Law360 Canada (September 4, 2026, 9:16 AM EDT) --

John L. Hill

Criticizing judges is not wrong. Indeed, criticism of judicial decisions is an important part of a free society. Judges are not infallible, and their reasons are properly subject to scrutiny by lawyers, academics, journalists and the public.

But there is a difference between criticizing a judgment and attacking the judge.

Mark McQueen’s Sept. 3 Toronto Star column — suggesting that several judges appointed by former prime minister Justin Trudeau are carrying a “woke” agenda onto the bench and concluding that Canadians may need “judicial recall” — crosses that line. More importantly, it presents an overly simplistic view of what judges must do when imposing a sentence.

The problem can be summed up in two words: what and why.

McQueen focuses almost entirely on the “what.” What offence was committed? How serious was it? What punishment did the judge impose?

Such questions are important, but they are not the whole of sentencing. A judge must also consider why the offence occurred. That is not judicial softness. It is fundamental to individualized sentencing.

The Criminal Code requires a court to impose a sentence that is proportionate to both the gravity of the offence and the degree of responsibility of the offender. That necessarily requires a judge to examine the circumstances of the offender as well as the circumstances of the offence. Two people can commit precisely the same offence and yet bear very different degrees of moral blameworthiness.

That is why courts consider such matters as age, background, addiction, mental illness, previous record, prospects for rehabilitation, remorse, the offender’s role in the offence and the circumstances in which the crime occurred. The fact that those considerations may sometimes produce a sentence that a newspaper columnist regards as inadequate does not make the judge “woke.” It means the judge is doing the job Parliament has assigned to the judiciary.

Consider the firearms case involving Emerson Wright that McQueen uses as his first example. Justice Kelly Tranquilli did not say that trafficking firearms was acceptable. The sentencing decision expressly recognized the gravity of the offence. The court nevertheless considered that Wright was a relatively young first offender with an established rehabilitation plan and concluded that incarceration was not the only available response.

One can disagree with that conclusion. Reasonable lawyers can disagree about whether a conditional sentence was appropriate for a firearms offence. But disagreement is not evidence of political motivation.

The same point applies to Justice Sandra Nishikawa’s sentencing of Mohamad Riahi. The court imposed a 17-month sentence for firearms offences while taking into account evidence of systemic anti-Black racism, among other factors. The fact that a judge considers an offender’s life experience does not mean that the judge has abandoned the seriousness of the offence. Indeed, the available account of the decision makes clear that denunciation and deterrence remained relevant considerations.

There is an important distinction here. A judge can understand why somebody committed a crime without approving of the crime. A judge can recognize addiction without saying that drug addiction justifies criminal conduct. A judge can recognize racism without saying that racism provides a licence to break the law. A judge can consider immigration consequences without suggesting that an offender should escape punishment.

That is precisely why sentencing requires judgment. The “why” matters because punishment is not simply a mathematical exercise in which a particular crime is assigned a particular number of years.

Take the recent sentencing decision of Justice Gillian Roberts involving Sergio Reyes Loor. Roberts concluded that five years would otherwise have been an appropriate sentence for sexual assault causing bodily harm. She imposed four years after taking into account the severe immigration consequences that would follow from the conviction.

Again, reasonable people can debate whether that reduction was appropriate. But it is entirely different to suggest that the judge reduced the sentence because of some political philosophy associated with the government that appointed her. The danger of that approach is that it encourages the public to judge a decision by who appointed the judge rather than by what the judge actually decided and why.

That is an especially unfortunate approach to judging. Governments appoint judges because that is how our constitutional system operates. Once appointed, however, they do not become representatives of the government that appointed them.

I have known many judges over the years. My experience has been that most judges take their responsibility seriously and decide cases according to the evidence, the law and their understanding of their judicial duty. Their political ancestry (or the political party in office when they were appointed) is ordinarily irrelevant to the task before them. If anything, judicial independence requires us to assume precisely that.

McQueen’s treatment of Justice Paul Schabas illustrates the problem particularly well. Schabas’s decision concerning Toronto’s bike lanes was controversial and was subsequently overturned by the Ontario Court of Appeal. The Court of Appeal was entitled to disagree with his legal analysis, and it did so emphatically. Justice Grant Huscroft wrote that the lower court had gone wrong in its approach to policy and the judiciary’s proper role.

That is the judicial system working as it should. A trial judge makes a decision. An appellate court reviews it. If the appellate court finds an error of law, it corrects it. There is no need to turn the disagreement into a political indictment of the judge.

Judges, unlike politicians and newspaper columnists, generally cannot answer their critics in the same forum. A judge cannot write a column in the Toronto Star explaining why a columnist has misunderstood the evidence or misrepresented the reasoning. Judicial ethics and the principle of judicial restraint effectively prevent judges from entering public debates about their own cases. That makes personal attacks on named judges particularly unfair.

It is legitimate to say, “Justice Schabas was wrong because the Court of Appeal held that…” It is quite another thing to suggest that a judge decided because of the political views supposedly associated with the government that appointed him. The former is legal criticism. The latter risks undermining confidence in judicial independence.

McQueen’s proposal for judicial recall is even more troubling. Judicial recall may sound attractive when one encounters a decision one regards as outrageous. But that is precisely why it has no proper place in our system.

The purpose of judicial independence is to allow judges to make unpopular decisions without having to worry that an angry electorate, or an angry political campaign, will remove them from office. Imagine a judge presiding over a politically explosive case knowing that a sufficiently organized campaign could later seek to remove them from office because of an unpopular ruling. That is not judicial independence. It is judicial intimidation.

The answer to a bad judicial decision is an appeal, not a recall election. The answer to a legally erroneous judgment is a higher court. The answer to legislation that is considered unwise is Parliament or the provincial legislature. Where judges exceed the proper bounds of their authority, the appellate courts can, and do, say so.

That system may occasionally produce decisions with which we strongly disagree. That is the price of having an independent judiciary. But there is another price we should be unwilling to pay: replacing the rule of law with the rule of public anger. Judges should certainly be accountable. Their decisions should be scrutinized. Their reasoning should be challenged. Appellate courts should correct their errors.

That does not mean excusing criminal behaviour. It means imposing a punishment that is proportionate not merely to the offence, but to the individual who committed it. That is not “woke.” It is Canadian sentencing law.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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