Justice Rosalie AbellaFRED CHARTRAND
The Supreme Court of Canada has given lawyers a green light to criticize judges with toughly worded passion, provided they do not veer into the sort of invective that would earn public disapproval.
In a decision that provides badly needed guidance to the legal profession, the court said lawyers enjoy a constitutional right to vent their spleen about judges or the justice system.
They will be subject to professional discipline only if they become unduly carried away with their invective.
In a 7-0 ruling, the court said judges are not fragile flowers unable to withstand withering critiques from the lawyers who argue before them. However, it said the public expects a certain amount of decorum.
"Lawyers should not be expected to behave like verbal eunuchs," Madam Justice Rosalie Abella said. "They not only have a right to speak their minds freely, they arguably have a duty to do so. But they are constrained by their profession to do so with dignified restraint."
The court said that when it comes to professional discipline, the yardstick used to measure harsh criticisms of judges or the justice system will be "the public's reasonable expectations of a lawyer's professionalism."
"Lawyers potentially face criticisms and pressures on a daily basis," Judge Abella said. "They are expected by the public, on whose behalf they serve, to endure them with civility and dignity. This is not always easy where the lawyer feels he or she has been unfairly provoked, as in this case. But it is precisely when a lawyer's equilibrium is unduly tested that he or she is particularly called upon to behave with transcendent civility."
The question of civility in the courtroom is a major, ongoing issue within the legal profession.
David M. Tanovich, a law professor at the University of Windsor, said the decision ushers in a new era for lawyers who feel a need to pointedly criticize the system they work within.
"Our history has taught us that powerful justice actors, whether they be the police or judges, often use the system to silence criticisms," Prof. Tanovich said.
Mr. Tanovich said that lawyers have regularly come under pressure from the courts or their professional bodies for adopting principled stands against police misconduct or institutional racism within the justice system. Provided they do not go overboard, he said, these lawyers can now be confident of their right to speak out.
"There is a professional obligation on lawyers and legal academics to speak out against injustice and to do so in a way that brings public attention," he said. "This can often requires colourful or strong language to make the point. The importance of [this ruling]is that the Supreme Court recognizes this obligation and warns against too quickly using discipline to quell criticism."
The appellant in the case, Gilles Doré, was a Quebec lawyer who represented a client on June 21, 2001, at a proceeding presided over by Quebec Superior Court Judge Jean-Guy Boilard.
Justice Boilard took issue with some of Mr. Doré's submissions during the proceeding, chiding him that, "an insolent lawyer is rarely of use to his client."
The judge later dismissed Mr. Doré's application as having been ridiculous, and took another shot at Mr. Doré for his "bombastic rhetoric and hyperbole." Judge Boilard said Mr. Doré's fixation on what he called a narrow vision of reality had not served his client well.
Mr. Doré responded with a private letter to Justice Boilard in which he stated: "I have just left the court. Just a few minutes ago, as you hid behind your status like a coward, you made comments about me that were both unjust and unjustified, scattering them here and there in a decision, the good faith of which will most likely be argued before our Court of Appeal."
Mr. Doré accused Judge Boilard of ducking out of the courtroom before Mr. Doré could respond.
"If no one has ever told you the following, then it is high time someone did," he wrote. "Your chronic inability to master any social skills (to use an expression in English, that language you love so much), which has caused you to become pedantic, aggressive and petty in your daily life, makes no difference to me; after all, it seems to suit you well.
"Your deliberate expression of these character traits while exercising your judicial functions, however, and your having made them your trademark concern me a great deal, and I feel that it is appropriate to tell you."
Mr. Doré told Judge Boilard that his legal acumen was dubious and accused Judge Boilard of being prone to launching shamefully "ugly, vulgar, and mean personal attacks" on the unsuspecting.
"I would have very much liked to say this to your face, but I highly doubt that, given your arrogance, you are able to face your detractors without hiding behind your judicial position," Mr. Doré wrote. "Worst of all, you possess the most appalling of all defects for a man in your position: You are fundamentally unjust. I doubt that that will ever change."
The following day, Mr. Doré wrote to Quebec Chief Justice Lyse Lemieux and asked that he not be required to appear before Justice Boilard in the future since he was concerned that he could not properly represent his clients before him. He later complained to the Canadian Judicial Council about Justice Boilard's conduct.
A copy of his letter was forward to the Syndic du Barreau, which filed a complaint against Mr. Doré 's behaviour. The complaint stated he had violated his professional obligation, "to bear the stamp of objectivity, moderation and dignity."
The judicial council heard the original complaint and ultimately decided that Justice Boilard had made insulting and unjustifiably derogatory remarks to Mr. Doré.
"To describe a procedure before the court as 'totally ridiculous' is unnecessarily humiliating," it said. "The evidence reveals a flagrant lack of respect for an officer of the court, namely Mr. Doré, who was nevertheless at all times respectful to the court."
"It is the panel's opinion that in so abusing your power as a judge, you not only tarnished your image as a dispenser of justice, but also undermined the judiciary, the image of which has unfortunately been diminished. The panel reminds you that your independence and your authority as a judge do not exempt you from respecting the dignity of every individual who argues a case before you. Dispensing justice while gratuitously insulting counsel is befitting neither for the judge nor for the judiciary."
The Council said it had reviewed several other decisions and determined that Judge Boilard has a penchant for levelling personal, denigrating attacks against lawyers.
Judge Boilard responded by immediately removing himself from a complex criminal trial involving the Hell's Angels, a trial related to the case Mr. Doré had argued before him.
The Attorney General of Quebec requested the Canadian Judicial Council conduct an inquiry into the propriety of his recusal. The Judicial Council concluded that it had not constituted misconduct.
Meanwhile, Mr. Doré's proceeding before disciplinary council of the Barreau du Québec resulted in a finding that Mr. Doré's letter to the judge was "likely to offend and is rude and insulting"
It said the Charter of Rights' guarantee of free expression had little relevance, and that the letter had been replete with "opinions, perceptions and insults." It said that Justice Boilard's conduct could not be relied on as justification for the letter, and that lawyers and judges must greatly restrict their verbal criticisms in a system that requires them to work together in the interests of justice.
Based on what it found to be the seriousness of Mr. Doré's conduct and on his failure to show remorse, the panel suspended Mr. Doré's ability to practise law for 21 days as a punishment.
On appeal, the Superior Court of Quebec upheld the constitutionality of the disciplinary body's decision, including its view that Mr. Doré's letter did not constitute a private act. The court also upheld his 21-day suspension.
The Quebec Court of Appeal later upheld the suspension as well. It concluded that, while Mr. Doré's right to free expression had been violated, the breach was minimal and could be justified in light of the professional body's obligation to protect the public interest - including the integrity of its judiciary.
Having already served his 21-day suspension, Mr. Doré did not appeal the penalty to the Supreme Court. Instead, he focused on whether his professional body had given sufficient weight to his right of free expression.
Writing for the court today, Judge Abella said that there is a public benefit in ensuring the right of lawyers to express themselves about the justice system in general – and judges, in particular.
In balancing the importance of open, forceful criticism of public institutions with the need for professional civility, "proper respect for these expressive rights may involve disciplinary bodies tolerating a degree of discordant criticism," she said.
"The fact that a lawyer is criticizing a judge _ a tenured and independent participant in the justice system _ may raise, not lower, the threshold for limiting a lawyer's expressive rights under the Charter," Judge Abella said.
She said that lawyers should not automatically be subject to reprimands when they criticize a judge or the judicial system. "Such criticism, even when it is expressed vigorously, can be constructive," Judge Abella said.
In Mr. Dore's case, his letter to Judge Boilard had gone beyond the public expectation of how a lawyer ought to conduct himself, Judge Abella said.
"His displeasure with the judge was justifiable, but the extent of the response was not," she said.
"In light of the excessive degree of vituperation in the letter's context and tone, the council's decision that his letter warranted a reprimand represented a proportional balancing of his expressive rights with the statutory objective of ensuring that lawyers behave with 'objectivity, moderation and dignity'."