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| Norman Douglas |
That conviction now does not meet the standard of proof beyond a reasonable doubt. And it is not crumbling just because it, like so many other values our country was built on, has been Trumped.
Yes, lawyers in their black robes still refer to each other as “my friend.” They rise and bow to the judge as she walks in to take her place. That place, called the dais, is raised above everyone else. On the wall above the dais hangs the coat of arms, and sometimes the flag. The judge wears a bright coloured sash and is armed with a gavel that good judges never have to use — it is a symbol, not a weapon.
The symbol is that of authority.
Witnesses take an oath, or promise under pain of perjury, to tell the whole truth and nothing but the truth. The atmosphere is sombre and somewhat frightening. You can feel the nervousness of the witnesses.
Judges and justices of the peace are referred to as “Your Worship,” “Your Honour,” “Your Lordship,” “Your Ladyship” — can’t think of any titles more respectful — although one called me “Your Majesty” one day, and it had a nice ring to it.
Alas, times have changed.
Accepting that that lament is often uttered by dinosaurs like me — and that most innovations improve what should be changed — I am alarmed at what is happening to our administration of justice.
It really hit home during COVID. We introduced a third option to a trial by judge or by jury — trial by Zoom. I retired in December 2021, so I was a sitting judge from its inception.
There had been prior changes in the law that allowed witnesses to testify from behind a screen set up for them in the witness box. And then, from another room entirely in an adjoining room at the courthouse. Rarely, an application by the lawyers was granted by the judge in exceptional circumstances allowing a witness to give their evidence from another location.
But what happened during the COVID scare was bizarre.
I confess to something that the public sometimes wondered about. Yes, there were days I held court in my basement study, garbed from the waist up like a judge, but since no one could see my bottom half, let’s just say that my favourite song, by Neil Diamond, is Forever in Blue Jeans.
What happened in those two years when I ruled from my basement — while accused people lounged on their couches (who knows who else was in the room coaching them) and sometimes witnesses “testified” from their cars as they were on their way to get groceries — is anyone’s guess.
But one thing needs no guesswork — justice was not served. All the trappings and procedure that fostered the solemnity, behaviour and respect for the justice system were gone. Lawyers got more casual. Witnesses no longer had to testify from a box under the scrutiny of the judge.
No one had to look anyone else in the eye to tell their stories. I had to assess their credibility without watching them closely in person.
It was more difficult for judges to be in charge by their very persona. I actually had to do things I vowed I would never do when I took my oath of office. I found it necessary to raise my voice to interrupt a witness — and even had to raise it louder when they wouldn’t listen.
I was just another actor on the screen.
There were advantages to Zooming justice. We saved thousands of dollars every day across the province by doing adjournments, case conferences with lawyers, pretrials and other necessary preliminary steps leading up to trial day over Zoom. But once we dipped our shiny black shoes into the trial pool, we got all wet.
What we needed, and still do, as I observe what’s been happening to the justice system from my new perch in retirement, comfortable in my blue jeans, is leadership to right the sinking ship.
So you will understand my disappointment when I read the new federal justice minister’s inaugural comments on his plan. Sean Fraser was Justin Trudeau’s immigration and housing minister. Last December, as many Liberals were deserting another sinking ship, Fraser announced he would not run again “in order to spend more time with my family.”
Forgive my skepticism, forged from nearly 50 years of listening to lawyers, but haven’t we heard that excuse before?
Now it seems Mark Carney recruited Fraser to his new cabinet with a promise of less travel and better work-life balance.
When asked how he would handle the heavy responsibility of being the justice minister and attorney general, and still spend time with his family, his response was that he will be based in his hometown in Nova Scotia and would “sometimes participate remotely in House of Commons proceedings.” He projected that the justice system is “quite accustomed to having meetings virtually ... so we’re going to figure some of this out as we go.”
I’m wondering if the phone calls went something like this:
December 2024
Sean (to Justin): “I’m not running again — we don’t stand a chance.”
Justin: “Another rat deserting my sinking ship.”
Sean: “I will say the reason is I need to spend more time with my family.”
Later...
Justin and Sean both say they need to spend more time with their families.
Mark Carney wins the leadership, apparently does not need more time with his family.
Mark (to Sean): “Join my team and you can do what all the young people are doing now — work from home.”
Sean: “So I can skip all those boring ground-breakings and useless building openings? And my kids are driving me crazy...”
Mark: “Yes, and I don’t know who to make justice minister — you know anything about Justice?”
Sean: “Not really, but I can’t make it any worse than it is. Can I make it up as I go?”
Mark: “Sure, that’s what I’m doing...”
Norman Douglas is a retired criminal court judge with 27.5 years of experience on the bench. His book, You Be the Judge, was published in December 2023.
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