A blue-chip crowd of several hundred jazz aficionados cheered and applauded at a swank Sunday night concert recently as Ontario Chief Justice Warren Winkler stood on stage and belted out part of an Ira Gershwin standard, I Can't Get Started.
One of the country’s top judges? Singing to a gathering of tuxedo-clad jazz freaks?
The scene, at a concert in his honour, signified more than just Chief Justice Winkler’s refined musical tastes. It was symbolic of the judiciary’s earnest attempt to shore up a shaky sense of public confidence.
In little more than a decade, judges have emerged from their cloistered chambers and – with varying degrees of discomfort – walked among the hoi polloi. Many are regulars on the speakers circuit and in classrooms. Some have taken to the airwaves to field questions and give media interviews.
“The whole judicial system depends on public confidence,” said Lance Finch, Chief Justice of British Columbia. “If you don’t have that confidence, people will ignore the courts and the law. … Eventually, you get anarchy.”
The Alberta Court of Appeal gave voice to those apprehensions just this week, warning the judiciary that its credibility has been damaged by the imposition of sentences that vary wildly for no apparent reason.
Not so long ago, a judge seeking a public profile, let alone explaining his legal worldview, would have been unthinkable. Lawyers ascending to the bench knew they were entering a cloistered world where social isolation was the price of membership. The First Commandment was: Speak only through thy judgments.
Judges can thank the 1982 Charter of Rights and Freedoms for yanking them out of their ivory tower. Once they began striking down laws that violated the Charter, a chorus of criticism erupted. Critics on the political right and some media outlets accused judges of being power-hungry activists bent on usurping the role of legislators. Some critics went so far as to propose that judges be elected.
Simultaneously, controversy blossomed over whether criminals were being sentenced too leniently. “There was a feeling that the judiciary hadn’t been active enough in trying to explain to the parties, the lawyers and to the general public what it was they were doing and why they were doing it,” recalled Mr. Justice Robert Carr of the Court of Queen’s Bench of Manitoba.
Unnerved, a new generation of judges contemplated two choices: continue to silently watch their credibility drain away or launch a counterattack.
Beverley McLachlin, Chief Justice of the Supreme Court of Canada and a media-savvy diplomat seen as a genuine leader by the bench, brought the issue into focus. Shortly after being appointed Canada’s top judge in 2000, she swept unannounced into a meeting of the Canadian Judicial Council and urged its startled members to draft a game plan.
They hired a consultant, The Strategic Counsel, to conduct a survey of the cream of the legal establishment in order to gauge its awareness of the judiciary and court structures. The results were shocking: “The lack of knowledge was astounding,” said a senior judge. “My God, it was unbelievable. If that was the level of knowledge among people who are supposed to know about these things, just imagine the ignorance of the average person in the streets.”
A decade-long marketing campaign ensued. Judges took to podiums, classrooms and the airwaves. B.C.’s Chief Justice at the time, Allan McEachern, created a website to answer questions from the public. His Provincial Court counterpart, Chief Judge Hugh Stansfield, launched a radio call-in show, as did Manitoba Provincial Court Chief Judge Ray Wyant.
Chief Justice McLachlin herself arranged to attend newspaper editorial boards to engage in off-the-record discussions and debate. Many judges obtained media training, while the rest were urged to read a booklet published by the Canadian Judicial Council filled with tips about dealing with the media and public.
Various judicial groups created instructional videos for schools, held forums to familiarize journalists with the court system and invited students to shadow them through a typical day in court.
Barry McLoughlin, an Ottawa-based media consultant who provides advice and strategy to the judiciary, said that
while judges continue to religiously avoid any discussion of a specific case, a growing number are willing to discuss the mechanics of judging and reaching decisions. They talk about life on the bench, and offer carefully worded views about problems that plague the justice system, such as overcrowded courtrooms, litigants who cannot afford lawyers and problems with legal aid.
“They realized: ‘We need to get out there and not leave a vacuum,’ but they also didn’t want to shoot themselves in the foot,” Mr. McLoughlin said. “They needed to understand the basis of a relationship with the media and the minefield you are walking through.”
The movement reached a high water mark last year when Mr. Justice Harvey Brownstone of the Ontario Court of Justice wrote a best-selling book on family law. This fall he went a step further, launching an Internet talk show, familymatterstv.com, that gets about 50,000 hits a day.
The novelty of a charismatic judge speaking in colourful terms about the strengths and weaknesses of the justice system made Judge Brownstone an overnight media star.
“I never, ever anticipated that the media would latch on to the book the way they did,” Judge Brownstone said. “I was on about 200 radio and TV talk shows in the first six months.
“When I became a judge, the culture was very clear,” he added. “You did not speak to the media. Ever. Judges were also very reluctant to speak out in a public way lest people think they were speaking for the whole judiciary.”
Judges are trained in how to write a judgment and place great emphasis on continuing judicial education. When crafting sentences, they take pains to explain how and why they have come to a particular decision – including the fact that no judge can depart from established sentencing ranges without very convincing reasons.
When students and citizens tour their courthouses, judges now make a point of explaining the factors that determine how someone convicted of a crime is sentenced. “At the outset, not surprisingly, these people are usually prepared to string ’em up,” Judge Carr said. “But at the end they are usually prepared to say they would have done exactly the same thing as the judge did.”
Still, the golden rule for judges who speak publicly remains the same: Never discuss an actual case. Even a minor offence, Judge Carr said, could lead to a negative reaction from colleagues.
A serious indiscretion would likely lead to a judge being chastised by his chief judge or even a judicial council.
“We are very acutely aware that what we do must reflect appropriately on the judiciary,” Judge Brownstone said. “I know that I am not there to entertain. I am there to educate. If you do something wrong, you are on your own.”Report Typo/Error
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