Supreme Court of Canada: Canadian lawyers must turn the other cheek when bench slapped

Today’s decision by the Supreme Court of Canada in Doré v. Barreau du Québec, 2012 SCC 12 provides an insight into the bounds of incivility within the legal profession and the constitutionally defined limits of lawyers’ freedom of expression to criticize judges under section 2(b) of the Canadian Charter of Rights & Freedoms. The Court affirms that the administrative law approach, not the s.1 Oakes analysis, is the proper form of judicial review in determining whether administrative decision-makers have exercised their statutory discretion in accordance with Charter protections, based upon the standard of review of reasonableness.

The appeal involved a decision of the Disciplinary Council of the Barreau du Québec to reprimand the appellant, a Quebec lawyer, for the content of a letter he wrote to a Quebec judge after a criminal court proceeding, where the judge tore a strip out of the lawyer in open court. Patrick Gordon at thecourt.ca provides a helpful backgrounder here. The translated text of the *private* lawyer’s letter to the judge reads as follows:

                    [TRANSLATION]

WITHOUT PREJUDICE OR ADMISSION

Sir,

     I have just left the Court. Just a few minutes ago, as you hid behind your status like a coward, you made comments about me that were both unjust and unjustified, scattering them here and there in a decision the good faith of which will most likely be argued before our Court of Appeal.

     Because you ducked out quickly and refused to hear me, I have chosen to write a letter as an entirely personal response to the equally personal remarks you permitted yourself to make about me. This letter, therefore, is from man to man and is outside the ambit of my profession and your functions.

     If no one has ever told you the following, then it is high time someone did. Your chronic inability to master any social skills (to use an expression in English, that language you love so much), which has caused you to become pedantic, aggressive and petty in your daily life, makes no difference to me; after all, it seems to suit you well.

     Your deliberate expression of these character traits while exercising your judicial functions, however, and your having made them your trademark concern me a great deal, and I feel that it is appropriate to tell you.

     Your legal knowledge, which appears to have earned the approval of a certain number of your colleagues, is far from sufficient to make you the person you could or should be professionally. Your determination to obliterate any humanity from your judicial position, your essentially non-existent listening skills, and your propensity to use your court – where you lack the courage to hear opinions contrary to your own – to launch ugly, vulgar, and mean personal attacks not only confirms that you are as loathsome as suspected, but also casts shame on you as a judge, that most extraordinarily important function that was entrusted to you.

     I would have very much liked to say this to your face, but I highly doubt that, given your arrogance, you are able to face your detractors without hiding behind your judicial position.

     Worst of all, you possess the most appalling of all defects for a man in your position: You are fundamentally unjust. I doubt that that will ever change.

Sincerely,

Gilles Doré

P.S. As this letter is purely personal, I see no need to distribute it.

(C.A. judgment, 2010 QCCA 24, 326 D.L.R. (4th) 749, at para. 5)

Justice Abella, writing for the unanimous Supreme Court of Canada, confirms a judicial balancing exercise:

[6]                              In assessing whether a law violates the Charter, we are balancing the government’s pressing and substantial objectives against the extent to which they interfere with the Charter right at issue.  If the law interferes with the right no more than is reasonably necessary to achieve the objectives, it will be found to be proportionate, and, therefore, a reasonable limit under s. 1.  In assessing whether an adjudicated decision violates the Charter, however, we are engaged in balancing somewhat different but related considerations, namely, has the decision-maker disproportionately, and therefore unreasonably, limited a Charterright.  In both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited.

While the Court notes that “[p]roper respect for these expressive rights may involve disciplinary bodies tolerating a degree of discordant criticism”, the bottom-line is that lawyers are expected to develop icthyosis, otherwise known as having a ‘thick skin':

[68] Lawyers potentially face criticisms and pressures on a daily basis. They are expected by the public, on whose behalf they serve, to endure them with civility and dignity. This is not always easy where the lawyer feels he or she has been unfairly provoked, as in this case. But it is precisely when a lawyer’s equilibrium is unduly tested that he or she is particularly called upon to behave with transcendent civility. On the other hand, lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so. But they are constrained by their profession to do so with dignified restraint.

[69] A reprimand for a lawyer does not automatically flow from criticizing a judge or the judicial system. As discussed, such criticism, even when it is expressed robustly, can be constructive. However in the context of disciplinary hearings, such criticism will be measured against the public’s reasonable expectations of a lawyer’s professionalism. As the Disciplinary Council found, Mr. Doré’s letter was outside those expectations. His displeasure with Justice Boilard was justifiable, but the extent of the response was not.

It is basic human nature for judges to talk among themselves about counsel that appear before them. The archaic approach to judicial recusals in Canada in compounded by the fact that filing a complaint against a sitting judge to the Canadian Judicial Council is  a classic Career-Limiting-Move (CLM).  The motto the Court tacitly endorses for lawyers castigated by judges is to “turn the other cheek when bench slapped”:

[66] We are, in other words, balancing the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession. Disciplinary bodies must therefore demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer’s right to expression and the public’s interest in open discussion. As with all disciplinary decisions, this balancing is a fact-dependent and discretionary exercise.

[67] In this case, the 21-day suspension imposed on Mr. Doré is not before this Court, since Mr. Doré did not appeal it either to the Court of Appeal or to this Court. All we have been asked to determine is whether the Disciplinary Council’s conclusion that a reprimand was warranted under art. 2.03 of the Code of ethics was a reasonable one. To make that assessment, we must consider whether this result reflects a proportionate application of the statutory mandate with Mr. Doré’s expressive rights.

Don’t get me wrong. I don’t condone Mr. Doré’s intemperate and injudicious remarks about Justice Boilard. He should have written the missive to get it off his chest, then tore the letter up. The fact that he intended his letter to be private did not assuage the Court:

[70] The Disciplinary Council recognized that a lawyer must have [TRANSLATION] “total liberty and independence in the defence of a client’s rights”, and “has the right to respond to criticism or remarks addressed to him by a judge”, a right which the Council recognized “can suffer no restrictions when it is a question of defending clients’ rights before the courts” (paras. 68-70). It was also “conscious” of the fact that art. 2.03 may constitute a restriction on a lawyer’s expressive rights (para. 79). But where, as here, the judge was called [TRANSLATION] “loathsome”, arrogant and “fundamentally unjust” and was accused by Mr. Doré of “hid[ing] behind [his] status like a coward”; having a “chronic inability to master any social skills”; being “pedantic, aggressive and petty in [his] daily life”; having “obliterate[d] any humanity from [his] judicial position”; having “non-existent listening skills”; having a “propensity to use [his] court — where [he] lack[s] the courage to hear opinions contrary to [his] own — to launch ugly, vulgar, and mean personal attacks”, which “not only confirms that [he is] as loathsome as suspected, but also casts shame on [him] as a judge”; and being “[un]able to face [his] detractors without hiding behind [his] judicial position” , the Council concluded that the “generally accepted norms of moderation and dignity” were “overstepped” (para. 86).

[71] In the circumstances, the Disciplinary Council found that Mr. Doré’s letter warranted a reprimand. In light of the excessive degree of vituperation in the letter’s context and tone, this conclusion cannot be said to represent an unreasonable balance of Mr. Doré’s expressive rights with the statutory objectives.

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2 Responses to “Supreme Court of Canada: Canadian lawyers must turn the other cheek when bench slapped”

  1. Jordan Rushie Says:

    I see where he’s coming from, because sometimes judges do stuff that is just outrageous.

    “He should have written the missive to get it off his chest, then tore the letter up.”

    Yes. This. And if it were that bad, complain to the judicial commission or something. It’s demeaning to the profession to slam a judge like that. It makes litigants believe they’re in kangaroo court.

  2. Antonin I. Pribetic Says:

    I agree, Jordan. Most trial lawyers have been at the receiving end of judicial distemper in our careers. Avoiding the temptation to retaliate is the hallmark of professionalism and trial advocacy.

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