Saturday, 7 January 2017

We have a very serious judicial independence problem in Canada

Part One of Three: #Zabelhat

So, smack in the middle of the still-unfolding drama that was created by law professors around Justice Robin Camp, comes the news that Judge Bernd Zabel of the Ontario courts has been suspended for wearing a hat in court. And who made the #ZabelHat drama happen? Law professors.

Yes, you heard that correctly. A law professor, this time one at Osgoode Hall, who was not even in the courtroom, took offence to Judge Zabel's hat, and made a complaint. With who-knows-how-many complaints in queue made by ordinary people and lawyers who actually appear before judges about substantive matters of judicial conduct, once again a law professor can vault ahead and take down a judge while the rest of us can only fume impotently and vent our spleen writing futile complaints to the bodies that supposedly govern the judiciary.

Yes, I said "supposedly" govern. Because those bodies are now revealed by the two cases of Camp and Zabel to have no authority of their own at all. They crumble at the first sign of disapproval from within legal academe, whether that disapproval is merited or not.

In both cases, the academics' disapproval of the judicial conduct was not only not merited, but also, the conduct was relatively harmless compared to conduct issues that normal people are facing in courtrooms and from judges more generally. For example, there is a Quebec judge jetting around to legal conferences asserting that self-represented litigants are mentally ill. Any action on that file? No, we are more concerned about Judge Zabel's hat.

Legal academe has gone completely rogue. I'm tempted to say insane, but there is too much consistency to the method. Legal academe has gone rogue. And it's gone rogue politically. It's no accident that Judge Zabel's hat was a Trump hat.

In the CBC's story today about the Zabel hat incident, one particularly outraged professor intones that there is "compelling evidence that he wore the Trump hat as a political statement and endorsement of Trump's values and ideology."

Well, maybe he did. But aside from the problem of political opinions being voiced by the bench, there's nothing wrong with Trumpian opinions in particular. Everyone and anyone has the freedom to not just endorse but also to passionately embrace Trump's values and ideology. It's just that Trump's values and ideology give the professoriate the creeps.

Which makes the professor's complaint itself a statement of political opinion by the professor. How suitable is that? To whom do I make a complaint?

A judge wearing Hillary regalia, you see, would have aroused not a word of complaint. For example, there was no academic movement to disbar Marie Henein for her pro-Hilary rant in the Globe and Mail, however inappropriate that was for a lawyer. (There are professors who have, however, damned her for defending Ghomeshi, ie, for doing her job).

The professoriate worldwide is driven absolutely nuts by the Trump victory. They see it, and rightly, as a rejection of their sage advice to the people about what is good for them. It's kind of amusing that this comes in Canada from the American Trump victory and the UK Brexit vote, because you know, before either of those things happened, Toronto thumbed its nose at the publicly funded elite and voted for Rob Ford. And Vancouver thumbed its nose at a multi-million dollar bureaucratic campaign to vote up transit funding with a resounding NO.

The professoriate did not take a hint from those events. Now they are knocked somewhat flat by the evidence from outside the country, and so much so that their high minded democratic equality ideals desert them as they flail about to reconcile those ideals with their hatred of Trump. To a unit, those who try to argue against Trump cannot speak without revealing their contempt for the people who voted for him. Just like the professors who are going after Judge Zabel.

Sorry, people, the high-minded ideal of democracy and the reality of equality means that when Trump wins, you concede graciously or you shut up. You may think that the Rob Ford melt-down shows that you are right, but you are wrong in thinking that, because garbage collection is working better now, no matter what Rob Ford's own tragic back story was. And the people who voted for him knew that it would be.

It's also no coincidence that Judge Zabel was a judge in Hamilton. My take is that he's a judge who knows his people. My guess is that he increased local confidence in the judiciary tenfold when he wore that hat. Local people would be choosing to appear before him if they could. His joke may not have played well in judge's chambers or in academe, but I bet there was a good bit of chortling over the morning newspaper in homes throughout the region when news of it broke.

Neither public support nor my own views make the hat a good idea, of course. I'm not saying a hat can't be problematic. If a judge wore a hat with a logo of a potential litigant, for example, I could see a problem - so, let's say, Toronto Blue Jays, or the Steelworkers union. And I'm not saying it shouldn't be pointed out, even by a left wing law professor. Critique is good: we are always more willing to see our opponents more clearly than we see those who we support. That's why the law is adversarial. But public dialogue should always be adversarial too, and what bothers me about the Zabel hat incident, and the Camp case, is that no one has opposed the professors who complained. Everyone, including media, just rolls over when a professor speaks - they can't possibly be wrong, can they? - and worse, the professors expect precisely that reception.

Part Two of Three: Can the professoriat be reined in?

The belief in the professoriate that they should rule the world, and especially control the judiciary, has been brewing for some time, and it became glaringly apparent through the Ghomeshi file that it is especially prevalent within the ranks of feminist missionaries who work as legal scholars. Tragically, there are actually law professors who treated the outcome of that trial as regrettable, and who are plotting to make sure that something similar - an innocent man evading conviction - cannot happen again.

But the cost of rogue academe truly hit the fan in the matter of the Justice Camp takedown. It is not readily apparent from the news coverage, but if you carefully read the inquiry documents you realize that, after the campaign against him began with four law professors, a veritable chorus of over 50 more law professors bolstered them. There were a couple of dozen individual, perhaps public, letters, but professorial signatures outnumbered them. Most appalling was a petition signed by over 200 law students in various programs at the University of Windsor. What kind of a law education is that? And how confident of their own invulnerability do these 50-plus professors have to be to put their names to a witch hunt?

That they truly feel invulnerable is readily apparent throughout the arenas of discourse in law, including social media. Not only do they merrily tweet out and blog-post about their twisted views of judicial propriety and expectations of the law, but also, when questioned or challenged, they engage in various evasive tactics: they stonewall, they regress even further into their utopian delusions of law, they ridicule opposition, or they leave a ghastly, deafening silence where their respectful response and self-evaluative engagement should be.

Obviously, even when they wield their credentials to gain leverage in the court of public opinion, these professors have absolutely no notion of letting themselves be taken to task here. Academic freedom, right? Not if it's outside the boundaries of peer review. Outside the boundaries of peer review, they are answerable for why they get paid to spout opinion in public while the rest of us don't. And lousy opinion at that.

But however irrational they become, they seem to have a death grip on the judiciary.

So, how can they be stopped? The only thing that will give legal academe pause is if the supply of money dries up. This means that they can be stopped only by government, by the law profession, or by alumni.

University management is not going to do anything. They're too happy splashing around in all that money.

Of the three forces that can turn off the taps of money, government is not going to defund universities. The professoriate is too potent a political force - connected to the union movement and able to mobilize their students too. And willing to do so, as shown by the UWindsor student petition.

That leaves legal alumni, and the legal profession as a whole.

Any alumni, whether they are sending in twenty dollars once in a decade or donating 30 million once in a lifetime, need to think about what they are supporting. Anyone who can still distinguish why it is wrong that a law professor can take down a judge based on a difference of political opinion should realize that the manufactured fear of Trump is blinding us quite conveniently to something much worse being done by the people who hate Trump.

If you are supporting a university or a law school, you are funding the destruction of judicial independence by making judges subservient to law professors.

And the profession of law needs to take the training of lawyers back out of the academy and restore it to the practical realm. Because that guy, the one who  - seriously, think about this - made a complaint about the hat that a judge wore in court without any breath of reference to the quality of work the judge was actually doing, is teaching the next generation of lawyers.

It should be noted that as we speak, the profession and academe are getting more tightly into bed together; blurring the boundary between agencies and making the profession increasingly vulnerable to control from within academe. The profession needs to draw back from that engagement. If the profession becomes complicit with what legal academe is doing, it cannot legitimately evaluate whether programs merit accreditation and whether graduates should be licensed to practice. Robust systems are all about boundaries, so that separate agencies can act as checks and balances on each other. Academe's failure is a sign that certain jobs in the system have been left undone.

As I've said before, law firms are getting bigger and bigger, to the point of being able to do in-house training. It can't help but be better than the training that law students are getting in the halls of academe. From what I see on line, law students are getting progressively dumber and more gullible. Or maybe they were always like this, but their work was wisely kept within the academy where it could be safely forgotten.

And let's not forget how easy it is for new grads to get close to the judiciary. After being indoctrinated by the utopian professoriate, whether with ecological, gender-based, or Trump-hating zealotry, these new grads are quickly absorbed into clerkship positions within the judiciary itself, where they brief judges on cases and may even write their decisions for them (someone, please tell me this doesn't happen, but so far my information is that it does).

So, practitioners: get those students out of the hands of those professors before the damage to the profession is permanent.

Legal conferences and speakers are another avenue by which money flows into schools of law. That's a big industry. I don't say that scholarly speakers can't provide value. But if I were inviting a professor to speak whose work I value, I would want to be sure that no money is going to their colleagues whose work is destructive.

So as benchers, as alumni, and as practitioners, the law profession needs to cut the academics loose. There is no excuse for this deliberate and unrelenting campaign to render the judiciary servile to academe. Of all people, legal scholars should know how wrong this is. The fact that they either do not know, or know and do it anyway, shows that they are not legal scholars at all. They are just really smart people who speak the language of law well enough to disguise their contempt for it.

"Credentialed to Destroy," someone called this within the education discipline. A lawyer, actually.

There are still real legal scholars in academe, by the way. They're just getting harder to hear.

Part Three of Three: Is the judiciary resilient?

This is not to excuse the judiciary from the role it has played in its own destruction. Judges are also really smart people. They can legitimately have been expected to notice when they became slavishly subservient to academe. And they can legitimately have been expected to fix it.

Note that the ensuing historical references are mostly written without checking my notes. So don't quote without fact-checking please.

When the Canadian Judicial Council was formed in 1972 or so, after the Landreville hearings went badly, the intent was to create a forum in which judges would hold each other accountable independent of political interference. It has always been the great fear that justice would be controlled by those with political power - legitimately, because it often has been - and the CJC seemed to be a refuge from that.

But the CJC model had some fatal weaknesses, as current events show. Independence from government meant closer ties to the legal infrastructure itself. Greater loyalty to it, greater reliance on it, and greater vulnerability to it. It's ironic, but as it became less acceptable for judges to be political, judges also became less and less connected to their communities. This actually makes perfect sense: the most underrated quality of politicians is populism. Those who best sense, respond to, connect with, and reflect popular sentiment are the most successful politicians. And it used to be not uncommon for judges to have been, in a former life, politicians.

Not long after I started up this blog, with the name The Court Jester, I came across a series of Canadian books by that name. Written by Peter V. MacDonald, QC, and published respectively in 1985, 1987, and 1990, Court Jesters, More Court Jesters, and Return of the Court Jesters are a very entertaining read but also a gut-wrenchingly authentic collection of snapshots of the history of the judiciary.

People, you may not know it and I did not know it because it is almost outside living memory, but the law used to be alive. Judges used to be Menschen. The courts used to be places of public dialogue.

To read these vignettes is to travel back in time to when public confidence in the courts was a real thing, because the public was sitting in the bloody courtroom reacting viscerally to everything that happened. Or, if the tales in one section are to be believed, they were gathered in the firehall, perched all over the fire trucks, because that was the only place in town available to hold a trial. In any event, court was the only show in town - especially pre-TV - so people went.

Note I'm not saying public confidence was higher or lower. My point is that it was real, not just a rhetorical construct used by judges who haven't actually interacted with a member of the public outside the courtroom since their appointments.

In a gutsy move by the writer and publisher, the third book includes as Chapter 5 a section titled "The judge who knew everything." It recounts three cases heard in a single afternoon by a judge who was able to correct, corroborate, or fill in witness testimony about the people and places the alleged offences involved because they were places he'd lived and people he knew. The judge was Leo Albert Landreville.

In preference to the sanitized, robotic version of the judge that legal academe is trying to create with its dogmatic purification process (reference to Karl Popper) that seeks to purify the human right out of the judge, please give me one of the living, breathing, thinking, fallible, yet striving, funny, and often brilliant humans who populate the pages of these books.

Perfect was ever the enemy of good, and the creation of the CJC after the Landreville affair may be an exemplar of this principle. A précis of Bad Judgement: The Case of Mr. Justice Leo A. Landreville describes among the agents of his takedown "the intolerant attitudes of the élite bar." Apparently the LSUC investigated him, as did a retired judge and a parliamentary committee.

I think the moral of comparing yesterday to today is that the holding to account of a judge for anything is never going to be easy, nor is it going to be pretty. It may be necessary for the process to change from time to time, as it has been doing and promises to do again.

But if the process is to sustain public confidence, then there is one fundamental principle that must be sacrosanct, and that is that any time action is taken against a judge, it had better be against a judge who is at that point in time among the worst offenders, not just one who is the easiest prey or whose take-down best serves a certain political interest. That is the essence of judicial independence, that no political force, whether it emanates from government or elsewhere, can target and take down a judge of their choice.

Watching the Camp and Zabel stories unfold reminds me irresistibly of quests to reduce hospital morbidity and mortality that seize on small mistakes by junior physicians or nurses while studiously ignoring the frequency with which senior elite surgeons don't wash their hands.

Whether Landreville was rightly censured or not, I believe the formation of the CJC was a mistake. Maybe not the organization itself, but the decision to put in leadership positions within it the people who also manage the courts across the country. The provincial equivalent bodies are presently being restructured to involve more public participants. Given the size, diversity, and political polarization of the public, I am not sure this will answer. But even if it does, the behaviour of people within an agency is always a function of the forces that act on the agency, and it is the nature of those forces that may be easier to isolate for examination, and alter.

Given that academe presently poses the greatest threat to the judiciary, both the fact that the political left has captured academe and the fact that scholars have self-assigned themselves to a divine right to act as public intellectuals must be questioned. We do not employ these people at public expense so that they can reach out of their safe perches in the ivory tower and arrange the real world to their liking. Anything that emerges from the tower must either come into the marketplace of ideas or be tested first by peer review - peer review that isn't kowtowing, groupthink, or a popularity thing.

If academe does not heal itself, then, the judiciary needs to distance itself from academe's influence. Not cave to its decrees, as it has so far in both the cases of Camp and Zabel.

Since the CJC's formation, the Charter of Rights and Freedoms has also been enacted, and handed to the Supreme Court of Canada to adjudicate. This totally changed the power dynamic within law, including the role of the Chief Justice for Canada, in ways it is beyond my scope in this post to examine. But I think there are implications for the CJC's capacity to evaluate judicial conduct, and also for the type of influences to which it is vulnerable. A whole industry sprang up around the Charter, and it has deep roots in academe.

And then a very young Chief Justice for Canada was appointed, poised to hold that position for a long time. Maybe a bit too long. No matter how excellent an incumbent, succession is an opportunity for organizational renewal, and the judiciary and the law both have been denied this opportunity for the period of incumbency.

Today, then, as we contemplate the rubble of a once respected, connected, and functionally independent judiciary - never a perfect one, but at least a living thing - we are at the intersection of a number of significant decisions and developments that originated in the 1970 to 2000 period that are either ignored or resistant to scrutiny when we contemplate judicial conduct.

Anyone seeking to make decisions about these two beleaguered judges should recognize the underlying forces that may be in play, and take action where the cause is, not where the effect is playing out.

In the meantime, until the conversation goes to the heart of the matter, I'm calling the case of both these judges a witch hunt - or a lynching. And that being the case, these campaigns cannot be allowed to succeed. I'm calling on the organizations of the law to reassert themselves to recapture their authority, their dignity, and their independence, in the public interest.

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