Thursday, September 15, 2016

Why the Judge won't reply to a Facebook post

I was recently involved in a criminal case. The judge ruled on sentence and the defendant was sent to jail for a long time – longer than I suggested but not quite as long as the Crown asked for. It was a difficult and tragic case but the result sensible and fair.

But wow the criticism online was brutal.

No one attacked me or the Crown but the judge was given a real shellacking. People made some really ignorant comments about the judgment; it was quite clear they hadn't read the decision and maybe not even the article about the decision.

Another part of the problem was that people who just saw a news story about the case were not there to hear the evidence itself. And a decision based on evidence cannot give the full sense of the evidence. When a judge says "the defendant shows great remorse" it does not convey the heart felt tears that are obvious to everyone in the courtroom. Similarly, if a judge says "the defendant showed no true remorse" it may well be the smirk or rolling eyes of the defendant are unseen except to those present.

As I mentioned the decision in my case was fair and proper. It made sense and complied with the caselaw and precedent.

Judges seem to have a lot of power – and they do – but it is not an arbitrary power. Sentencing is based on earlier court decisions and the specific facts of the offence and the offender. If a judge makes a decision that is inconsistent with prior cases or the facts before the judge an appeal court will likely overturn the decision.

The judge in my case could have easily explained why the sentence was what it was – and yet the judge said nothing. The judge didn't go on Facebook or Twitter.

Why? Was the judge too lazy or maybe just didn't care?

Not a bit.

A lazy judge is an oxymoron and judges care a great deal about what is the public perception of justice.

The problem is judges are not allowed to respond to comments or attacks on line. Judges can and do comment on broader issues not related to specific cases – say the need for more judges and Court staff to speed up the trial process – but you will never see a judge discussing a decision of their own in the media.

A judge's formal decision is the only place a judge is allowed to speak about a case. A judge cannot comment about a decision or explain it further – a judge cannot say anything in reply to online criticism no matter how ill founded. This principle makes excellent sense because a judge's decision forms the record of the case and is the subject for an appeal. If the judge were seen to vary or to explain a decision by comments in the press or online it would be impossible to have a sensible appeal process.

Of course people are totally entitled to criticize a judge's decision or reasons. Canada is a free country and people are entitled (subject to the law of defamation) to say anything they like about a decision. But remember the judge won't reply on Facebook to explain what "really" happened.

Of the Law Societies of Upper Canada and Nunavut

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