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The lawyer doth protest too much, methinks. The Coming Supreme Court case of Doré v. Bernard

One of the more novel cases that the Supreme Court will hear in their winter 2011 session is Doré v. Bernard, a case stemming from a 2001 incident in the Quebec Superior Court that landed at SCC via the Quebec Court of Appeal (2008 QCCA 1438). The case concerns the ability of a lawyer to openly criticize judges, and raises interesting issues of freedom of expression in a court-related context.

The case also contains the delightful irony of having judges decide exactly where the line should be drawn in criticism of their own behaviour. We probably should not expect more than low murmurs of mild discontent from the criminal defense bench and other interveners if the SCC upholds the QCA ruling.

Factual Background

In 2001, criminal lawyer Gilles Doré made an application for judicial interim release (i.e. a bail hearing) before Quebec Superior Court Justice Jean-Guy Boilard. Justice Boilard denied bail in the hearing, and also sent some parting shots in the direction of Mr. Doré. Specifically, the Justice let Mr. Doré know during the hearing that he felt defense’s arguments were completely ridiculous and full of overblown rhetoric and hyperbole, as well as mentioning, in front of Mr. Doré’s client, that “an insolent lawyer is rarely of use to his client (translation).”

In response to this outburst from the bench, Mr. Doré fired off a rather scathing and personal letter to Justice Boilard. Lawyersweekly.ca translated the letter as follows:

Sir,

I have just left the Court. Just a few minutes ago, as you cowardly hid behind your status, you made comments about me that were both unjust and unjustified, scattering them here and there in a decision the good faith of which will most likely be argued before our Court of Appeal.

Since you marched out quickly and refused to hear me, I have chosen to write a letter as an entirely personal response to the equally personal remarks you permitted yourself to make about me. This letter, therefore, is from man to man and is outside the ambit of my profession and your functions.

If no one has ever told you the following, then it is high time someone did. If your chronic inability to master any social skills (to use an expression in English, that language you love so much), has led you to become pedantic, aggressive, and petty in your daily life, it makes no difference to me; it seems to suit you well.

If however, you deliberately introduce these character traits while exercising your judicial functions, and you make it your trademark, then it concerns me a great deal, and I feel that it is appropriate to tell you.

Your legal knowledge, which appears to have earned the approval of a certain number of your colleagues, is far from sufficient to make you the person you could or should be professionally. Your determination to purge any humanity from your judicial position, your essentially non-existent listening skills, and your propensity to use your court – where you lack the courage to hear opinions contrary to your own – to launch ugly, vulgar, and mean personal attacks not only confirms that you are as loathsome as suspected, but also casts shame on you as a judge, that most extraordinarily important function that was entrusted to you.

I would have liked to say this to you personally but I highly doubt that, given your arrogance, you are able to face your detractors without hiding behind your judicial position.

Worse still, you possess the most appalling of all shortcomings for a man in your position: You are fundamentally unjust and I doubt that that will ever change.

Needless to say, the Justice was less than pleased with this informal dressing down, and forwarded the letter to the Chief Justice of the Superior Court. Doré ended up being suspended for 21 days by the Quebec bar. Doré also filed a complaint with the Canadian Judicial Council, which resulted in a disciplinary finding that Justice Boilard showed a “flagrant lack of respect” towards an officer of the court, one that threatened to unjustifiably undermine his reputation in front of his client, the court, and the public.

Basis of Appeal

The legal aspect of the case is no less intriguing than the tempers, egos, and vitriol apparent in the facts.

Doré was suspended under the Code of Ethics of Advocates, a professional code that lays out the responsibilities of lawyers of the Quebec bar. The Code demands that a lawyer’s conduct and criticism are done with “objectivity, moderation, and dignity” and in a fashion that does not act to derogate from the profession’s honour or dignity. Doré’s constitutionality challenge failed under a section 1 analysis as a reasonable limit, and this was the primary basis for his appeal. He argued that there was no evidence adduced as to why this limit on his freedom of expression was reasonable under s. 1, and that the judicial system did not require the protection of this type of disciplinary hearing and sentence.

I – The Charter Argument

The disciplinary committee conceded that section 2.03 of the Code of Conduct for Lawyers may violate members’ Charter section 2(b) right of free expression, and determined that any infringement was reasonably justified in a free and democratic society. The Quebec Court of Appeal also determined that this was an obvious infringement, and spent the majority of their time dealing with the section 1 analysis. The committee made reference to a separate disciplinary committee case, LeBoutillier, which denied a lawyer the right to call a judge “abhorrent”, “arrogant”, and “fundamentally unfair.” In restricting a lawyer’s freedom of speech the committee noted that lawyers and judges must work together in the best interests of justice, and that unruly and vitriolic behaviour does not serve that purpose.

In LeBoutillier, as here, the court appropriately noted that a lawyer does not necessarily cease to be a member of the bar and an officer of the court when writing a personal letter to a judge. Moreover, in the sense that the series of insults were a direct result of the Judge’s conduct in a case, it is virtually impossible to overlook the professional context in this case.

The Court of Appeal looked to the Supreme Court case Multani v. Commission scolaire Marguerite-Bourgeoys 2006 SCC 6, in setting out the standard that “minimal (and reasonable) impairment” is what the court requires to uphold an infringement under section 1. The appellant’s argument against his censure was that the committee adduced no evidence to justify the infringement of his liberty, and cites R. v. Kopyto (1987), 39 C.C.C. (3d) 1 (Ont. C.A.) in which Justice Cory stated that “the courts are not fragile flowers that will wither in the hot heat of controversy.”

Doré v. Bernard sets up as an interesting argument. When ordinary citizens shout about the injustices served upon them by the legal system from the courthouse steps, their right to do so is and should be protected (save limits such as hate speech). What if this ordinary Canadian is a lawyer? Does it matter if they are involved in the case that they are complaining about, or does their standing as a member of the profession cast doubt upon the legal system when they air their grievances? In a perfect world, lawyers would have complete freedom to speak their mind about the courts, judges, and judicial decisions, but the argument that this could have the effect of undermining confidence in the legal system does not seem too far-fetched.

The objective of the act

To uphold legislation through section 1, the court must go through the Oakes test. The first step is to prove that the impugned legislation, here the Code of Ethics of Advocates, has an important legislative intention.

Here, the goal of protecting the court system is clearly one that qualifies as an important legislative intention, and the appellant did not contest this aspect. The court notes that the two major measures adopted by Parliament to achieve the goals inherent in this act are education and discipline.

It seems clear that the disciplinary committee did not stray outside the bounds of their legislative framework, and as such the Court’s finding that the objective was valid and that the decision sought to uphold it was reasonable, and likely will not face a great degree of scrutiny from the Supreme Court.

The proportionality of the infringement

As noted by the Court, this is the heart of the dispute. The proportionality test consists of three elements. 1) The measure must have a rational connection to the target; 2) the measure must be the least intrusive with respect to the freedom guaranteed; and 3) there must be proportionality between the effects of the measure restricting freedom under a recognized and important goal.

Rational Connection – The Court of Appeal found that there was a rational link between the punishment and the protection of our court system. They characterized lawyers as having the exclusive privilege of being auxiliaries of justice, and given this important role conduct considered inappropriate requires punishment. The court maintains that when Mr. Doré attacked the Justice as being “fundamentally unfair”, he directly attacked the very foundations of a judge’s role in our society and our justice system.

Although Mr. Doré’s attacks are very harsh, very personal, and hit very close to a lot of important judicial functions, I do not feel the Court of Appeal spent enough time dealing with the importance or relevance of context of the communications in question. In my opinion, the justice system is best served by the honest, comprehensive, and full-throated debate of legal issues and judicial decisions. Mr. Doré should have the right to publish a step-by-step denunciation of Justice Boilard’s decision on the front page of the Globe and Mail (or, more appropriately, the Gazette) if he so chooses. The Court should not in any way be influenced by the fickle beat of public opinion, but the public has every right to know what is happening in Canadian courts.

To my mind, the ad hominem nature of the insult and the fact that it concerned the Justice’s fitness to hold his position is what is important in saying that there is a connection between protecting the court system and disciplining lawyers. If this had been an enraged (but nuanced) letter detailing the aspects of the bail application that should not have been so easily dismissed by the Justice, punishment would not be appropriate. Given the novel nature of this case and the uncertainty of predicting when the Supreme Court will have another opportunity to speak on a lawyer’s professional freedom of speech, my hope is that a clear standard and delineation of acceptable and unacceptable speech will be drawn.

Minimum impairment

Next, the court found that Article 2.03 of the Code of Conduct did not absolutely prohibit free speech (para. 48). Additionally, the court noted that the serious consequences involved do not seem unreasonable with respect to a serious ethical breach. If we accept the seriousness of the offence and the need for punishment, then the precise punishments in place are appropriate in a case like this where there was a temporary suspension for a flagrantly personal letter that constituted a serious breach.

Proportionality

In keeping with the tenor of the decision to this point, the court determined this law was proportionate as it did not restrict rights more than necessary, and only sanctioned purely offensive behaviour.  The offensive nature of the comments in the letter made the conclusion of proportionality seem more obvious then it really is. To have reasonable penalties in place to stop vile, offensive, and personal insults seems to be a rather obvious limit on freedom of speech in this context.

On the other hand, whether sanctioning everything that falls short of being “objective, moderate, and dignified” can be held as a reasonable limit is a slightly different question. It will be interesting to see how much the Supreme Court sticks to the facts in this case as opposed to dealing with the entirety of the provisions that are under review.

Conclusion

Reviewing freedom of speech issues can often put the reviewer in the somewhat awkward position of defending a person’s right to make comments that are far less defensible on their own merits. Here, having a judge basically take a broad-side shot at your professional credibility for no apparent reason would no doubt be infuriating, but Mr. Doré’s response was equally petty, albeit much less public. In my opinion, the tragedy in this case is that Mr. Doré did not simply have the Judge excoriated through the formal process of reviewing judgments.

I wait with anticipation to see where the SCC draws the line on a lawyer’s ability to criticize a justice. It would be nice to see a discussion of the context of a lawyer’s intemperate comments, especially in an age where it is increasingly easy to put your opinion out there for the world to read.

[filed: Dore v. Bernard Freedom of Expression]

10 Responses to “The lawyer doth protest too much, methinks. The Coming Supreme Court case of Doré v. Bernard”

  1.               Corey Wall

     

    Is criticism in moderation really criticism? The most difficult aspect of the practice of law for me personally is the “chilling effect” it has had on my commentary about the administration of justice. It will be interesting indeed to see how the SCC deals with this.

  2.               Ken Chasse

     

    On Wednesday, January 26th, the SCC will hear the appeal in Doré v. Bernard concerning Charter of Rights s. 2(b) “protected speech” in regard to lawyers criticizing judges. In comparison to Doré’s statement, the statements made on April 20, 2009, by the Minister of Justice and Attorney General of Canada, Rob Nicholson, on 2nd Reading of the Truth In Sentencing Bill (now in effect) were far more contemptuous of judges and damaging to the administration of justice. But for Parliamentary privilege, he should have been disciplined for his insults to the judiciary of Canada who preside in our criminal courts. I think they are of the same damaging quality as those in Kopyto (Ont. C.A., 1987), cited in Doré (Que. C.A.). Kopyto’s statements were said by the Ont. C.A. to be “calculated to bring the administration of justice into disrepute,” but protected by Charter of Rights s. 2(b) freedom of expression. In a recently published article, I said that A.G. Nicholson breached the duty borne by every lawyer, in any public forum, to show respect for the judiciary and not make statements that bring the administration of justice into disrepute; see: Ken Chasse, “Untruth In Sentencing Credit for Pre-Sentence Custody” (2011), 15 Canadian Criminal Law Review 75 at 102. The Appendix (pp. 104-109) contains A.G. Nicholson’s full statement in the House of Commons. If I am wrong, then A.G. Nicholson’s 2nd Reading statement sets a standard justifying an extension of the protection provided by Charter of Rights s. 2(b) for “public speech” by lawyers criticizing judges and bringing the administration of justice into disrepute. Therefore, Doré’s “private speech” should not have been disciplined, nor Doré suspended.
    –Ken Chasse, Toronto, Canada.

  3.               John G

     

    Surely it makes a difference that Mr Doré’s letter was private. It did not bring the administration of justice into disrepute simply because it did not affect the reputation of the administration of justice at all – until the judge and his Chief made it public.

    Then the Canadian Judicial Council basically agreed with his criticisms.

    The case seems one of the Legal Establishment closing its ranks around the judiciary, as it does as a reflex, without actually giving a bit of thought to the facts of the case. I for one am unable to believe that suspending a lawyer for 21 days for a private letter to a judge is a reasonable limit on freedom of expression in a free and democratic society.

  4.               m.diane kindree

     

    Hello,

    Ken, thank you for presenting a very interesting and compelling argument.

    Isn’t this just another case of personal and professional failures to self-regulate? In theory, all members of the legal profession (lawyers, judges, paralegals, etc.) should act honourably, independently and competently to ensure the litigants receive a fair and just hearing. Professional Acts define both the conduct expected of lawyers (Legal Professional Act) and judges (Judges Act (Federal) which should be of the highest professional standard (respect) beyond what one would expect from the general public. In my mind, this respect would imply a greater reverence for the freedom of speech (practices and principles) in this country, not less.

    In the case of Federally appointed judges, the Canadian Judicial Council, Provincial AG or the Minister of Justice of Canada have a complaints process. Why didn’t this lawyer file a formal complaint? It is the provincial Law Society which reviews alleged acts of professional misconduct filed against lawyers. Based on what I read, the Judge forwarded the letter he received to the Law Society for review.

    I believe integrity is a measure of one’s ability to self-regulate (morally and ethically) and adher to the rules of law and the profession in service to the public. Should personal attacks (from the bench) or angry prose (delivered by letter) be defended as reasonable expressions of one’s entitlement to freedom of speech? In my humble opinion, our fundamental rights of freedom of speech (Charter), which are not absolute, must stand for higher principles and ideals than what is being presented before the courts in this case. I am somewhat intrigued with the idea that lawyer’s should have the same freedom of expression (about the justice system and those working in it) as the public and the Attorney General of Canada. No system of government or justice works unless there is an equally well-defined measure of accountability and input from all the stakeholders. One important source of feedback is the open, honest and constructive evaluations given by lawyers working in the system. Having said that, I hope the court will send a very strong warning message, based on this case, to judges and lawyers to self-regulate or suffer the consequences. If reason is the distinctive characteristic and the ultimate salvation of a man, I hope the court will rule it unreasonable to discipline the lawyer (suspension) and ignore the Judge’s public remarks which have been characterized as “parting shots”. Were these remarks really necessary to make in front of the lawyer’s client?

    Furthermore, I believe both the lawyer and the judge should be required, by the court, to be re-tested on their knowledge of both the legal professional act and the Judge’s Act and obtain detailed instruction on the proper process and procedures for resolving disputes.

    I read once that a “purely conceptual freedom is like a purely conceptual meal: it fails to satisfy our hunger.” I do believe the real meal deal awaits the courts on the issue of lawyers and their rights to freedom of speech and expression about our justice system. Regrettably, I do not believe this is the case for such a important challenge.

  5.               Neil L. Cobb

     

    While I share the views espoused above and also look forward to how the Supreme Court, as presently constituted, will see fit to dispose of this appeal, I have little hope that the “larger” issue–the legitimate scope of public and Bar debate on judges’– will be exposed to the proper airing of which it is so deserving. The greater concern for me, personally, however, is that of the Judicial Council’s apparent inability (unwillingness?) to do anything meaningful whatsoever to stem the tide of such cases flowing from justice Boilard’s courtroom. How many lawyers has he so unjustly eviscerated in like manner during his long tenure on the Cour Superieure? I know that as a young law student working at a Montreal criminal law firm some three decades ago, I learned of several cases eerily similar to that of Mr. Dore and his client–they were a seemingly regular occurrence. The excellent piece by Patrick Gordon makes reference to Justice Boilard’s rebuke by the Council in this instance, but I seem to recall that this is hardly the first instance in which such a complaint against the judge was so handled. And if the record of such judicial complaints is as uneviable as I recall anecdotally, is it time perhaps to wonder if the continued waiting for the Judicial Council to act in more than “token” manner as against this particular judge has contributed to responses like that of the attacked barrister here? Is not the context of this Justice’s “record”, as well as his reasons for “publishing” the private letter something that should be considered in assessing the constitutionality of Mr. Dore’s highly insightful and commendably restrained comments?

  6.               m.diane kindree

     

    Hi Neil,

    I thoroughly enjoyed reading your comments and I would like to add my own experiences to the public record. For the past three years, I have been dealing with the problem of self-governing bodies who place their self-interests above the public interest. Whether these professions are the military, church, legal, civil service, medical professions, real estate and insurance or securities brokers and associated commissions, the same question can be asked: Who regulates the gatekeepers to ensure that the public interest and rights of individuals are adequately protected? The Canadian courts have concluded that the very rationale for creating self-regulating professions is for public accountability and protection of individual rights. The courts are well aware of the importance, in a democracy, of proper regulation of the “learned professions”. Why hasn’t the Judicial Council been able and/or willing? to examine, discipline and monitor one of their own to prevent these alleged repetitive displays of conduct not becoming a professional? The Judicial Council (JC)has a duty to ensure the proper operation of its statutes in the public interest, but it must also ensure that the public perceives this to be the case. In the event that it can be clearly demonstrated that the profession is unable to properly self-govern, its status can be removed for cause. In short, self-regulation is the granting of a legislated privilege which should not act contrary to the public interest. Isn’t it in the best interests of the JC and the Law Society to work together with the public to ensure the highest standards of competence and conduct which supports the integrity of our justice system? How does one provoke and stimulate meaningful thought and dialogue about the need for a collaborative approach (moving beyond territorial posturing and protectionism) to better serve the public interest and the administration of justice in Canada?
    I believe the establishment of an Justice System Oversight Board, under the independent authority of the Federal Ombudsman, would better serve and preserve self-governance while allowing for public scrutiny and a higher level of accountability by all the stakeholders. Irrespective of the outcome of this appeal, the cry for help has been issued by a member of the legal profession and this should not be ignored.

  7.               m.d. kindree

     

    What are the Problems of Standard of Review in determining a decision made by an administrative body with quasi-judicial powers (CJC) vs the Supreme Court (not a public body)? In the first instance, the problem is connected to the difficulties related to the statutory interpretations and the impact this has on the concept of reasonableness which is one of the fundamental components of the current system of judicial review.

    What significance does this have to the contextual background of this case?

    The most stringent standard of review is a judicial review and to this end, every person has a right of access, on request, to the documents held by a public body. (Note: These rights do not extend to personal notes written on a document, outlines, drafts, or other preliminary anecdotal documents.) The court may consider its purpose to include not only the rule of interpretation but also, contextual analysis as a pragmatic and functional requirement for meeting the standard of reasonableness in this case. IF, (that is a big if) the court identifies the substantive values which are affected by the conduct of the involved parties then, the scope of standard of review of public officers of the court, would support the primacy of the public interest (risk management of attitudinal and behavioural partiality and a potential for perceived demonstrations of bias affecting the client’s right to be fairly and justly heard).

    Canada Evidence Act, R.S.C. 1985, C-5 “Specified Public Interest 37 (6.1)
    “The court may receive into evidence anything that in the opinion of the court, is reliable and appropriate, even if it would not otherwise be admissable under Canadian Law, and may base its decision on that evidence.”

    Was the letter marked “private and confidential” (P & C)? If it was, the release of the letter without the authors written permission is in violation of the FIPPA. There is a online complaints process which investigates possible breach of Privacy. If the letter was not marked P & C, I am not sure the FIPPA would investigate an implied privacy especially, if the letter has been written by a lawyer.

  8.               m.diane kindree

     

    I have found no Canadian case to support my comments (?) and/or position on the above however, this morning, while sleuthing the internet with my mug of java, I did find a Supreme Court of The State of Utah “In re the Hon. S.P. McCully, Juvenile Court Judge No. 960308 Filed July 8, 1997.” I was rather surprised and delighted to find significant parallels to the above case and therefore, I hope you will find time to review the court’s decision.

  9.               Jean-Sébastien Girard

     

    FWIW, the case Diane Kindree is referring to is In re McCully, 942 P. 2d 327

  10.               m. diane kindree

     

    Just thought I’d review another archived case and I was pleasantly surprised to read the SCC 7-0 ruling in this case (March 2012). I did not think this case was strong enough (2 wrongs don’t make a right) to champion a lawyer’s right to speak out about judges/ judiary system but I am delighted the SCC did. Bravo. The judgment in this case is a breath of fresh air aimed at maintaining the integrity of the justice system, while allow all stakeholders to respectfully debating it, in the public interest.

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