Accountability missing for an Ontario judge ... even though he edited the record

Even though judicial appointments are for life and in spite of the fact there is no real accountability for "subtle" misconduct, there is accountability for those judges who blatantly break the rules ... at least in theory. Unfortunately, it seems an Ontario Family Court judge is not being held to the same standards as others for whatever reason.

The Toronto Star reports today that Justice Marvin Zuker acknowledged he committed judicial misconduct when he altered court transcripts in 2005, after learning they were to be used in an appeal case. Because of his "clean" record Justice Zuker was let off with a warning even though the panel reviewing the case could have ordered the removal of Zuker from the bench.

While I appreciate the principle of "forgiveness" especially when persons who have done wrong take responsibility, judges need to be held to higher "standards". This is especially when they demonstrate that they can be motivated for self interested reasons to break fundamental rules upon which depends our justice system and our society at large.

This is especially so because there already exists a lack of any accountability on the basis of decisions by judges, especially those preceding over the the family court. Arguably, many family court judges violate the Charter of Rights and Freedoms everyday by making decisions about child custody on the basis of gender rather than merit.

It is important to consider in all of this that judges are typically political appointees and former lawyers, some of whom hold their allegiances to the legal industry in higher regard than to the principles of equitability and justice. And, all of this occurs in a society where the State offers the same discretion and trust to judges that Plato might only have offered to his philosopher kings. The Guardians' innate ability to be solely about "the collective interest" makes proponents of our current judicial system look naive or perhaps manipulative. As evidenced here, our judicial appointees are not at all living up to the level of altruism that would need to be in place to warrant such little accountability.

Whether the panel made the right decision here or not, I leave that up to others to decide. From my perspective, this case does highlight once again the extent there is inadequate accountability for judges, especially when it comes to conduct that would typically result in a much more severe rebuke for anyone else in our society.

Judges ... more proof we all put our pants on one leg at a time.

I read this article on the CBC site. It describes both an (ex) judge and prosecutor in Colorado who have shown themselves to be human, rather than the absolutely benevolent persons the system relies on them being given existing accountability structures (or an absence of adequate accountability structures)

Since jurisdictions south of the boarder make lawyers judges in a slightly different way than in Canada, I take from this that improvements in how judges are chosen and are held accountable is a more universal phenomenon.

2/3 of Canadians want elected judges: judiciary/lawyers call it a bad idea.

I read earlier today the results of a Strategic Counsel poll suggesting that 2/3 of Canadians favour elected judges. It did not surprise me that both Canada's legal industry and the judiciary immediately came out with reasons as to why this is a very bad idea.

The Globe and Mail reports that Ontario Chief Justice Roy McMurtry said in an interview that he couldn't see how impartiality could be maintained in a system of elected judges: “it could really destroy the very best traditions of an independent judiciary. I think it would be a tragic initiative for the administration of justice.”

I also read Devin's blog today from the roll ... should I be surprised (since we agree to disagree on this subject) that he would support Chief Justice McMurtry's angle by posting the blog title: "Keep Justice Blind"?

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Even the Conservative Party has stopped calling for elected judges now that they are in power, in spite of its previous concerns about the power of judges in Canada. Former federal justice minister Vic Toews said last year: “That's just not our tradition…I actually think our system is pretty good. It just needs to be fixed.” This is very convenient for a party led by a man whose private objective is no less than reforming the ideology of Canadians via massive decentralisation and institutionalised conservatism.

I find it alarming that those with the most to lose from judicial reform frame this sign of discontent by Canadians with our (arguably) unaccountable system of judicial appointments in such a narrow/fear based manner. Would anyone expect lawyers and judges to say anything against the "love in" between lawyers and judges? Among other things, our current system acts as if judicial appointees are like Plato’s Guardians and beyond self-interest. Our judges are appointed by the political party in power, they are appointed for life and they are not accountable to anyone. The only way to remove a judge from the bench is with the agreement of the Governor General, Parliament and the Senate and this has never been attempted. Does this not sound like a blank cheque?

Furthermore, this unprecedented power gives Supreme Court Justices in particular in essence a "veto" as strong or stronger than the notwithstanding clause on matters of Canadian public policy via strategic jurisprudence. When the by-product of specific jurisprudence can provides a marked boost to revenues collectable by the legal industry, there is reason for concern. After all, our judges all began their careers as lawyers and have been known to make controversial decisions that benefit their “brethren“ sometimes more obviously than others.

As a means of demonstrating just how “on the mark” are the instincts of many Canadians on this topic - who know there is a problem with a lack of accountability but do not know exactly what is the solution - I republish gender the discrimination ratings of 22 Ontario Court of Appeal Justices over 10 years (1996-2006). More than 800 cases were reviewed to determine the results. The methodology of the study is explained here and here:

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D = % Female Wins - % Male Wins, Discrimination count, Category (or extent gender was a factor in judicial decisions on matters pertaining to the family)

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For Abella JA D = 76.5 - 6.4 = 70.1 % (heavy)

For Feldman JA D = 72.7 - 13.3 = 59.4 % (heavy/high)

For Charron JA D = 70.0 - 7.4 = 62.6 % (heavy)

For Simmons JA D = 80.0 - 23.8 = 56.2 % (high)

For Lang JA D = 50.0 - 0 = 50.0 % (high)

For Wheiler JA D = 77.8 - 26.1 = 51.7 % (high)

For McMurtry CJO D = 69.9 - 40.0 = 29.1 % (moderate/high)

For O’Connor DCJO D= 80.0 - 30.0 = 50.0 % (high)

For Goudge JA D = 77.8 - 39.1 = 38.7% (high)

For Borins JA D = 70.0 - 27.3 = 42.7 % (high)

For Rosenburg JA D = 71.4 - 33.3 = 38.1 % (high)

For Armstrong JA D = 66.7 - 26.3 = 40.4 % (high)

For Moldaver JA D = 52.6 - 6.7 = 45.9 % (high)

For Macpherson JA D = 62.5 - 14.3 = 48.2 % (high)

For Gillese JA D = 85.7 - 50.0 = 35.7 % (high)

For Juriasz JA D = 60.0 - 0.0 = 60.0 % (high/heavy)

For Blair JA D = 50.0 - 9.1 = 41.9 % (high)

For Cronk JA D = 66.7 - 42.1 = 24.6 % (moderate)

For Sharpe JA D = 33.3 - 11.7 = 21.3 % (moderate)

For Catzman JA D = 63.6 - 43.7 = 19.9 % (moderate)

For Labrosse JA D = 61.5 - 45.0 = 16.5 % (moderate)

For Laskin JA D = 55.5 - 47.0 = 8.5 % (slight)

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The data show that Justice McMurtry himself was rated as favouring female litigants close to one-third of the time more often than male litigants on matters pertaining to the family.
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That is neither here nor there. What is of most concern here? The two worst offenders according to the study,- Rosalie Abella and Louise Charron - now sit on the Supreme Court of Canada. Because of the current structure, does this not mean that Justice Abella and Justice Charron are two of the most powerful Canadians when it comes to shaping our public policy? ... stronger than Parliament both collectively and individually?
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It seems Canadians are perhaps "right on the mark" when it comes to our being uncomfortable - sniffing out - matters that lack sufficient accountability, such as this. After all, would any of us really buy the argument that any of our Justices have "philosopher-king" like attributes that makes accountability unnecessary? Or, would anyone dare say the adversary system, rules and procedure keeps judicial decision making perfectly in check?

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Canadians know there are problems with the current system of judicial appointments. If a poll is worded so that Canadians understand "elected" to be perfectly congruent with "accountable", the framing of this proposed solution by Justice McMurtry, Devin and Vic Toews as having similar baggage to that of the American system sounds like spin to me. There are many ways to make our judiciary more accountable without any drastic risks. It just takes political will and courage to stand up to those who benefit from the status quo.