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| Norman Douglas |
Like Toto, I wanted to draw back the curtain and reveal the wizard. But here’s the difficulty: I was the “wizard,” and my dog Casey didn’t know how to draw back a curtain. So I decided to do it myself.
Step number one: My first step was to write a book and hopefully get it published. You Be the Judge was published in December 2023 by Irwin Law (later merged with University of Toronto Press). It is now in its second printing. The premise? What would you do in these 24 cases I either prosecuted or judged (12 of them homicides) if you were the judge or jury?
Step number two: That book opened up many doors. I have been and am scheduled to be the guest speaker at several organizations. My topic, of course, is the justice system — but I do not make a “speech.” I get a volunteer from the audience to come forward for each of three cases in my book, hand them my gavel, and ask them to tell me and their colleagues what they would do if they were the judge. I give them a brief sketch of the case but hold back a few details. Then the fun starts as people from the audience are asked whether they agree. We then have a discussion on some of the major controversial issues that our politicians are going public with (the bail system, self-defence, the appointment of judges, minimum sentences, the parole system, delays and backlog, plea bargains and joint submissions, would you be a tough or lenient judge…).
Step number three: My first column for Law360 Canada was published exactly two years ago. This is my 25th.
Today, I want to respond to Premier Doug Ford and three other provincial premiers’ attempt to convince the federal government to give them more input into the appointment of federal judges.
Most Canadians have no idea how somebody gets to be a judge.
The short, but not simple, answer is they are appointed by the government (the attorney general for provincial judges and the justice minister for federal judges) on the advice of Judicial Advisory Committees (JACs). These committees sift through hundreds of applications to select whom they will interview.
OK, then who are those people? Now it gets a tad more complicated. Since none of my previous two dozen columns have been boring, I won’t start now.
Suffice it to say that it is the best system we have been able to come up with to keep appointments from being completely political.
When I was sitting in Guelph, Ont., I wrote a song: “There must be 50 ways to lose your backlog.”
So, with apologies to Paul Simon, I am now going to sing — there must be 50 ways to pick a good judge and maybe someone will sing it for Premier Doug Ford. I can’t seem to get his ear, although if you have been reading any of my articles you know it ain’t for lack of trying. Most of these suggestions can be found interspersed throughout my two-year gig with Law360 Canada, but now I would like to put them all together. There is no such thing as a perfect human judge. But if I was a member of a JAC, here’s what I would be looking for:
1) A track record for getting things done
2) Humility, gratitude
3) Will take the job seriously, but will not take themselves too seriously
4) Sense of humour
5) Loves their family
6) Will answer the following (some are “trick” questions) correctly:
7) Will you be a judge that leans toward the minimum sentence or the maximum?
8) Will you have the reputation of being tough or lenient?
9) Tell us what you think of Judge Judy.
10) Will you grant adjournments?
11) How will you address lawyers who are late for court?
12) What is your political affiliation?
13) What is your view on our system of selecting judges?
14) Have you ever lost your temper?
15) What do people say about you? How would they describe you?
16) How would you ostracize yourself from community associations and events?
17) Are there any specific groups of people that you dislike?
18) What do you think of the admonition “Judge not, lest you be judged”?
19) Will you “reserve” decisions to later dates?
20) What do you think a “life sentence” should mean?
21) How many people are in this room?
22) Do you think a homeowner is lawfully entitled to shoot an intruder?
23) What would you do if an accused appeared before you and you knew them?
24) How would you treat the court staff?
25) If one of them asked if they could speak to you in your chambers privately, how would you respond?
26) In a nutshell, how would you run your court?
27) Would you sentence addicted people any differently?
28) How about people with mental health issues?
29) If someone at a social gathering asked you what you do for a living, what would you say?
30) What time do you think court should start and finish?
31) Do you do any physical exercise?
32) What are your extracurricular activities?
33) Define “remorse.”
34) Should there ever be humour coming from the bench?
35) When would you use your gavel?
36) When would you hold anyone in contempt?
37) How would you handle a child crying in the gallery? In the witness box?
38) When the Crown closes its case, the defence is about to call its witnesses, but in law, there is no case to meet. What would you do?
39) At the close of all the evidence, who would you call on to give their argument first?
40) If you are about to start a case where there are 20 charges on the information, what would you do?
41) How would you handle sarcasm or name-calling by counsel?
42) With a self-represented accused, what are the landmines?
43) Would you allow the accused to sit at the counsel table?
44) Would you give any instructions to witnesses or counsel if they are using an interpreter?
45) To qualify a witness as an “expert,” how would you proceed?
46) Would it ever be appropriate for you to assist a counsel in doing their job?
47) What should you watch out for when victims are reading their impact statements?
48) Should you ever insist that civilian witnesses be called before police officers?
49) What is the most important duty of a judge?
50) Would you ever jump a joint submission?
After you have had a chance to think about this, I will tell you what I believe are the “correct” answers in my next column.
Norman Douglas is a retired criminal court judge with 27½ years of experience on the bench. His book, You Be the Judge, was published in December 2023.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.