UNPOPULAR OPINION: Justices should be free to speak out about injustice

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In a time where everyone has an opinion, why are lawyers and judges gagged?

The recent case of Julie Lauzon, who is now facing a disciplinary sanction by the Judicial Justice of the Peace Council on Ontario is a prime example of the, frankly, stupidity of hamstringing progress in our justice system by gagging judges and lawyers from speaking openly about their criticisms of the process.

Rather, lawyers and judges are meant to protect the reputation of the administration of justice by being cautious about the words they use when criticizing the courts. Judges and Judicial Justices of the Peace rarely, if ever, speak out about their concerns about the inner workings of the justice system.

Indeed, this year it was a shocking turn of events when Chief Justice Christopher Hinkson spoke out in defence of a judge who had been unfairly characterized in a news story. And that was the judge speaking out to laud the justice system, not critique it.

Change is rarely, if ever, implemented by people who sit silently and wait for it to happen. Look at Ontario’s bail system, which was in dire need of overhaul after Ontario prisons were filling up because the Crown sought to detain people where no detention was necessary. It took a new bail policy from the Ontario Attorney General to stop this practice.

But what was one likely impetus for this?

It was a tersely worded opinion published in the National Post by Julie Lauzon, the same Judicial Justice who is now facing disciplinary sanctions for publishing that piece. So you can be right, but still be wrong.

Lauzon is not alone in this.

Earlier this year, the Supreme Court of Canada decided a case involving a lawyer who had been disciplined for filing applications alleging Crown misconduct, while defending his client. He perceived the actions of the Crown to be improper, and while he was legally wrong, his basis for doing so was in the right place. And this went all the way to the top court before he was vindicated.

Or take the case of a Quebec lawyer who was fined $2000 after calling out the practice in Quebec of having all child protection cases heard by the same judges, with the same prosecutors, and the same legal aid lawyers. She likened it to David going up against two or three Goliaths. The Supreme Court of Canada refused to hear her appeal.

But nothing is ever going to change in our justice system if lawyers and judges are not permitted to criticize what is worthy of criticism. It cannot be that if a person thinks a practice is wrong, or inefficient, or unjust, that they must either file the proper formal legal application, argue it, lose, file an appeal, lose the appeal, and then attempt to be heard by the Supreme Court of Canada, often all the while dragging some poor unsuspecting client along.

Nor should it be that only those lawyers lucky, talented, and politically aligned enough to advance to top positions like Attorney General or Justice Minister be in a position to effect any real change in the justice system.

The reality — far be it from the detractors of Ms. Lauzon and her commentary to accept it — is that the people who are in courtrooms or facing tribunals day and and day out have the best sense of what works, what does not work, and what is broken about the system and long overdue for repair. And the public has the right to be informed about this, not so that their confidence in the justice system can be undermined, but so that they can rally for substantive change. The short-term perception of damage to the administration of justice is preserved by long term protection of the aims of our justice system.

No one would say that our justice system is perfect. It is and will always be a work in progress. But gagging those who can identify where progress needs be made, and penalizing those who dare to identify a flaw in need of fix, and who speak out when they see ongoing injustice? That only hurts the administration of justice.