A prominent Newfoundland defence lawyer, Jerome Kennedy, faces professional discipline for allegedly slurring the entire judiciary.
A disciplinary hearing before the Law Society of Newfoundland set for next week has been kept under tight wraps since it was spawned by a 2003 complaint from Chief Justice Derek Green of the trial division of the Newfoundland Supreme Court.
The unusual proceeding highlights a potential clash between judicial impartiality and a lawyer's right to speak freely on issues of public importance.
In 2003, Mr. Kennedy, who has helped bring to light several high-profile wrongful murder convictions in the province, said trial judges "who don't know what they are doing" rank as one of many reasons for wrongful convictions.
"Part of this is as a result of political appointments," Mr. Kennedy said in a speech that was carried in media reports.
"Part of it is as a result of intentional or unintentional biases -- in other words, the forming of a belief in guilt before all the evidence is in."
He made his comments on the eve of an inquiry into three notorious Newfoundland wrongful convictions, involving Greg Parsons, Randy Druken and Ronald Dalton, all cases that Mr. Kennedy worked on.
Mr. Kennedy took umbrage at the inquiry's refusal to examine the role that trial judges and jurors may have had in the cases.
In a letter of complaint to the Law Society of Newfoundland, Chief Justice Green said that the comments could destroy public faith in the impartiality of judges.
"These imputations strike directly at the heart of the judicial oath," he said. "If true, they would be grounds for removal from office of every judge affected by the allegations.
"My concern with Mr. Kennedy's comments is that they appear to be a generalized condemnation of the judges of the Supreme Court, reflecting on their general competence as well as suggesting not only inherent and systemic bias, but also deliberate -- i.e. intentional -- partiality and close-mindedness."
After Chief Justice Green's complaint, Mr. Kennedy wrote to the law society to say that he never intended to disparage the judiciary as a whole, and had simply been pointing out that their role deserves scrutiny.
Bob Simmonds, Mr. Kennedy's law partner, defended his colleague's right to speak out.
"He said that some appointments are political," Mr. Simmonds said in a telephone interview. "No lawyer in Canada would deny that is a fact."
Experience also shows that some judges indeed fail to grasp the law or prejudge cases, Mr. Simmonds added.
He said the disciplinary hearing is "an absolute farce" that could chill other lawyers into silence.
"It is unbelievable that the law society would proceed with this complaint," Mr. Simmonds said. "Critical comments are made about lawyers all the time. Does it mean that, as counsel, we have to keep our mouths shut?
"Because if it does, I'm in the wrong profession.
"On the one hand, Jerome is sometimes very forthright and blunt," Mr. Simmonds added. "On the other hand, he is dead right about this. Somebody had to say it."
Mr. Simmonds said there is rising public concern in Newfoundland about the province's record of judicial miscarriages, and that any attempt to suppress a champion of the wrongly convicted will be deeply unpopular.
"How can such an integral part of the trial process not be examined, when we've got more wrongful convictions across Canada than I have fingers and toes?" Mr. Simmonds said.
The ultimate punishment for misconduct is disbarment.
However, if a disciplinary panel rules against him, Mr. Kennedy is more likely to face a reprimand or suspension, and perhaps an award of legal costs against him.