Collin May: Shame on lawyer associations for trying to silence criticism of courts

A muzzled dog waits for its owner outside a store in the Sud-Ouest district of Montreal on Sunday January 8, 2017. Photo by Allen McInnis / MONTREAL GAZETTE

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Sarkonak’s transgression, according to both the CBA and now the Advocates’ Society, is that she not only criticized judicial decisions, but that she chastised the judges who made those decisions. Specifically, she tied their rulings from the bench to their past activism as lawyers. Sarkonak argued that the judges’ current penchant for racialized sentencing, consistent with past activism, and creating protected rights for drug dealing criminals, are deserving of public scrutiny.  

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On this go-around, the Advocates’ Society president, Craig Ferris, wrote a letter to the National Post’s editor-in-chief. The letter opens with the usual concessions about the role journalism plays in our democracy and the importance of public debate over court decisions.

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However, it goes on to state that “the National Post has recently published a spate of commentary that falls short of the standard of journalism that strengthens our democracy.” Ferris follows this assertion with the evidence, complaining that an unnamed but clearly intended Sarkonak had the temerity to attack individual judges, even “calling for one judge’s removal from the bench.” In the most recent case, that of B.C. Supreme Court Justice Catherine Murray, Sarkonak highlighted her praise of drug dealers she identified as harm reduction activists.

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The letter rambles on a bit further, wrapping up with the contention that, “Reasoned, passionate criticism of court decisions is appropriate. So is calling for a decision to be appealed or reversed by legislation. A personal attack on a judge is not.”

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I have a few points of disagreement with my colleagues, but I’ll focus on two that stand out for me. Let’s begin with the Advocates’ Society’s rather bald declaration that these criticisms “fall short of the standard of journalism that strengthens our democracy.” Apart from questioning what credentials a voluntary association of lawyers has to determine the “standard of journalism,” Sarkonak’s critiques do raise an important issue for our democracies.

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In her articles, she ties the judges’ current decisions to their past activism. As a lawyer who spent five years on a judicial advisory committee (JAC) tasked with reviewing candidates for federal judicial appointments, I can attest that the connection between a judge’s decisions on the bench and their former ideological commitments raises some concerns.

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The federal government revels in telling Canadians that the judicial selection process is non-partisan and independent. However, as I’ve argued before, the Trudeau government injected ideology into the process in 2016 when it replaced the federal justice minister’s three representatives on the seven-person JACs with members of the public chosen for their commitment to diversity, equity and inclusion.