Sunday, March 18, 2012

Judicial Arrogance not up for Review



The Vancouver Province is reporting that the judges don’t want their independence to be under review and claim that they need to educate the stupid public about what it means to be learned in law. No big surprise there. No doubt the police didn't want a civilian body to deal with police complaints either.

Before a judge becomes a judge they have to be a lawyer first. At one public demonstration about judicial unaccountability, one man comes up to me and says, all judges at one time were lawyers. At what point does a crooked lawyer become an honest judge? Is there some kind of epiphany that’s supposed to take place because I’m not seeing it.

Judicial arrogance is nothing new. Lawyers and judges think they are better than everyone else because they are learned in the law and the public isn’t. That makes them better in their eyes. That’s why they refer to each other as their learned friend in court. I remember getting in a fight with one lawyer once as we were arguing in front of the trial coordinator about what direction the judge gave us for our next court date. I referred to him as my friend then proceeded to state my objections.

The other lawyer snapped. He went on this tirade about this and that then insisted I wasn’t a lawyer, I was unrepresented. The trial coordinator was surprised as she thought I was a lawyer and told me I’m not allowed to refer to him as my friend which obviously gave the implication that I was a lawyer. I said I am the other party and I am representing myself. I have the same rights as any other lawyer. I can’t call him my friend? He’s not my friend? How about buddy? Can I refer to him as my buddy? You could see the steam spewing out of the other lawyer’s eyeballs. He was furious.

Right before that he tried to get me to withdraw my application. We had made cross applications in court. He saw I was winning so he withdrew his application. I said to the judge that I had also made an application and have already served the other party with it. If they want to withdraw their application, I want to proceed with mine. He freaked. He asked me to withdraw and I just said I’m sorry but I believe proceeding with my application is the right thing to do. He came unglued and started yelling and freaking out right outside the courtroom.

After he left a friend noticed me and said Hi. I jokingly said sorry you had to see that. They asked why the other lawyer was so upset. I said he’s losing and he knows it. He wants me to withdraw my application and I said no. I joked and said when the other lawyer starts yelling at you, that’s a good sign. It means you’re right and they’re scared so they want you to back down. When the other lawyer is laughing at you, that’s isn’t a good sign. It means you’re screwed.

Aside from being arrogant, judges don’t want to be accountable because they don’t see interpretation of the law as a survey of public opinion. On the surface that argument has merit. Interpretation of the law isn’t a matter for Pontius Pilate to survey the mob. However, we do have a problem and their arrogant denial of that fact isn’t going to help solve the problem.

Right now we have no real mechanism to get rid of a bad judge. We need one. Peter Leask is a prime example. It doesn’t take a brain surgeon to understand what justice is and isn’t. Giving someone house arrest for trafficking cocaine is not right. I don’t care how much watered down jurisprudence you’ve memorized. The law answers to natural justice. Most lawyers and many judges have no concept of natural justice whatsoever.

I remember back when we started this blog and website there were several demonstrations calling for more judicial accountability. One group kept showing up with signs that boldly declared : “Judges are the Problem.” They printed up T-shirts that said “Revolving Door makes Judges Accomplices” and “100% Contempt for BC Judges.” Their beef was property theft.

They had a guy named Jamie Pool in their neighborhood who kept ripping them off. The police knew who he was. Every time he was arrested he was given less time served not more. This infuriated the residents, understandably so.

In the United States they have a policy called three strikes you’re out. After making the same mistake three times, you get the book thrown at you. In contrast the VPD launched a proposal called 30 strikes and you’re out. As ludicrous as that sounds, they weren’t kidding. Our current system has a huge problem with chronic offenders. That still needs to be addressed.

Some people, mostly judges, claim you’re not allowed to criticize a Judge. Retired Judge Wallace Craig disagrees. He has seen the judicial pendulum of justice swing in the wrong direction and he claims that criticizing judges who make bad decisions is a moral duty. I agree. If our arrogant court judges aren't publicly accountable, then we don't have a democratic system. In the United States court judges are elected and can be impeached. Here they are untouchable.

6 comments:

  1. Great story. Unbelievable the chutzpah of these folks, huh?

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    1. Knowing that judges are elected in the States and that judges can be impeached in the States, their bold arrogance here is rather shocking.

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  2. I'm sorry you had a negative experience with what sounds like an arrogant lawyer. You also do not think highly of Peter Leask, which is fair comment. However, to label all lawyers and judges as arrogant is completely unfounded.

    To say all judges and lawyers are arrogant and dishonest is equivalent to stating all physicians and surgeons practice medicine to exercise their god complex.

    You have complained on your blog on numerous occasions about the authority exercised by parliament under the omnibus crime bill. However, ironically, one of the primary concerns about the Bill is that it takes away much of the judges' judicial discretion. Judges currently have the ability to stay criminal charges and prison sentences through alternative measures programs, which would be struck down by mandatory minimum sentances.

    Why not balance your perspective by mentioning someone like Justice Anne Molloy, who recently struck down the ridiculous three-year minimum sentence for a first offence of illegally possessing a loaded gun. Although idiotic, clearly Mr. Smickle doesn't deserve a three year sentence.

    Kudos to good judges who challenge bad law and take a stance against legislative authority that is unrepresentative of Canadian values.

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    1. There are good judges. I remember one who virtually saved my life. My objection to the arrogance is the renewed claims the three judges made in the article that Judges should not be accountable to the public. I disagree with their position and feel their position is dripping in arrogance. Judges striking down mandatory minimum sentences doesn't get me feeling all warm and fuzzy. I think there should be mandatory minimum sentences for selling crack or committing murder. I vaguely recall hearing something about the case you are referring to. The posing with a loaded gun isn't a bright thing to do unless you're at the gun range. Yet if the mandatory minimum sentence for that was upheld, maybe people would think twice before doing it. The case you site is an example of how arrogant judges over rule the democratic rights of the public. Is the public free to elect a democratic government? When the judges refuse to uphold the law those democratically elected governments enact it is a prime example of judicial arrogance where a Judge thinks they are above the law when in reality they are paid to uphold the law. First they criticize the public for not knowing the law. Now they mock the law by claiming they know better. If that is not arrogance, I don't know what is.

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  3. Do you honestly believe that judges should not be permitted to question parliamentary authority? If so, it would create a situation where parliament could act with complete impunity, which is completely contrary to your original argument.

    Are you suggesting an end to the SCC’s ability to rule against government in such cases as Egan v. Canada? I suppose those “arrogant” SCC judges should have maintained status quo and allowed the paramountcy doctrine to apply to the Old Age Security Act, diminishing the status and rights of homosexual couples in Canada, rendering them second class citizens.

    While we are at it, we could remove the judicial discretion and authority that allowed for rulings in cases like R. v. Morgentaler. Since the provincial governments are democratically elected, why not allow the legislature to operate in accordance with S. 92 of the Constitution Act completely unchecked, even when enacted provisions infringe upon S. 7 Charter rights, clearly putting the health and safety of women at risk.

    You are taking a somewhat irrelevant sound bite from three judges who are - as you state - likely arrogant, and applying this rationale to the field of law exhaustively. I know it isn't easy to not allow our personal bias cloud our views on the entirety of a subject, but you are perpetuating the very hypocrisy you aim to address on your blog.

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    1. Do I honestly believe that judges should not be permitted to question parliamentary authority? Not when the government makes a law that violates the Charter of Rights. In the US the Bill of Rights and the Constitution is the highest law of the land that each subsequent government is bound by. If a democratically elected government made a law that violated the Constitution then that law would be illegal and the courts over turning that law would be in harmony with natural justice. Yet if a democratically elected government creates a law that doesn't violate the Charter of Rights, then the courts should not have the power to over turn that law because that act would not be an answer to the higher law it would be a judge who disagrees with a political position. Giving the courts that kind of power is wrong.

      If for example a democratically elected government created a law that said they wanted to ban Judaism or as they recently tried in California to ban circumcision, even if the democratic majority of the people wanted to ban Judaism and discriminate against followers of that faith, then that law would be illegal because it violated the Bill of Rights. It would also for obvious reasons be wrong. Discriminating against any religion or lack thereof is wrong. People don't like to use the term right and wrong but those terms are what frames our laws. Someone thought it was wrong to murder and steal so they created laws banning it.

      Abortion is another passionate and controversial issue. At 6 weeks pregnancy, abortion stops a beating heart. After six months pregnancy mother is induced and the baby is delivered. Scissors were driven into the babies head right before it came out of the womb. That was archaic. Now we give them an injection so they are delivered still born. Yet it really is the same thing. There are a lot of legitimate arguments about how late term abortions as a form of birth control are dangerous to a woman's health. If it's a tubal pregnancy or if the health of the mother is in question, abortions are automatic. Abortion in the case of incest or rape is a very private and personal matter. Yet I personally very much oppose abortion as a form of birth control and don't support late term abortions at all. Having a judge tell me I have to accept that and pay for that is in my opinion wrong. Gay's should be allowed to get married but every church should not be forced into performing that ordinance if they are not comfortable with it. Gay couples should get pensions and spousal benefits just like heterosexual couples. No one like a government or a judge to tell them how to think on a moral position.

      The point that I made and still raise as a concern is that judges in Canada are not accountable to the public and don't want to be when judges in the United States are. Judges are elected in the US. Judges can be impeached in the US. I think those are good things.

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