Over a 30-plus-year career in law and as a former magistrate, I am pleased to say there has been a steady positive evolution in both our judiciary and our jurisprudence.
Unlike in the past, the present complement of our judiciary each possesses the comportment and temperament the esteemed position demands. They are in all respects judicious, something which those of us who are senior attorneys truly appreciate.
The quality of the judgments in the Supreme Court has also markedly improved. Of course, there will always be dissection in the final rulings they deliver but the better defined and expressed rationale and reasons included in the rulings make it easier to accept or appeal than they have been in the past.
However, as in any profession or any jurisdiction, the fact that there is still room for improvement was demonstrated in a recent matter that exploded beyond the courtroom to the public domain.
It reminded us that it is not just the rulings that are relevant when trying to create the finest judiciary possible, it is also the practices and principles of those who sit in the highest seat in the courtroom.
As practitioners, we tend to know the tolerance level of our justices to our arguments and our own personal antics. With experience, we not only get a better understanding of the law but also our judges. So, there is nothing more disheartening for a lawyer, no matter how expert or experienced, than not being able to defend yourself in the very courtroom where you make a living defending others.
I cannot countenance being confronted with anything nearly as egregious as what was accounted in a letter to the Chief Justice penned by my friend and colleague Christina Galanos.
While I don’t speak to the truth of the contents of the letter I am confident that there is no sitting justice of our Supreme Court or Court of Appeal who would condone or emulate such reprehensible conduct. I stand with each of them and my fellow colleagues who believe that judges, as well as attorneys and clients, should be accountable when they conduct themselves in a non-judicious manner.
The power of magistrates and justices in the courtroom is almost absolute subject only to appeal, but that comes after. We are admonished upon entering this profession to present our argument TO the judge but never argue with a judge. We know that no good can come from alienating a judge from the soundness of your argument and sadly there is an unspoken rule never to complain publicly about a judge you may end up before in another matter.
I say the power is almost absolute because there is accountability in the hierarchy of the judiciary and there can be accountability through public scrutiny.
Mrs. Galanos did the right thing although she felt constrained to do so. As attorneys, we should be at the forefront to defend our right to loosen these constraints. Our timidity in the face of wrong only perpetuates our self-preservationist conduct by cowardice.
The situations in which we see a less than judicious act by a justice are rare but that does not mean they should be overlooked. Every justice I have ever known has been hard-working, diligent, striving to do the right and honourable thing, knowing lives are at stake and their rulings matter. They have also been under-resourced so what I am offering is accompanied by absolute respect for the role of justice. But justices, when they do err, must be held accountable just as we as lawyers are accountable and our clients are accountable. That means we must be more prepared to call out all conduct that has the potential to compromise the gigantic strides we have made in shoring up our judiciary.
Whether it is failing to disclose a conflict of interest or coming into information in the absence of one or more parties to the action or failing to adhere to the rule of law during the process, the old adage that “Justice must not only be done but must manifestly and undoubtedly be seen to be done” rings true.
Finally, one of the biggest challenges to the integrity of the judiciary is when one of its members fails to conduct him or herself judiciously. For this, there should be strict accountability and if attorneys continue to feel constrained to call this out when it occurs it will fester and corrupt the entire process.
Tanya N. Wright