Reviews

Courtroom Casino

 

“The mandate of the Canadian Judicial Council is to strengthen public confidence in our justice system.”  This is how the Canadian Judicial Council (CJC) – the federal agency responsible for enforcing the conduct standards of federally appointed judges – describes its mandate.  Let’s examine how well the CJC is doing in pursuit of its mandate.

More than a decade ago, litigators were complaining to me that walking into a Court of Queen’s Bench courtroom in Alberta was like walking into a casino.  They claimed that, even if the evidence was incontrovertible in support of a case, they could not tell clients that the probability of success was much more than 50%.  They claimed the range of competence and work ethic of judges was too wide to give them any ability to forecast outcomes. In short, it was much like rolling the dice.  

At the time, I assumed there was some measure of exaggeration of the gambling risk associated with the Court – I expected the powers that be would ensure no such ‘casino’ would exist.  I trusted it.  I now know better.

Having spent years in a never-ending divorce process which has included mediation, arbitration and more than a dozen court hearings, several of which ended with incomprehensible outcomes, I have borne witness to this ‘casino’.  I’ve also now heard many other credible stories detailing judicial misconduct.  I’ve seen the CJC dismiss credible complaints.  I’ve heard from many litigators and members of the public that they have lost trust in the justice system.  That is disturbing given the justice system is an important foundation for a well-functioning society.  If the litigators and public cannot trust the justice system, where does that leave us?

Having witnessed and heard about the performance gap between the competent, diligent judges and those that are not, I began to wonder in late 2019 just how widespread the issue is.  So, I set out to interview more than 50 experienced, respected and credible people representing the range of participants in the justice system in Calgary, Canada.  My question, quite simply, was “who are the strong, intermediate and weak performers, and what do the strong and weak judges do that qualifies them to land in their ranking?”  It was obviously key to ensure survey results related to judicial conduct rather than simple dissatisfaction with judgments.   I wasn’t interested in the wins and losses of survey participants; I was interested in the fair administration of justice.

The survey results are remarkable – both to the upside and downside.  It is remarkable how few judges are ranked in the strong performer category and how many are in the weak performer category.  It is also remarkable how well regarded some of the recently appointed judges are, and how poorly regarded some of the long-term judges are, not to mention that most of the weak performers are of a similar make and model.  Some of the judges referenced by survey participants are based in other centres in Alberta, though have been visiting judges in Calgary.  The lowest ranking judge is based outside of Calgary.

The attributes of the strongest performing judges consistently include: 

• read the filed documents and are prepared for hearings;

• remain unbiased;

• ask good questions, seek to understand positions and parse facts;

• diligently assess evidence; and

• reasonable application of the law.

Concerns levied against the weaker performing judges include: 

• don’t read the filed documents clients have paid thousands of dollars to file before handing down judgments;

• lazy, or exhibits disinterest in fulfilling responsibilities;

• exhibits clear biases;

• an inability to understand or factor in key evidence;

• corrupt, abuses power;

• takes an inordinate amount of time to issue reserved judgments;

• failure to deal with those that consistently ignore prior judgments (e.g. disclosure orders), thereby allowing processes to be unnecessarily protracted;

• failure to address unethical or obstructionist behaviour by lawyers and litigants (e.g. if a comment is made that is just gaslighting, and proven by the opposing side to be so, then the person making the comment should be heavily penalized);

• creates facts not in evidence to support a judgment;

• communicates privately/unilaterally with one of the parties, not jointly with both;

• socializes with lawyers that appear before them without declaring a conflict of interest;

• failure to treat each party fairly and equally;

• failure to uphold the Practice Directions (i.e. if hearsay is not permitted to be filed, people should not be able to do it as all it does is benefit the ones playing fast and loose);

• disrespectful, demeaning, and dismissive comments;

• failure to reasonably apply the law; and

• harbours a clear misunderstanding about whom the system is designed to serve.

I have personally witnessed many of these attributes and shortcomings.   I have also reported four of the weakest performing judges to the CJC to seek justice and test how well the oversight system is working.  In each case, my legitimate complaints – according to the CJC’s stated conduct standards, at least – were dismissed.  While there was no denial by the CJC that the misconduct in each case occurred, the Executive Director of the CJC, Michael MacDonald, determined that the conduct did not warrant removal of any of the judges.  As such, he was unprepared to take any action other than dismiss the complaints.

I had not requested removal of the judges.  Rather, I was seeking the fair administration of justice.  When I informed Mr. MacDonald that his response was akin to a police officer deciding not to charge a shooter if the victim did not die of the gunshot wound, I received no response.

I have since heard from many others who have made complaints similar to mine and who received similar responses.  It’s important to note, however, that everyone reports to someone.  Everyone is accountable for their conduct, including government-paid employees.  My requests of the CJC for information and data regarding judicial complaints and outcomes have also gone unanswered – a clear indication that the public interest is not paramount and that a cover-up or ‘sweeping the problem under the rug’ may be the preferred approach.

It does not take much governance, leadership or regulatory experience to know this is not a sustainable approach in the modern era.

I informed Justice Minister Lametti that the wide performance gap of judges, and the lack of oversight by the CJC demonstrates the need for an investigation and action plan to recalibrate the system in the public interest.  He informed me he did not want to get involved, despite it being his responsibility to appoint the justices and the accountability issues falling under his department.  I understand his need to remain neutral on judicial decisions; however, a system of accountability for judicial conduct needs to be in place and functioning in order to restore trust in the system.

I understand from some litigators that the savvy ones will seek to adjourn a hearing if they have concerns about the judge assigned to their case. Self represented parties or less experienced litigators would have no such knowledge, leaving them at a disadvantage.  I also understand there are no performance reviews of judges, let alone performance management processes; nor is there analysis of appeals data or judicial conduct complaints. 

It occurs to me that, with negligible oversight and an uneven playing field, it would be valuable for the public to at least know the names of the strong performing judges.  Publishing the names of the strong performing judges will serve to acknowledge those whose intellect and diligence set them apart.  It might also motivate others to aspire to alter their rankings.  As such, following is a list of the strong performing judges, as adjudicated by our survey participants:  K.M. Horner, D.B. Nixon, A.D. Grosse, C.L. Kenny, N. Dilts, S.M. Bensler, P.R. Jeffrey, S.L. Kachur, and D.A. Labrenz.  Many also pointed to J. Strekaf as a model judge, despite her having been on the Alberta Court of Appeal for some time.  Several concerns were raised with other Court of Appeal judges, however, the survey covered only the Court of Queen’s Bench judges presiding in Calgary, Canada.

While it is discouraging and unsettling that no serious oversight of judicial conduct is in place in an era of constant focus on accountability and transparency elsewhere in modern society, I hope that a forewarned public can tip the scale in its favour in the ‘courtroom casino’.  A recalibration of the justice system to serve the only interest it is intended to serve – the public’s – appears well overdue.  So does recognizing the exceptional judges who excel for the sake of the public interest in that system.

 

Terry L. Allen