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| Norman Douglas |
I think your heart is in the right place. I think maybe your head is not.
Who is giving you their advice on the judicial system? I’m guessing it doesn’t include any judges or justices of the peace.
What “you are hearing on the street” must be the voices of folks who read headlines and have never sat through one day in an Ontario courtroom.
I am not referring to the victims of crime — I tried my best to be their voice for 21 years as a Crown attorney — including when I was the acting director of criminal prosecutions at 720 Bay St., two floors down from the deputy attorney general. While I understood their and their family’s anguish, I still knew that our administration of justice could not be one of vengeance and that there were other voices that needed to be listened to as well.
The voices of those who, though charged, were innocent until proven guilty beyond a reasonable doubt. The voices of the guilty, who pleaded guilty to committing a crime but had a story of their own to tell. The mentally ill, the drug addicted, the bullied, the destitute and all those young people who deserved another chance because they simply did something dumb. What young person hasn’t? Or older person — you and I included, Mr. Premier.
When I received the honour, the privilege and the responsibility of a judicial appointment, I knew that there was a time to be “tough” (you would like that) and a time to be compassionate (you would also like that if a family member was charged with a crime). I knew that not everything was black and white, as the “voices on the street” have been telling you. I gave a conditional discharge to a man who sexually assaulted a female student at the University of Guelph. That created a howl, especially on the campus, where there was a “Fire Judge Douglas” rally. You can read about that case, and why I chose that sentence, in my book.
As I have written in earlier responses to some of the pronouncements you have made for tough judges, more jails and stricter bail laws (I doubt they ever were brought to your attention):
Every case needs to be judged on its own facts and circumstances. Every accused person has a right (not a privilege) to be heard.
I believe the key truth you are missing, Mr. Premier, is the cornerstone of our system — the presumption of innocence.
Think about that for a moment — not every country embraces it, but thankfully, Canada always has.
That means that all these people who appear in bail court are innocent.
They remain innocent whether held in jail or released.
They remain innocent throughout their trial.
They are innocent until the moment a judge or jury is satisfied that the state has proven their guilt.
Would you change that? Would you rather have a system based on the presumption of guilt? We might invest in some gulags.
Our courts follow the rules of evidence that have been tested and shaped over hundreds of years.
They are weighed in such a way as to hopefully prevent the unlawful conviction of an innocent person. We adhere to the principle:
Better 100 guilty people go free than one innocent person be convicted. Would you change that, Mr. Premier?
You seem attracted to the system of our neighbour to the south where most frontline criminal court judges are elected.
The allure, of course, is two-fold: You can vote for someone “like-minded,” and you can vote them out in four years if their decisions aren’t popular.
I once spoke to a judge who was in the middle of a campaign to get re-elected while I was vacationing in Arizona.
Her office was soliciting support from the lawyers in her jurisdiction. She was running on a “tough on crime” platform.
The job of a criminal court judge has its own pressures, without having to decide a case where one of the lawyers has contributed to your campaign and helped you get your job.
And popularity?
All the newly appointed judges that I mentored over my 27 years on the bench got this advice from me:
If you want to be liked by the lawyers, popular with the public and courted by the press, get another job. The very essence of being true to your oath means that much of what you are duty-bound to do will not be popular. Every day some people will not like you.
Now I have no issue with your call for statistics, Mr. Premier. So long as you realize that they are a lot like headlines — they never tell the full story.
Willie Mays had one hit in his first 27 at-bats. Terrible statistics — get rid of him.
Judge Douglas whacked a frail, 83-year-old first offender for a “harmless” property crime — gave him six months in jail. The Crown attorney did not even ask for jail!
He’s the same judge who let a woman off an impaired driving charge even though she pleaded guilty! Terrible statistics — get rid of him.
If you have read my book, you might have agreed with those decisions.
Your statistics will show that the judiciary in Ontario, who have been appointed on merit rather than political stripe, are folks of whom you should be proud.
And here’s the other key issue you seem to have missed:
Judges already are accountable. In two ways.
(1) Every decision they make is subject to appeal to a higher court.
If a Crown Attorney or defence counsel is not satisfied with the justice of the peace’s decision on a bail matter, they can appeal to a judge of the Superior Court.
And if either is not satisfied with a decision of a judge of the Ontario Court of Justice, they can appeal to the Superior Court or Ontario Court of Appeal.
(2) Everything judges say or do in the courtroom is recorded.
If a judge is out of line or does anything unbecoming of their office, they can be summoned to the Ontario Judicial Council.
That council has the power to discipline, including the ultimate punishment: dismissal from office.
So, Mr. Premier, if your statistics showed a judge dismissed 26 out of 27 cases, you could file a complaint with the judicial council that this judge was obviously too soft.
But be careful: That judge might turn out to be the heaviest hitter Ontario ever had. (Say, Hey?)
Norman Douglas is a retired criminal court judge with 27.5 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.
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