Wednesday, November 24, 2010

The Anonymous Judge in the Globe and Mail

Here's something you don't - and very likely shouldn't - see every day.

Anonymous comments, attributed to "an Ontario judge," appear in this Globe and Mail report by writer Kirk Makin on a mistrial declared November 22nd in the second degree murder trial of Erika Mendieta at Toronto.

From the Globe report:

An Ontario judge with decades of experience as a trial lawyer and jurist said that Mr. Alexander likely felt a “strong emotional investment” in the case and wanted to see Ms. Mendieta testify.

“I’m quite upset about it,” said the judge, who asked to remain anonymous. “I find it very, very unprofessional and a form of egregious conduct. I have no doubt the Attorney-General has to distance himself from this. I would think a complaint would have to be filed with the disciplines section of the law society.”

The judge said it would not surprise him if someone – including the trial judge in the Mendieta case – filed a professional misconduct complaint at the Law Society of Upper Canada, the governing body for Ontario lawyers. “I know some judges have filed complaints about lawyers who appeared before them and acted unprofessionally,” he said.

The mistrial was caused by allegedly distracting and intimidating facial gestures by a Crown attorney during the testimony of the accused. The Crown involved, Paul Alexander, had carriage of a previous prosecution of these charges that had also ended in a mistrial. He was assisting prosecutors in the courtroom, but not robed or officially participating in this re-trial.

It is most unusual for judges to make public comments, outside their Reasons for Judgment, on events that occur in courtrooms, generally, let alone at trials conducted before other judges. The direct, condemnatory tone of these quoted views on the motives and actions of the Crown involved is especially unusual, particularly given that the quoted source was not apparently present in the courtroom to observe the conduct that is discussed.

While this form of public discussion by the nation's judges may not be specifically prohibited by the Canadian Judicial Council's Ethical Principles for Judges (leaving aside the issue of anonymity), the commentaries in the Principles on judges' participation in political and public debate do seem informative:
D. Political Activity
3. Judges should refrain from
...(d) taking part publicly in controversial political discussions except in respect of matters directly affecting the operation of the courts, the independence of the judiciary or fundamental aspects of the administration of justice;
D.1 This section deals with out of court activities of judges. In particular, it addresses political activity and other conduct such as memberships in groups or organizations or participation in public debate and comment which, from the perspective of a reasonable, fair minded and informed person could undermine a judge’s impartiality as regards issues that could come before the courts.
D.2 Commentators are unanimous that “all partisan political activity and association must cease absolutely and unequivocally with the assumption of judicial office.” Two considerations support this rule. Impartiality, actual and perceived, is essential to the exercise of the judicial function. Partisan political activity or out of court statements concerning issues of public controversy by a judge undermine impartiality.They are also likely to lead to public confusion about the nature of the relationship between the judiciary on the one hand and the executive and legislative branches on the other. Partisan actions and statements by definition involve a judge in publicly choosing one side of a debate over another. The perception of partiality will be reinforced if, as is almost inevitable, the judge’s activities attract criticism and/or rebuttal. This in turn tends to undermine judicial independence. In short, a judge who uses the privileged platform of judicial office to enter the political arena puts at risk public confidence in the impartiality and the independence of the judiciary.

D.3 Principles D.3(a) and (b) are widely accepted examples of overt political activity in which judges should not engage after appointment. Judges should also consider whether mere attendance at certain public gatherings might reasonably give rise to a perception of ongoing political involvement or reasonably put in question the judge’s impartiality on an issue that could come before the court.
Are other ethical issues triggered by a judge's insistence on anonymity in the public discourse?

What are the broader ramifications of incognito judges participating via the press in public water-cooler discussions of the day-to-day, sensational events in the courts? Do such anonymous comments maintain and enhance confidence in the impartiality of the judiciary? Is the right to fair hearing prejuduced for individuals targeted by anonymous judicial comments? Should the prestige of judicial office be used anonymously to buttress a public statement, without accountability? Is there an appearance that such anonymity could be employed to circumvent ethical norms around public comment by the judiciary?

The media's typical reliance on anonymous comments by political figures is at least occasionally controversial. Any trend toward further armchair quarterbacking in the press by judges under a veil of anonymity could not possibly be a good thing for the administration of Canadian justice.

That is a slippery slope, if ever there was one.
- Garry J. Wise, Toronto
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