.

THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD August 7, 2002

The law demands courtesy
in a courtroom or else!


Over 2000 years have elapsed since the Greek philosopher, Socrates, counseled judges to " hear courteously, answer wisely, consider soberly and to decide impartially ". Insofar as Canada's 2,000 federally and provincially appointed judges are concerned, his advice is just as relevant today.

The Quebec's Judicial Code of Ethics takes it one step further by obliging every provincially appointed judge, under pain of disciplinary measures, to " act in a reserved, serene and courteous manner".


While there is no written code of conduct for federally appointed judges, the Canadian Judicial Council's guide on ethical standards refers to their obligation to be patient and to treat all before the court with courtesy so as to not destroy their appearance of impartiality.

As for Quebec lawyers, they too must exhibit respect and proper decorum towards the courts, the reason being that such conduct enhances public confidence in the administration of justice. The Quebec Code of Ethics of Advocates obliges each and every member of the Quebec Bar to conduct themselves in court with "objectivity, moderation and dignity " and to " serve justice and support the authority of the courts."

Symbolic gestures of this traditional respect are evident every time a judge enters the courtroom. Once the room is called to order everyone stands, followed by the occasional exchange of bows between the judge and members of the Bar.



Considering the obligation of both judges and lawyers to treat each other with mutual respect and courtesy, one could easily be misled into believing that every criminal trial is conducted much like a diplomatic negotiation. Not so, of course. Trial lawyers form a unique group of professionals who work within an adversarial system. During the course of their often long and heated court arguments, they occasionally cross the line and behave in a disrespectful manner. When they do, however, they expose themselves to on- the- spot disciplinary measures by the presiding judge. Rudeness, swearing, provocative or disruptive conduct can easily lead to an initial tongue -lashing-style warning by the presiding judge and always in the presence of the public and occasionally the media. If an attorney persists and deliberately disobeys a direct order of the court he or she can be charged with contempt and in extreme cases, be fined or jailed.

Criminal contempt includes any act that tends to bring the court into disrespect. Most experienced lawyers get to know "their " judges and in the heat of the action try not to cross the judge's tolerance level.

As an additional tool to help maintain the court's authority and dignity, an aggrieved judge can always file a complaint to the Trustee of the Quebec Bar who is in charge of disciplinary matters and whose mandate includes investigating the conduct of all lawyers.



While judges who violate the rule of courtesy and respect are not subject to any summary disciplinary measures, they too risk being reprimanded in the event of a complaint.

Complaints against Quebec appointed judges fall under the jurisdiction of the Conseil de la Magistrature, which is made up of 15 members, including the Chief and Associate Chief Justices. If after an in-house investigation, it is proven that the complaint was well founded the judge can expect to receive a written reprimand. For serious infractions the Council may recommend to the Attorney General that the petition for destitution be presented before the Quebec Appeal Court.

Insofar as complaints against federally appointed judges, they fall under the responsibility of the Canadian Judicial Council. If after an initial screening the matter is considered serious, it is referred to a Panel of up to five Council members. Following a fact-finding investigation by independent counsel the Panel can close the file, with or without, an expression of disapproval of the conduct, which led to the complaint. In serious cases, it can recommend to the full Council that there be a formal investigation to determine whether the judge should be removed from office.


The highly publicized complaint in connection with Judge Boilard's remarks vis-à-vis Quebec attorney, Gilles Dor, is a good illustration of just how the federal judicial complaint system works. Justice Boilard had chastised the attorney when he tried to get his client released during a bail hearing and labeled his motion as" overblown rhetoric and hyperbole ". He suggested that Dore was insolent and the accused might have actually ended up in a worse position with Dor representing him. As a result Me Dore filed a complaint against the judge in July 2001.


Following the reception of the complaint, the then Vice-Chairperson of the Judicial Conduct Committee, the Chief Justice of the Federal Court of Canada, asked the late attorney, Bruno Pateras to undertake 'further inquiries'. Subsequent to the receipt of his report, the Chief Justice referred the file to a Panel consisting of two Chief Justices and one Judge of the Court of Appeal for Ontario. While the Panel concluded that the judge's remarks were unjustified and unacceptable, the members agreed that they did not warrant any full-blown investigation and closed the file. A few weeks ago Me Dore was advised accordingly and as to Judge Boilard, he was advised of the Panel's concerns in a scathing letter, which was leaked to the media.

The fact that the odd judge still shows the occasional lack a lack of respect towards the litigant attorneys and gets away with it is largely a tribute to the reluctance of many trial lawyers to resort to the complaint process. Very few relish the idea of provoking the ire of the very judges who are assigned to their cases.

However, one thing is certain. If it where not for the threat of disciplinary measures lurking over the heads of both the attorneys and the judges, some courtrooms would end up looking like an old time Texas bar on a Saturday night .In the heat of the action, those who couldn't make their point with words would probably end up using their fists.