A federally funded study asking lawyers across the country to comment on the competency and biases of more than 1,000 judges has stirred up a hornets' nest in the legal community.
Apprehension is running high that the results could be used to discipline or discredit judges whose leanings on controversial criminal law issues or the Charter of Rights run counter to the conservative philosophy of the Harper government.
The political scientist who helped develop the project, Lori Hausegger, said the backlash came as a shock.
"I think there is a whole debate going on about the tie to judicial independence and what tie there could be," Prof. Hausegger of Boise State University said in an interview. "I think some people are still nervous about what on Earth we are doing. We never in a million years thought that people could misinterpret it the way they did.
"I think that given the firestorm we seem to have stirred up, we are hoping for a high number of responses so that we can get a reasonable number per judge," she said.
Six hundred lawyers have responded so far, but the response rate is drying up. Late last week, Ontario's Ministry of the Attorney-General instructed prosecutors that it would be inappropriate to participate. Some provincial law societies have also expressed concern that it could violate their codes of professional conduct for a lawyer to critique judges.
"Asking people to evaluate judges seems to have hit a nerve," said another of the researchers, Brock University political scientist Matthew Hennigar. "We're trying to be thorough and really cast the net wide ... but the downside is that more people find out about it, and some are not happy."
The study, which was funded by the federal Social Sciences and Humanities Research Council, asked 3,000 lawyers to critique one or more judges they had appeared in front of at some point in the past.
In e-mails sent out last week, they were asked to evaluate the judge's legal knowledge, courtroom demeanour, fairness, temperament and willingness to buck public criticism. They were also asked to state whether the judge favours accused criminals; male or female plaintiffs; or litigants who challenge laws using the Charter of Rights and Freedoms.
Yesterday, the website that contained the survey questions had been temporarily shut down and replaced with a message saying it is being modified, "to better emphasize that we will be reporting overall statistical trends, not the results for individual judges."
Earlier in the week, however, Prof. Hausegger and Prof. Hennigar said there was a possibility that results about individual judges might be circulated.
"In part, it is how robust the findings are," Prof. Hennigar said in an interview. "I think our main concern was: Do we have enough robust findings to do it? That, I think, is going to be deciding factor, to be perfectly honest."
He acknowledged that some within the legal community were worried "that this was going to turn into a kind of outing of particular judges who have bad evaluations." Others, he said, did not see this outing as necessarily being a bad thing.
"They thought that the importance of the study was precisely that it would identify weaknesses in the system and how to fix them," he said.
Prof. Hennigar said the researchers did give consideration to conveying specific results exclusively to the judges involved, "but I think that defeats the purpose. If no one else sees it, you don't need to pay too much attention to it."
Both said they hope the results will shed light on whether judicial appointment practices adopted since 1988 have improved or harmed the quality of the judiciary.
The professors - along with a third colleague, University of Guelph political scientist Troy Riddell - employed a research staff to compile a list of every judge who was appointed by the federal government between 1989 and 2008. Then, they used a computerized search to identify lawyers who had appeared before each one.
In a letter to each lawyer, the researchers said that the identities of each respondent would be kept confidential. "Survey responses will be aggregated and analyzed with the goal of presenting the findings in scholarly papers and books," they said.
What the survey asked
Three samples from a survey that was sent out last week to 3,000 lawyers appear below. The survey identifies judges, and asks respondents to describe their temperament, abilities, legal knowledge, and fairness, as well as their leanings toward categories of litigant.
1. More prone to support the accused (motions, findings of guilt, sentencing recommendations and so on)
2. No discernible pattern
3. Less prone to support the accused (motions, findings of guilt, sentencing recommendations and so on)
1. More prone to support the female
2. No discernible pattern
3. Less prone to support the female
Canadian Charter of Rights and Freedoms
1. More prone to support the rights' claimant
2. No discernible pattern
3. Less prone to support the rights' claimant
"I think that given the firestorm we seem to have stirred up, we are hoping for a high number of responses so that we can get a reasonable number per judge."
Prof. Lori Hausegger of Boise State University
"Asking people to evaluate judges seems to have hit a nerve."
Brock University political scientist Matthew Hennigar