Newsreal Archives/Critic' Corners
SHOULD LAWYERS BECOME JUDGES?
Canadian Prime Minister Stephen Harper has spoken out about his opposition to "judicial activism”.
His speech about "judicial temperament" and how judges should only enforce law and not create new laws is one that should get the attention of all citizens across the country by virtue of the fact that too many judges make their own rules as they go along.
We are reminded of Justice Peter Leask, former defence lawyer, who was appointed in 2005 by the liberal government and who on Wednesday, March 14, 2007, caused the newspaper to write about his conduct on the bench during a final argument given by the federal prosecutor Ernie Froess, in a case involving Glen Jonathan Hehn, a full patch member of the elite Nomads of the Hells Angels, who had been charged with trafficking wherein one-kilo cocaine bricks worth a total of $1.5 million were seized from the vehicle and at the storage locker of the accused.
When Froess argued that the locker where the large volume of cocaine was located was rented by Hehn, the judge immediately came to the defence of the accused by saying:
"But to be really clear, he'd have had to have been out of his fuckin' mind to store it in his own locker, all right? I mean, that's for sure he wouldn't do that. Let's not spend any time on that theory."
Subsequently rather than writing about the real issue regarding the judge’s conduct, the media created a frenzy regarding Leask’s foul language in court.
The media should have written the following:
--- A judge must be characterized by absolute neutrality with respect to the parties and issues before him. If the judge becomes an advocate behind the bench and makes the argument for one of the parties, he no longer is impartial and therefore must recuse himself from the case immediately ---
In Canada judges of the Superior and Appellate Courts are appointed by the Federal Government. Only Provincial Judges are appointed by the Provincial Attorney General.
In the USA judges are elected. In both countries all Federal judges and State trial and appellate court judges are required to be lawyers.
Unfortunately, most lawyers do not have the knowledge and skills needed to handle the issues passing through our courts.
Lawyers do not receive additional training when they become judges except for a few brief cram courses after they are appointed to the bench -- most often as a reward for political loyalty, rather than demonstrated competence -- new judges are on their own.
More bluntly, if your average veterinarian was as poorly trained as your average judge, you wouldn't let Fido within 100 feet of him.
In France, there is L’École de la Magistrature -- Judge School -- wherein someone who has a diploma of at least equal to four years of studies after the baccalaureat, or of a diploma delivered by an institute of political studies, or to be former pupil of a higher teacher training school, may attend L'École de la Magistrature.
First however he or she must go through three different rigorous tests for the purpose of admission. The three contests determines the intellect of the person and his or her wisdom regarding life. Prior at being admitted to L’ École de la Magistrature there are six conditions that are common to the three contests and recruitment on titles of listeners of justice:
To be of French nationality;
To enjoy its civic rights and to be of good morality;
To be in regular position taking into consideration code of the national service;
To meet the conditions of physical capacity necessary to the exercise of the functions;
To meet the conditions of age;
To deposit a candidates' file within the time limits;
The separation between the bar and the judiciary would be the first obvious sign.
Peter Leask is a casualty of our system and even if people keep complaining about judges, we must all come to terms with the fact that judges in North America are lawyers first, therefore they do not have a mind of a judge and do not have the capacity to be a judge since the vast majority of lawyers are trained in an adversarial system with winners and losers, -- their first instinct is to argue the case, wherein judges, as in France, are listeners of justice.
Thus, the Prime Minister of Canada and the Minister of Justice ought to take notice and seriously consider implementing a school for judges as in France and other countries, and perhaps then judges won’t be required to apologize to the public in a courtroom, like Peter Leask did on Friday, March 16, 2007 before members of the public.
In any event, swearing and using foul language by the judge appears to have been all smoke and mirrors, since the true story was the fact that His Lordship made the case for the defence in order to acquit a member of organize crime from the charge of trafficking.