The following is a letter I wrote in response to an article titled "Let Judges Run Courts, Lawyers Say" which ran in the Toronto Star on Monday, August 13. The original articel is appended at the end of this posting.
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August 13, 2007
To the Editor, the Toronto Star:
I read with great alarm the news article in the Toronto Star of Monday, August 13 titled “Let judges run courts, lawyers say”.
The Canadian Bar Association, at its annual meeting in Calgary, has apparently endorsed a resolution asking that the government turn over court administration to the judges, stating that such action is “crucial to ensuring the independence of the judiciary”.
I would contend, however, that turning over control of the courts to the judges is effectively nothing other than turning over control of the courts to the Canadian Bar Association. One needs only recall that all judges were once lawyers, and that many judges return to being lawyers at some point in their career, to realise whose "best interests" this suggestion by the Canadian Bar Association is serving.
Given the ongoing uproar initiated by the recent MacLean’s magazine article about the billing practices of lawyers; the concern about judges altering courtroom transcripts as evidenced by the recent case of a Family Court justice at the Sheppard Avenue Courthouse; investigations like your paper’s current series into immigration; and even very recent comments by Justice Gomery about lawyer’s fees being so high as to exclude the possibility of Canadians obtaining fair and equal access to the Justice System, I can only conclude that turning over the courts to exclusive control of judges, and by extension the Canadian Bar Association, would result, not in an independent judiciary as claimed, but instead in a judiciary run by and for the stakeholders of the “Justice Industry”, and accountable to nobody.
I am not in a position to comment directly as to the billing practices of lawyers and as to whether or not all lawyers are ‘rats’. I would contend, however, that there is a kind of carnage slashing its way through the Canadian Justice System which is causing significant damage not only to the public perception of the legal system but which, indeed, is responsible for significant destruction of the fabric of Canadian society itself.
The issue of which I speak is not frequently mentioned or debated in public because it is "politically incorrect" to do so. In fact there seems to be a concerted effort at various legislative and judicial levels, and even in the media, to prevent discussion of the issue at all. I am talking, of course, about the systemic bias in Canadian Courts against fathers in divorce and custody proceedings. While it may be true that not all lawyers are rats, my experiences as a father in the Family Law Courts of Ontario over the past four years have certainly convinced me that the terms 'lawyers', 'judges', and 'justice' are mutually exclusive. It is readily apparent if you are a father stuck in this demeaning, depressing, endless, discriminatory, and financially and emotionally bankrupting farce called "Family Law" that the main purpose of the system and its "stakeholders" is not in any way related to justice or to serving the best interests of any children involved, but in fact is to further the interests of the "Divorce Industry" subsidiary of the “Justice Industry” as much as possible.
I believe, however, that the problem is not limited to just lawyers. A large part of the blame rests on the judges who, in essence, control every aspect of this farce. The results to be obtained in the "Family Law" system in Ontario have little to do with justice or the laws as intended by legislative action, but in fact, are purely the subjective whim of any given judge on any given day.
When evidence was entered in court that my wife had repeatedly abused me verbally, psychologically, and physically over many years and that she had threatened my life in front of a CAS worker the judge literally laughed in my face.
When I pointed out to another judge on a different day that the statements that I was making that she kept calling "unsubstantiated allegations", were in fact all supported by evidence that was in the documents that I had filed with the court and were sitting on her desk next to her, I was told "I don't have time to read that. No judge has time to read that."
On another day I attended a session where my case, and many others, was dealt with. At the beginning of this session the judge jocularly debated with all the lawyers present for nearly an hour as to whether or not she and the lawyers were required to wear their gowns for this particular type of session. I am sure that all the lawyers considered this as a 'billable hour' and at $300+ per hour one can only imagine how much this ended up pumping into the Divorce Industry. The judge certainly didn't instruct the lawyers to NOT bill for the hour.
I could go on listing travesties like this forever, as could most other Canadian fathers stuck in this bottomless pit. The bottom line is that the "Family Law" system is seriously broken and I would go so far as to say that this is by design and not by accident. One needs only recall that all judges were once lawyers, and that many judges return to being lawyers at some point in their career, to realise whose "best interests" the Family Law system is serving.
It is time that the Federal Government and the Provincial Governments initiated inquiries into the Divorce Industry and all of its attendant stakeholders. Tens of thousands of Canadian fathers and hundreds of thousands of Canadian children deserve no less.
No, letting judges run the courts would not enhance justice in Canada, it would result in further entrenchment of the “Rule by Judges” mentality permeating Canadian Courts which is destroying the very basis of our democracy.
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August 13, 2007
To the Editor, the Toronto Star:
I read with great alarm the news article in the Toronto Star of Monday, August 13 titled “Let judges run courts, lawyers say”.
The Canadian Bar Association, at its annual meeting in Calgary, has apparently endorsed a resolution asking that the government turn over court administration to the judges, stating that such action is “crucial to ensuring the independence of the judiciary”.
I would contend, however, that turning over control of the courts to the judges is effectively nothing other than turning over control of the courts to the Canadian Bar Association. One needs only recall that all judges were once lawyers, and that many judges return to being lawyers at some point in their career, to realise whose "best interests" this suggestion by the Canadian Bar Association is serving.
Given the ongoing uproar initiated by the recent MacLean’s magazine article about the billing practices of lawyers; the concern about judges altering courtroom transcripts as evidenced by the recent case of a Family Court justice at the Sheppard Avenue Courthouse; investigations like your paper’s current series into immigration; and even very recent comments by Justice Gomery about lawyer’s fees being so high as to exclude the possibility of Canadians obtaining fair and equal access to the Justice System, I can only conclude that turning over the courts to exclusive control of judges, and by extension the Canadian Bar Association, would result, not in an independent judiciary as claimed, but instead in a judiciary run by and for the stakeholders of the “Justice Industry”, and accountable to nobody.
I am not in a position to comment directly as to the billing practices of lawyers and as to whether or not all lawyers are ‘rats’. I would contend, however, that there is a kind of carnage slashing its way through the Canadian Justice System which is causing significant damage not only to the public perception of the legal system but which, indeed, is responsible for significant destruction of the fabric of Canadian society itself.
The issue of which I speak is not frequently mentioned or debated in public because it is "politically incorrect" to do so. In fact there seems to be a concerted effort at various legislative and judicial levels, and even in the media, to prevent discussion of the issue at all. I am talking, of course, about the systemic bias in Canadian Courts against fathers in divorce and custody proceedings. While it may be true that not all lawyers are rats, my experiences as a father in the Family Law Courts of Ontario over the past four years have certainly convinced me that the terms 'lawyers', 'judges', and 'justice' are mutually exclusive. It is readily apparent if you are a father stuck in this demeaning, depressing, endless, discriminatory, and financially and emotionally bankrupting farce called "Family Law" that the main purpose of the system and its "stakeholders" is not in any way related to justice or to serving the best interests of any children involved, but in fact is to further the interests of the "Divorce Industry" subsidiary of the “Justice Industry” as much as possible.
I believe, however, that the problem is not limited to just lawyers. A large part of the blame rests on the judges who, in essence, control every aspect of this farce. The results to be obtained in the "Family Law" system in Ontario have little to do with justice or the laws as intended by legislative action, but in fact, are purely the subjective whim of any given judge on any given day.
When evidence was entered in court that my wife had repeatedly abused me verbally, psychologically, and physically over many years and that she had threatened my life in front of a CAS worker the judge literally laughed in my face.
When I pointed out to another judge on a different day that the statements that I was making that she kept calling "unsubstantiated allegations", were in fact all supported by evidence that was in the documents that I had filed with the court and were sitting on her desk next to her, I was told "I don't have time to read that. No judge has time to read that."
On another day I attended a session where my case, and many others, was dealt with. At the beginning of this session the judge jocularly debated with all the lawyers present for nearly an hour as to whether or not she and the lawyers were required to wear their gowns for this particular type of session. I am sure that all the lawyers considered this as a 'billable hour' and at $300+ per hour one can only imagine how much this ended up pumping into the Divorce Industry. The judge certainly didn't instruct the lawyers to NOT bill for the hour.
I could go on listing travesties like this forever, as could most other Canadian fathers stuck in this bottomless pit. The bottom line is that the "Family Law" system is seriously broken and I would go so far as to say that this is by design and not by accident. One needs only recall that all judges were once lawyers, and that many judges return to being lawyers at some point in their career, to realise whose "best interests" the Family Law system is serving.
It is time that the Federal Government and the Provincial Governments initiated inquiries into the Divorce Industry and all of its attendant stakeholders. Tens of thousands of Canadian fathers and hundreds of thousands of Canadian children deserve no less.
No, letting judges run the courts would not enhance justice in Canada, it would result in further entrenchment of the “Rule by Judges” mentality permeating Canadian Courts which is destroying the very basis of our democracy.
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Let judges run courts, lawyers say
Resolution urges governments to turn over control of court operation to judiciary to ensure autonomy
August 13, 2007
Tracey Tyler
LEGAL AFFAIRS REPORTER
CALGARY–To some, having prosecutors running the court system is the precarious legal equivalent of leaving a fox in charge of a chicken coop. Yet in many provinces, including Ontario, that's reality, with attorneys general not just prosecuting people for crimes, but operating the court themselves.
But Canada's largest legal organization wants to cut those bureaucratic strings and turn control of court operations over to the judiciary. At its annual meeting here over the weekend, the Canadian Bar Association endorsed a resolution urging provincial and territorial governments to shift from government to judge-based control of court administration, calling it crucial to ensuring the independence of the judiciary.
"What we have is a situation where judges are often not masters of their own houses," said outgoing bar association president Parker MacCarthy, who brought forward the resolution.
There are practical and principled reasons for ending government control of the courts and the public will be the biggest beneficiary, he said in an interview.
While judges often know best what's needed to keep courts running smoothly, they're typically beholden to the whims of bureaucrats when it comes to deciding whether and how court budgets will be spent. This includes everything from hiring staff to rooms for juries.
But even more important is the potential for conflict of interest when the government, which regularly appears in court as a litigant, is also controlling the working conditions of the bench, he said.
Concerns about the government administering court operations were raised as long as 30 years ago, including by former Ontario attorney general Roy McMurtry. A report prepared for the Canadian Judicial Council last year said court administrators are often torn between loyalty to the government and loyalty to the judges they serve.
Complicating the situation further, the report said, is the tension that's developed in recent years between the judiciary and some provincial governments over their failures to follow the recommendations of judicial remuneration commissions and raise judges' salaries.
The report's authors, including Toronto law professors and court administration experts Carl Baar, Robert Hann and Lorne Sossin, recommended a "limited autonomy" model for court operations.
Their system would see governments setting court budgets, judges deciding how to spend the money and an independent commission set up to mediate disputes.
In other developments over the weekend, the bar association also approved a resolution calling on the federal government to scrap the GST on legal services to reduce the high cost of litigation and improve access to the justice system.
The resolution calls for legal services to be "zero rated" for the GST, not GST-exempt like groceries, said Toronto lawyer Allan Gelkopf, who chairs the association's commodity tax, customs and trade section.
While the net effect is the same for consumers – they would pay no GST on legal bills – it's an important difference for lawyers because zero-rating the GST entitles them to claim tax credits on goods and services purchased for running their law offices, he said.
However, members of the bar association who were hoping to ask Justice Minister Rob Nicholson today will no longer have that opportunity. Although Nicholson was scheduled to give a speech and take questions from lawyers – part of a long-standing conference tradition – he's been told by Prime Minister Stephen Harper he must remain in Ottawa, MacCarthy said yesterday during the conference's official opening ceremonies.
Harper is expected to shuffle his cabinet in the coming days. "I guess if your boss is the Prime Minister, you have to listen pretty carefully to those requests," MacCarthy said. Nicholson delivered a brief, pre-recorded speech yesterday by video.
