Speakers Corner: 'Harmful' decisions often from poorly presented cases

In a democratic society there is no reason to fear public criticism of the judiciary. Judges fulfil an important role in our society and their decisions often have a profound impact on the litigants who appear before them.

As public servants who are entrusted with that degree of power and influence, judges' decisions should be open to scrutiny and criticism.

Nor need it be a one-way street. Judges may engage in an open exchange of ideas, and even respond to criticism, provided it occurs in a manner that does not adversely affect their ability to fairly and impartially discharge their judicial duties.

It is against this backdrop that I read Carole Curtis' opinion piece in Law Times ["Family court judges who hurt families and children," Sept. 18, 2006]. I should say at the outset that while I do not know Ms. Curtis personally, she has appeared in my court a number of times, and I have a high regard for her competence as a lawyer.

However, Ms. Curtis' article is a perfect illustration of the difference between fair and honest criticism of the judiciary and what I would characterize as ambush. Honest criticism should be articulated so as to fully inform the reader, thereby permitting the reader to formulate his/her own opinion on the subject.

On the other hand, ambush provides only limited facts, sufficient solely to support the writer's opinion. It provides no foundation whatsoever to enable the reader to become fully informed and to formulate his/her own independent conclusions.

Regrettably, Ms. Curtis' article falls into the latter category. The title of her article is a clear window into the body of her opinion piece. She begins her article with the question, "Do judges really think about the consequences of their orders for the spouses in their courtrooms? Do they?"

Later, referring to a particular unnamed judge and unnamed decision, she refers to part of that judge's order as a "rogue provision." In her penultimate paragraph, she states, "all the judges [unnamed] involved [in the unnamed cases] actually hurt these parents and these children by their decisions."

If it is Ms. Curtis' honestly held view that certain "family court judges hurt families," why does she not tell us who those judges are? She apparently justifies this by stating, "It is very difficult to criticize a judge publicly. Lawyers are afraid to do it and therefore do it rarely." And yet that is precisely what she has chosen to do.

The late, highly respected professor Jay McLeod did not think it was difficult to criticize judicial decision-making, and he did so regularly in his annotations in the Reports of Family Law. However, unlike Ms. Curtis, professor McLeod's criticism was always based on well-articulated reasons that enabled the reader to arrive at his/her own conclusion.

Whether or not one agreed with professor McLeod's particular thesis, his argument was always transparent. That is the essence of honest criticism. On the other hand, Ms. Curtis' approach tars the entire judiciary in this province - the Ontario Court of Appeal, the Ontario Superior Court of Justice and the Ontario Court of Justice - by refusing to tell us which judges, in her opinion, "hurt families."

Compounding that serious weakness is her failure to provide case citations to enable the reader to go directly to the source material to decide for him or herself whether Ms. Curtis' criticism is well founded. Quite simply, Ms. Curtis' attempt to express an honest opinion falls far short of the standards she sets for herself as an advocate in the courtroom.

Even had Ms. Curtis made sufficient disclosure to permit the reader to fully inform him or herself, her central thesis - judges hurt families - is unsound. It is rarely possible to discern from reasons for judgment alone whether a judge has decided a case erroneously. Appellate courts require a transcript of the evidence before that determination can be made.

Furthermore, as Ms. Curtis well knows, seldom is there a "right" and "wrong" answer to the complex family cases over which we preside. If the answers were as easy as Ms. Curtis suggests, if the harmful outcomes for litigants were as predictable as Ms. Curtis would have us believe, there would be no need for courts, as the lawyers would be able to settle those cases on their own, without asking judges to do so.

Judges have little or no control over the evidence that is served up to them during the course of a trial. Self-represented litigants, and lawyers of lesser quality than Ms. Curtis, often provide the court with inadequate and incomplete evidence. Poor submissions and advocacy can leave a judge with far too little grist for the decision-making mill.

The court's primary responsibility is to decide cases. The court is not an investigative body. Accordingly, judges are forced to contend only with the evidence they receive and make the best decision possible, based on that evidence. "Harmful" decisions often result from poorly presented cases.

Nevertheless, judges occasionally err. The purpose of an appellate court is to correct errors made by the court below. However, it is a quantum leap to conclude that a judge who has made a reviewable error is a judge who "hurts families," a judge who makes "rogue" orders, or a judge who fails to "think about the consequences of their orders." To apply such emotionally laden labels to a judge who may have erred is both facile and misguided.

I suspect that rarely, if ever, do judges hurt families. More often it is the litigants themselves and the tragic circumstances into which they have fallen that create this harm. And, of course, delays and the lack of resources that are features of an imperfect judicial system can often exacerbate an already difficult case.

Judges well understand their obligation to serve the public in a positive and meaningful way by giving each case the attention it deserves. This means trying to resolve conflicts as early as possible and in the best interests of children or, where trials are necessary, to make the best decisions they can, usually with the limited tools at their disposal.

While honest comment of a particular case is fair ball, personal attacks on the judges themselves is, in the context of Ms. Curtis' opinion piece, well outside the foul line. In that regard, Ms. Curtis has failed to meet the minimum standards necessary to qualify as honest criticism of the judiciary or judicial decision-making.

Justice Robert Spence is a judge of the Ontario Court of Justice in Toronto.

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