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The Ontario Court of Appeal in Toronto, in April, 2019.Colin Perkel/The Canadian Press

The age-old tradition of restrained, polite speech by judges is being challenged at Ontario’s highest court on Tuesday.

A justice of the peace, Julie Lauzon of Ottawa faces dismissal from the bench for publishing a strongly worded criticism of Canada’s bail courts in a comment piece she wrote for the National Post newspaper in 2016.

“I can no longer call it a court of law,” she wrote of the bail court she presided over. “It is a disgrace.”

A disciplinary body recommended two years ago she be dismissed from the $172,000-a-year post, saying she had harmed public confidence in the judiciary by her tone and her “fervency,” her use of a national newspaper as her forum, and her refusal to apologize. A lower court declined to review the decision. She sat until two years ago, when a senior judge placed her on “unassigned” status, while still being paid.

The case tests the limits of judicial speech. Canadian judges have been disciplined over things they have said – like the Alberta judge who asked a sexual-assault complainant in court why she didn’t keep her knees together – but hardly ever over public criticism of the functioning of a judge’s own courtroom. Published codes of conduct tend to deal with the issue only in the broadest terms, admonishing judges to maintain their impartiality.

Now Justice Lauzon is asking the Ontario Court of Appeal to find that judges and justices of the peace have the independence and the freedom of speech to go beyond the politesse and speak their minds.

In a court filing, her legal team says the vehemence of her criticism was meant to convey the severity of the problems – including a failure of bail so drastic that a majority of inmates in provincial jails are presumed innocent, and are simply waiting for trial.

“Any ordinary reader of the article would have appreciated that it was a cri de coeur from a front-line participant in a broken system … and approached it on that basis, with tolerance, discernment and critical judgment,” lawyer Lawrence Greenspon writes in a legal argument on behalf of Justice Lauzon.

He mocked the notion of more traditional routes of criticism – “an academic article with a readership of dozens, or … a talk in a windowless university seminar room to a handful of listeners.”

The Charter of Rights and Freedoms protects the right to “reasonable bail,” which is not to be denied without just cause. The purpose is to ensure that people presumed innocent are at liberty before their trial.

Justice Lauzon said in her article that prosecutors and defence lawyers were presenting her with conditions of release as if they were a fait accompli. But people in jail will agree to “just about anything to regain freedom,” she wrote, so she insists on probing whether the conditions are necessary.

“Pity the JP who dares ask for a justification of those conditions,” she wrote. She said she has had a prosecutor turn his back on her and tell defence lawyers all deals were off when she was presiding. She also said she had a prosecutor scream at her and throw a “temper tantrum” after she asked questions.

“Prosecutors attempt to wrestle jurisdiction from the court, through a variety of unacceptable tactics,” she wrote. The heads of federal and Ontario prosecution services, and the president of a provincial prosecutors’ association, filed complaints.

A year later the Supreme Court of Canada, in a case separate from the Justice Lauzon matter, highlighted what it said was a nationwide problem: Bail law was being applied inconsistently; unconditional release was supposed to be the default position, and prosecutors needed to justify the conditions they wished imposed.

In its ruling on Justice Lauzon, the disciplinary panel said judges need to show “dignified restraint,” a phrase the Supreme Court used in 2009 in upholding the suspension of a lawyer who wrote a nasty private letter to a judge. The author was Justice Rosalie Abella, who later published a speech excerpt in The Globe and Mail headlined, “Our civil justice system needs to be brought into the 21st century.” While on an appeal court, Michael Moldaver gave a speech calling criminal-court delay a “cancer.” He was later promoted to the Supreme Court.

An Alberta judge, Robin Camp, was recommended for dismissal after he asked a sexual-assault complainant on the witness stand in 2014 why she didn’t keep her knees together; he resigned. An Ontario judge, Bernd Zabel, wore a Make America Great Again hat into court in 2016, and was suspended for 30 days.

The closest parallel to Justice Lauzon’s case may be that of Quebec judge Andrée Ruffo, who ran afoul of disciplinary bodies and ultimately resigned in 2006, in part over her repeated outspokenness about the child-welfare system.

Brian Gover, a lawyer who has defended judges in disciplinary proceedings, said it would have been appropriate for Justice Lauzon to take her concerns up internally with senior judges.

“Imagine if the Crown attorneys’ office were to respond by writing its own op-ed piece, and you then had this debate playing out in a newspaper … and then the public forming its own views based on that. We simply can’t allow that.”

But Bruce Ryder, a professor at Osgoode Hall Law School, said that “judges should, and often do, speak publicly about problems in the justice system, drawing on their unique insider knowledge.”

More weight should have been given to the value of this kind of expression, he said. “The best way to restore public confidence in the bail system is to fix the bail system.”