On the morning of Jan. 6, the first sitting day in 2003 for Ontario's Superior Court of Justice, judges of the court who preside in Toronto were invited to an annual "ecumenical" service, this time at a Christian church, to mark the opening of the courts.
Many judges accepted the invitation, closed their courtrooms and travelled to the church together in special buses arranged by the organizers of the event. I was one of the judges who declined the invitation, in my case for the 21st consecutive year since my appointment to the bench, because I think that it would have been wrong for me to accept it.
In the world of law, the appearances of justice are almost as important as justice itself. Judges must appear to be totally independent and impartial so that no litigant ever need fear being treated differently from any other litigant. That is my principal reason for believing in the importance of separating our courts from all other institutions including, in its generic meaning, "the church."
Despite the efforts of the organizers of these services, which take place across Canada, not all religious groups participate or are represented by clergy. Although it is common for clergy from the numerically significant religions in our community to host these services and officiate at them, clergy and places of worship of many other groups are apparently never included.
As I understand it, the highlight of these services is one or more inspirational addresses by clergy, accompanied by scripture readings, exhorting the judges to do their judging with some appropriate recognition of some of the religious implications of their roles. Judges who attend sit, clad in judicial robes otherwise worn only in court, in specially reserved sections and listen carefully to what is being said to them.
Although I laud the organizers' good intentions (and those of my colleagues who attend), I respectfully ask if their efforts and participation may be wrong in principle. In my view, no clergyman, or anyone else for that matter, is entitled to have a special opportunity to address judges en masse about how they should judge. And no judge should ever expose himself or herself to such an event. The content and meaning of what is said is only of secondary importance.
In giving this service some kind of special status by closing down part of the court system and participating in it, the implicit message that is communicated by the court to the community, including people of excluded religions and atheists, is that there is a special relationship between the courts and some of "the churches." It is a relationship from which large segments of our community are excluded, and about which they could understandably be suspicious.
This message is too often repeated and fortified, such as when litigants see witnesses being asked whether or not they wish to be sworn on a religious book, another religious ceremony uncritically imported into the justice system.
I view religion as a private matter. What goes on between my Creator and me is a matter of person conscience. I keep that relationship private in part to separate it from my judicial duties. Believers and non-believers receive the same kind of justice when they appear before me in court and I endeavour never to do anything that might make it appear that I, or my court, has some special relationship with any other institution in our community.
That's why I remained in court on Jan. 6 and carried on with my work. Ted Matlow is a judge of the Superior Court of Justice of Ontario, and editor of The Advocates' Quarterly.