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THE GOOD JUDGE

By:  Munyonzwe Hamalengwa

July 10^th, 2000

“The Good Judge”.  This was the heading of the editorial of the Toronto Sun of July 10^th, 2000.  “The Good Judge” referred to Justice David McCombs of the Superior Court of Justice who upheld the law, specifically section 43 of the Criminal Code of Canada that provided for parents, teachers and guardians to use reasonable corrective discipline on their children.

The Toronto Sun editorial makes it quite clear that the “Good Judge” did not achieve this status by the correct application of the law, but because he deferred to the legislature who crafted this law.  Any deviation would undoubtedly have earned this judge, the label of “bad judge” or as a “judicial activist”.

The same Toronto Sun of July 10^th, 2000 has two other articles railing against the judge’s decision.  One contains a statistic, which reveals that 55% of the cases decided under section 43 of the Criminal Code have led to the conviction of the perpetrators with regards to the manner of discipline claimed under that section.  These judges - 55% of them -  presumably are “bad judges” if judged against the standard of the editorial of the Toronto Sun in question. 

What are the implications for the criminal justice system if judicial performance is graded by the media on the pendulum of “good” and “bad”?  The implications are ominous.  Judges are already under tremendous pressure from the politicians, the media, the victims’ groups, academics, crown attorneys, defence counsel, the accused and powerful interest groups to pander to their dictates.  People make careers out of judge bashing.

No other group is perhaps as much under pressure as our judges.  The Ontario government has already brought a bill called the Judicial Accountability Act which if enacted will expose alleged lenient judges to the public annually.

A judge of the Supreme Court of Canada stated at the Canadian Bar Association conference in Calgary in 1999 that some judges might be influenced in their decision-making proclivities by the media and the public pressure.  She was no doubt speaking from experience.  Former Chief Justice Lamer of the Supreme Court of Canada often decried the intrusions of the media and public pressure on the sanctity of judicial independence.

Judges are not the only ones under pressure, though  they receive the worst and most intense of it.  Parole board members, justices of the peace and immigration adjudicators receive it as well. Most parole board members, justices of the peace and immigration adjudicators simply bend to public pressure and refuse to release inmates.  Judges are the last bastions against this trend.  With the new designation of “good judge” and “bad judge”, coupled with the judicial accountability act, judges may start to fall, one by one.  Mind you, judges are already competing with each other as to who will utter the catchiest of phrases or the label of the accused for the consumption of the eager and hungry media.  Crown attorneys, justices of the peace, parole board members and adjudicators have long been playing the labeling-of-the-criminals game.  Is it “your criminal days are over”; “you have devoted your time to a life of crime”; “you are a career criminal”; “a con man still hard at work”; or  “you are a murderer who got lucky” and so on?  In short, judges are already pre-disposed to being influenced.  Most are already law-and-order minded.

Let the public be reminded that the measure of democracy is not only that we vote every 4 or 5 years, but what happens every day in the administration of civil and criminal justice in terms of what judges, police officers, adjudicators, parole board members, justices of the peace, crown attorneys, defence counsel and the public at large are doing in the preservation of democracy and the rule of law.  The quickest road to the evisceration of democracy is the erosion of rights in the criminal justice system.

Editorial writers, just like judges, are not elected and should not be allowed to dictate or impose their views on all of us.  They must apply the same criticism to themselves as they do to judges.  Given a choice between an editorial writer from the Toronto Sun or a judge, I would pick a judge any day, any time, any place.

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