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| Norman Douglas |
What they do not have is the presumption of innocence. Nor do they require the state to prove guilt beyond a reasonable doubt. Nor do the accused have any “rights.” So they can’t “get off” on a “technicality.” If you are accused of a crime, you are likely going to be convicted and punished harshly, perhaps even executed.
This recent hullabaloo over Premier Doug Ford’s comments ceases to become an academic argument when you or a loved one is accused of committing a criminal offence. Then you will be praying, especially if you are innocent, that you do not get a tough judge.
Ok, can you define what kind of a judge you think should be appointed in Canada? Would YOU be a good judge? Would you be tough? In my just-published book You Be The Judge you get that chance.
There are 24 cases, 12 of them homicides, where you get to decide, either as a judge or member of the jury, what happens to the accused. I was either the prosecutor or judge in all of them, so in the end, you also get to make an informed decision whether, at the end of my 27.5 years on the bench, I was a “tough” judge.
On Feb 26, three days ago as I am writing this, Betsy Powell contacted me asking for my thoughts on the Premier Ford controversy over judicial appointments. Betsy is the well-known and respected justice and crime reporter for the Toronto Star. Her dad, Clay Powell, who recently passed away, was a giant in the criminal justice system in Ontario — one of my heroes ever since I was a young assistant crown attorney in 1973.
The next day at 10 a.m., Betsy and I met at a coffee shop in Collingwood and her interview of me was printed today, Feb.29. Peter Carter saw the article and asked me today if I would write this piece for Law 360 Canada.
When you are 77 years old, you tend to be a “giddy-up” person if you need to get something done.
Now, I have learned to trust Betsy. Her piece was right on the money, accurate, fair and well-written. So when the first person contacted me today and sent the article that had been picked up by another media outlet, and the headline was “Former judge slams Premier Ford’s comments,” I gulped, but knew that Betsy did not write that headline. Sure enough, when she sent me what she wrote — that was neither her headline nor her take on what I said, at all.
I did not slam anyone. I disagreed with someone’s opinion, and hopefully respectfully articulated my reasons.
But ironically — the headline was a perfect example of the theme of my book! The public reads the headlines in the news and jumps to a conclusion. How many of you readers have ever been inside a Canadian courtroom and observed a case from start to finish? How many have watched news coverage of a story on CNN and the same story on Fox and concluded that the truth lay somewhere in between? Or maybe nowhere near either one?
So my book is set up to get the reader inside the mind of the judge as the case develops in the courtroom. When senior judges mentor new judges (new appointments will “shadow” experienced judges for a few weeks before sitting on cases of their own), the new appointee actually takes a chair on the dais beside the presiding judge for that day. In my book, I invite the reader to take their seat beside me as we hear the case together. The reader must make their decision before they know what I actually did in the case.
Now to what I said about the premier’s comments:
The way Ontario judges are appointed now is the best system we could hope for. The Judicial Appointments Advisory Committee was introduced by Attorney General Ian Scott back in the 1980s. Other provinces and countries around the world have adopted the same process. It works.
The selections by that committee have been chosen on merit — not by political stripe. No system is perfect. Some of the appointees have been reprimanded or even terminated by another committee — the Judicial Council. But all of us were chosen after a thorough vetting by representatives from different walks of life where they were respected leaders in the community.
So there would have to be a better reason to change this system than that offered by the premier. Not tough enough? Not like-minded? Whose mind? The political party in power at the time? What about a judge that believes they should be kind and compassionate when they can, but tough when they must?
Read the cases in my book and you will get a clearer understanding of what I mean when I tried to follow that general rule for 27 years. I was tough … sometimes. I was soft … sometimes. Was that wrong? Well, it depends on the individual case, right? Exactly. Now you get why I wrote the book.
That is why Ford’s comments are off the mark. Our society needs to give discretion to our law enforcement officials. I am not “slamming” Doug Ford. I would love to sit down with him and respectfully try to convince him that he should reconsider.
Even better — I would like to be appointed by his Attorney General to the Judicial Appointments Advisory Committee.
Norman Douglas is a retired criminal court judge with 27.5 years’ experience on the bench. His book You Be the Judge was published in December.
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.