Last year, I wrote about a series of outbursts by a provincial court judge in Quebec in response to criticism by a La Presse columnist, Yves Boisvert. Justice Joëlle Roy read out, in open court and in a trial that had nothing to do with Mr. Boisvert’s column, a statement detailing just how hurt her feelings were, and then pulled out of the trial altogether. I was not impressed by Justice Roy’s conduct:
I am sure that it is thoroughly unpleasant for a judge to read public criticism, whether on a blog like this one, in a journal article (assuming judges read those once in a blue moon), or in a newspaper. It must hurt, and it must hurt all the more when it follows on from criticism delivered by the Court of Appeal, to which judges are sensitive. But, again, this comes with the office and with the nicer things about it. When you work for the public, especially in a position that involves sending members of the public to prison ― or failing to do so ― you have to put up with public scrutiny and even with public nastiness. If you don’t like that, you always have the option of resigning, and freeing up the spot on the bench for someone who is better able to cope with criticism. Who knows, they might even give less occasion for such criticism into the bargain.
But it looks like the decision about whether to stay on the bench after all may be taken out of Justice Roy’s hands. La Presse now reports that a “committee of inquiry of the Conseil de la magistrature [i.e. Quebec’s judicial council] … must decide whether she failed in her duty of reserve and equanimity” (translation mine, here and below). Justice Roy is now regretful, at least up to a point, and says she should have acted differently. But she persists in denouncing the “violence” of Mr. Boisvert’s column and in claims that it “was not an ordinary article”. I’m not sure what makes an article “ordinary”, but as I said in my previous post, Mr. Boisvert’s column was
not a personal attack. It [was] criticism of the manner in which an office-holder discharge[d] her duties. But even a personal attack does not justify the “words are violence” move that Justice Roy pulls with an obliviousness that would be comical if it were less sad.
I don’t know the relevant precedents (if any… Justice Roy’s behaviour has in fact been described as unprecedented by lawyers quoted in La Presse‘s articles) well enough, and sadly have no time to look into them, to predict how this will end. But I think I shall shed no tears for Justice Roy is she has to leave office. What she did really was quite serious ― as the committee of inquiry’s lawyer, quoted by La Presse, points out, in responding to criticism in open court, she misused her office, in effect for a personal purpose ― and of course there is the question of whether a judge so sensitive to criticism should be on the bench even apart from that.
There is one element of this story that troubles me, however, though here too I don’t know what the precedents are and how others may view the issue. I’d be grateful for readers’ thoughts. It is this: “one of the two complaints against Justice Roy was brought by a deputy director at the Criminal Prosecutions Service of the Director of Penal and Criminal Prosecutions, Me Sophie Lamarre”. La Presse’s report doesn’t specify whether Me Lamarre had any direct involvement in the case where Justice Roy pulled out of the trial, or indeed in any other case with her. CanLII seems to suggest that Me Lamarre hasn’t personally prosecuted cases in recent years, which makes sense given her position. So she is, in a sense a stranger to the controversy. Legally, this doesn’t matter: s 263 of Quebec’s Courts of Justice Act provides that “any person” can make a complaint to the Conseil de la magistrature.
But I’m not a fan of a high-ranking prosecutor (or any government lawyer) doing this in a case they are not involved in. I’m inclined to think that regard for separation of powers should counsel against such complaints, even though, of course, they are disposed of by an independent institution, i.e. the Conseil de la magistrature. The government, or a representative of the government, should not, ideally be trying to get a judge removed from office. What makes things even more unpleasant is that, where judges of the provincial court are concerned, if the Conseil de la magistrature thinks there are grounds for removal from office, it is the Minister of Justice ― i.e. the boss of the Director of Criminal and Penal Prosecutions ― who requests the Court of Appeal to report on whether to recommend removal.
To be clear, I am not suggesting any sort of impropriety being afoot in this case or more broadly. It’s just a bit of an “ick” factor. And I’m not suggesting a categorical rule either. Obviously, if a judge behaves unprofessionally towards a lawyer, the lawyer should be free to complain, regardless of their position. But otherwise I think it might be better if complaints about judges came from members of the public, and not officials. Government lawyer, like judges, though not perhaps to the same extent, should be thick-skinned.