfect musings on this subject.


As a starting point, let me say that there are a great many Alberta Judge’s who, to the extent that any human being is capable “know the law”.  Though I think the question, Why Don’t Alberta Judge’s Know the Law, is a good one, I ask the reader not to unfairly brush all of Alberta’s jurists as necessarily lacking knowledge.   Regardless of the headline questions over-breadth, it is nevertheless, as Friedrich Nietzsche would say, one of those interesting, “wicked, questionable little questions”.


University of Calgary Law Professor, Kathleen Mahoney offered some interesting insight into the question, suggesting that a lack of education and imbalance in judicial appointments could be part of the problem.  To some measure at least, educational proficiency and the appointment process walk hand-in-hand. The judicial appointment process is responsible for appointing merited people, who should not only possess a profound understanding of the law, but the right temperament and ethical metal to hold such important positions.  I have long questioned the transparency of the judicial appointment process; previously raising wicked, questionable little questions about the process in which our judge’s are selected.


Now, faced with a recent spate of criticism for the handling of a few cases (mostly sexual assault cases), I think it is very important not to loose the forest through the trees.   Up until Ms. Tucker’s article, most of the dialogue has focused upon the specific handling of sexual assault cases.  Let me offer that sexual assault cases often involve serious collisions of credibility between opposing sides that are difficult, if not impossible for any right-minded thinker to resolve.  As much as all of us want justice for purported victims of sexual assault, it is often impossible for the justice system, looking from the outside-in, to decide “beyond a reasonable doubt” that the accused, in a he-said, she-said credibility contest is guilty.  I highlight that many Canadians were prepared to convict Jian Ghomeshi despite evidence of dishonest collusion amongst his accusers.  I suspect many of those in the “Ghomeshi Guilty” protest movement were prepared to simply ignore the troubled evidence in that case and convict a person who may not actually be guilty.


To that end, I appreciate the Globe and Mail’s effort encouraging us not get mad, but to get informed.


Getting “informed” about the recently exposed frailty in Alberta’s justice system is no less important.  Equally important to being “informed” is to critically think about the information and not confine analysis to the specifics of a sexual assault litigation or to an outdated law. Rather, we should think about the problems from a broader perspective.


Firstly, let me say that there are a great many outstanding judges in this Province, who do yeoman’s work on a quotidian basis. Many Alberta jurists are extremely intelligent, fair minded, evenly tempered professionals who do a great service to litigants and to the practice of law. One need only to have spent a single minute in a Courtroom with now retired Justice Peter McIntyre to appreciate the importance of a wise and fair-minded judge.   I am pleased to tell you, there are many more.  These jurists make the practice of law special and though we may not always agree with them, we respect them.


With that in mind, I wish to highlight that even THE BEST judges make mistakes.  Though judges physically sit above the rest in a courtroom, and though we rely upon them to apply the law in making decisions, they are no less than human.   Anything fitted with human frailty is bound to make mistakes.  And make no mistake, making mistakes whilst practicing one way or another (as lawyer or judge) in our justice system is inevitable.


Section 19 of the Criminal Code of Canada deems that “ignorance of the law by a person who commits an offence is not an excuse for committing the offence”.  I suppose section 19 is a kind of necessary moral imperative; but though it is necessary, it is in some cases no less absurd. The law is complicated business.  Lawyers, judges, police and politicians struggle with it. So to expect our jurists to be error free is simply unreasonable.  And if those practiced in the field of criminal law are prone to making mistakes or even being ignorant, is it reasonable to expect Citizen Joe to be any better?  I think the answer is no. 


Despite the fact that it would be unreasonable to expect perfection on the part of our judges, I do think we should contemplate submitting a wishlist of qualities to ensure that our system functions properly in the future and for all time.


I offer my thoughts, but what are yours?


Firstly, judges should be appointed transparently, based upon merit. Is it too much to ask that anybody who wishes to be informed about how and why a judge is appointed be fully apprised of the reasons for that person’s elevation to such an important, powerful and esteemed position? 


Secondly, judges should be learned in the law.   How can anybody have confidence in the administration of justice if a judge’s knowledge of Canadian law is questionable, let alone, as Judge Camp honestly admitted, “non-existent”.


Thirdly, merit and knowledge are not enough. Merit tells us that the appointment has earned the selection (in the sense that he or she has paid his or her dues), and knowledge tells us that the appointment is learned, but merit and knowledge tells us nothing about the wisdom and temperament of the judge. Adjudicating cases is not only about making decisions based upon the law; it requires an emotionally mature person, who is able to approach a difficult job with a palpable measure of self control, emotional maturity and selflessness.  After all, is it too much to ask that litigants be able to present their case in a courtroom that is honestly open to hearing their side of the story?  Is it too much to ask that litigants not be mocked or exposed to vicious or belligerent behavior by their judge?  This is a small request; for when a litigant is ridiculed or downtrodden by his or her judge there is a high probability that his or her argument is silenced.  A silenced argument is no argument at all.


Fourthly, judges should be good listeners. A judge who merely sits silent without hearing a word or who is incapable of being moved by one litigant or another is not deciding issues critically; rather they are deciding authoritatively. 


Finally, in criminal justice, a good judge must have a strong character, capable of withstanding immense criticism by the public, lawyers and other judges.  Not everybody is going to agree with a judge’s decision and sometimes, judges must make decisions that are incredibly unpopular, but absolutely necessary to maintain the free and democratic country in which we live. To that end, a judge should have a profound respect for the Canadian Charter of Rights and Freedoms and should be prepared to shoulder the protection of all citizens whose long term rights could be reduced to cinder out of a desire to seek retribution in a singular case. 


This my wishlist.  What is yours?   


I hope that the recent exposure of frailties in our judicial system are not forgotten, but are used as a basis for much needed improvement. 


By way of final comment, I think there is much truth to the thought that our Bench is only as good as the lawyers who present cases before it. As lawyers, I think all of us need to strive to improve.  At a minimum, I know this lawyer must strive to improve.


We are not perfect creatures, but if we try our level best to meet some obviously basic criteria, we might be able to minimize our mis-steps by simply being better (albeit never perfect) at what we do.


David G. Chow


David Chow is a Calgary criminal defence lawyer and Calgary DUI lawyer who handles cases throughout Alberta, British Columbia and Saskatchewan.  Call David at 403.452.8018 for a free consultation.  For more information about Drinking and Driving offences or other offences visit:


This entry was posted on September 19, 2016

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