This post, like my last one, comes from the weird and wonderful world of judicial ethics in Quebec. This time, though, it’s mostly not a judge’s fault, but that of a particularly creative advocate. And yet a judge still manages to step right into it.
The story comes from Malo c Directeur des poursuites criminelles et pénales, 2024 QCCS 3222, a decision of the Superior Court issued last week, which is pithy enough that I’ll reproduce most of it, in translation. The background to it, explained in some more detail in a report in La Presse, is that Mr. Malo was about to stand trial in the provincial court on a charge of attempted murder and assorted others. The victim of the attempted murder ― and the Crown’s main witness in the upcoming trial ― was, at the time of the facts, a lawyer. But he since became a judge of that same provincial court. To be clear (and to state the obvious), not the judge who would preside over the trial at issue. Just a judge of the same court.
Over to the Superior Court’s Justice Marc David to explain what Mr. Malo and his lawyers have made of this:
[3] … [T]he applicant alleges that all 333 judges of the Cour du Québec are biased …
[4] The argument is framed in the following terms … :
Following the appointment of the prosecution’s main witness and alleged victim as judge sitting in the Cour du Québec, it became obvious that the applicant will never have a fair trial before an independent and impartial court, as provided by section 11(d) of the Canadian Charter of Rights and Freedoms, were his trial to be held as expected before the Cour du Québec …
[5] According to the applicant, this turn of events “basically raises a reasonable apprehension of bias and undermines the confidence of the public …”
[6] To support these allegations, the applicant refers to the results of an opinion poll of certain members of the public, according to which “a majority of Quebeckers (56.4 %) are opposed to a judge of the Cour du Québec being able to hear a case where the main witness is a judge of the Cour du Québec”
You will be shocked, shocked to hear how Justice David reacted to being presented with this particular Hail Mary first thing after a long weekend:
[7] The application is ill-advised and must be summarily dismissed.
[8] Without ever naming the judge designated to hear the case, the applicant is asking for each and every one of the judges of the Court of Quebec to declared disqualified due to lack of independence and impartiality. He is asking for nothing less than for the Cour du Québec to be declared to be without jurisdiction due to obvious actual and/or apparent unfairness.
[9] This position does violence to the law governing recusal of a judge in cases where the issue is a reasonable apprehension of bias.
[10] Such a reasonable apprehension must be based on convincing evidence in order to rebut the strong presumption that judges are impartial by reason of their oath.
Justice David briefly discusses some precedents, which I think we may safely skip. Suffice it to say, he is right about the doing violence to the law bit. And then he turns to the opinion poll argument:
[14] The results of a phone poll … asking only the question “Do you believe that a judge of the Cour du Québec should hear a case where the main witness is a judge of the Cour du Québec, so a colleague from the same court, who will have to opine on his credibility, as well as that of the accused?” are irrelevant … The outcome of such a poll is antithetical to the legal definition of reasonableness. The people who answered were quite ignorant of the specific context in which the applicant’s trial will take place.
[15] We would be facing the court of public opinion if reasonableness were defined by the results of this proposed poll. This could undermine public confidence in the sound administration of justice. Any judicial decision had better stay away from popular public opinion. This is the very essence of judicial independence, which is greatly responsible of the confidence of the public in our judicial system.
Oh dear. Justice David had to make an emergency ruling with the trial about to start, so he didn’t have much time to think about what he was going to say, but I wish he hadn’t just walked right into this stupid trap. Why, oh why, did he decide to wax eloquent about public confidence in the judiciary even as he was waxing equally eloquent about the imperative for the judiciary steer clear of playing games with public opinion? Didn’t he see the incoherence? Well, I suppose not.
And, in fairness, he is not alone. I’ve written about this here:
Judicial independence is often justified, both in the decisions of the courts and in the broader public discourse, by the need to maintain public confidence in the administration of justice. It seems to me that this justification is not compelling. To borrow Paul Krugman’s well-known phrase (coined perhaps in this column in the New York Times), it relies on a mythical “confidence fairy”, whose existence would be convenient perhaps, but is supported by no evidence.
On the contrary, what evidence we have suggests that public confidence in the courts is not correlated with their independence. If anything, it may be correlated with the courts making popular rulings in high-profile cases, so we might ― if we cared ― increase it by making the courts less, not more, independent.
In that post, I suggested that the public confidence argument should be abandoned because it was self-serving. The judges say: we are not expanding the protections for our independence for our own benefit ― we’re doing it so that the public can feel better! In response to a comment, I also said that “I don’t think that judges should be relying on claims that are just demonstrably not true for their conclusions”. I still think both are good reasons for judges avoiding playing confidence tricks.
But Justice David’s incautious reasons (for an otherwise perfectly sound ruling) point to yet another one: the litigants will take the judges at their word. And they’ll arrive in court armed with opinion polls, worded so as to elicit just the response the litigants want, and wave them at the judge saying look! you want public confidence, right? Well, here’s what would give the public faith.
That’s bs, in the colloquial sense, and Justice David was quite right to treat it as such. But his response ― and again, he was not at leisure to think about it carefully, and anyway followed an entirely conventional script, so I am not blaming him too much ― but his response was also bs, in the technical sense of an utterance made without regard for its truth or falsity. Judges, quite rightly, don’t give a fig for whether this or that approach to recusal would get them onside of a public opinion that cannot see the consequences of its whims. Disqualifying all the judges of a court and making an attempted murder trial collapse? Yeah, nah, nice try bro. But the judges shouldn’t pretend that they’re doing what they’re doing for the sake of public confidence. They have other, better reasons, and should own them.
Justice David concludes by insisting that
[16] … There is no doubt that a judge of the Cour du Québec will ensure that the trial is held in accordance with all the rules and in a manner that respects the applicant’s rights. This trial will take place before the independent and impartial forum that is the Cour du Québec with its 333 judges devoted to the administering justice fairly for all. In the circumstances of this case and based on the evidence, a reasonable person could come to no other conclusion.
Amen.
