ST. JOHN'S - A St. John's lawyer may be penalized for critical comments he made about the skills of judges.
Jerome Kennedy - one of the province's highest-profile defence lawyers - told a conference in July 2003 he was disappointed the Lamer Inquiry into the justice system would not be examining the role of judges.
From July 28, 2003: Inquiry should hear from judges, jury: lawyer
"It's the trial judges, some of whom don't know what they are doing," Kennedy said at the time.
"Part of it is as a result of political appointments. Part of this is as a result of intentional or unintentional biases."
He asked the inquiry to examine the role of judges and juries, but he was denied.
Kennedy's remarks drew a complaint from Derek Green, the chief justice of the Newfoundland Supreme Court.
Green wrote to the Law Society of Newfoundland, complaining that Kennedy's comments were a general condemnation of the judges of the Supreme Court, and that they suggested systemic bias and deliberate close-mindedness.
The Law Society of Newfoundland is scheduled to hold a disciplinary hearing Wednesday.
While Kennedy is not speaking publicly about the matter, his law practice partner, Bob Simmonds, says lawyers should not be disciplined for criticizing judges.
"It's not the penalty that we are concerned about here," Simmonds says.
"It's the fact that they' re going to tell us - they're going to say to us, 'No, no, no, you can't comment.' You can't do that. I'm sorry, I'm not willing to swallow that not without a fight, anyhow."
If the Law Society hearing finds that Kennedy did commit a misconduct, he could face a reprimand, or even be disbarred.
Each man was convicted of murder. Druken was released from prison while his case was being appealed, and the Crown later stayed charges.
Parsons was exonerated for the murder of his mother, while Dalton was found not guilty of his wife's murder during a second trial.
It is time that the judiciary was dragged kicking and screaming into the 21st century of free speech. It is time that the bench stopped thinking of itself as a fragile flower and accepted that lawyers will from time to time make harsh and intemperate criticisms. A case in Newfoundland and Labrador offers the perfect opportunity for the judiciary to accept that free speech means that sometimes the gloves come off.
Chief Justice Derek Green of the province's trial division complained to the Law Society of Newfoundland about the harsh public comments of lawyer Jerome Kennedy, an advocate for the wrongly convicted. Mr. Kennedy faces a professional misconduct hearing this week.
Mr. Kennedy was upset in 2003 that a public inquiry into three wrongful murder convictions (all three of which he helped reveal as wrong) would not look at the role that trial judges and jurors may have played. He said in a speech that "trial judges who don't know what they are doing" are one cause of wrongful convictions. He said part of the problem is appointments made for political reasons, rather than merit, and added that some judges have "intentional or unintentional biases - in other words, the forming of a belief in guilt before all the evidence is in."
This is rough stuff by the standards of the legal profession. At one time it might have been cause for contempt-of-court hearing, under a common-law rule against "scandalizing the court" designed to maintain the public's faith in the administration of justice. But since the Ontario Court of Appeal ruled in 1987 that this common-law rule was overly restrictive of free speech under the 1982 Charter of Rights and Freedoms, the rule has become nearly obsolete in Canada.
The Ontario ruling came after a maverick lawyer, Harry Kopyto, told a Globe and Mail reporter that the courts are "warped in favour of protecting the police. The courts and the RCMP are sticking so close together you'd think they were put together with Krazy Glue." One of the appeal court judges, Peter Cory (later a member of the Supreme Court of Canada), wrote that "the courts are not fragile flowers that will wither in the hot heat of controversy." He also said it cannot be expected that "criticism will always be muted by restraint," and added that "hyperbole and colourful, perhaps even disrespectful language may be the necessary touchstone to fire the interest and imagination of the public"
Judge Cory's defence of free speech is worth remembering in Mr. Kennedy's disciplinary hearing. The Newfoundland law society's code of professional conduct says "the lawyer should encourage public respect for and try to improve the administration of justice." A tension exists in that sentence: To offer a sincere criticism is to try to improve the justice system, but criticism may undermine public respect. Of course, a system that does not permit public criticism and does not work on its flaws will lose more respect in the long run.
Mr. Kennedy made an extremely serious criticism in saying that some judges lack open-mindedness. Did he believe his criticisms were true, and did he hope to improve the justice system by making them? Or was he simply trying to wound or spite the bench for personal reasons? From what has been made public thus far, there seems no reason to doubt Mr. Kennedy's sincerity. The law society should send a message that the justice system won't wilt if lawyers criticize the conduct of judges.
A prominent Newfoundland defence lawyer, Jerome Kennedy, faces professional discipline for allegedly slurring the entire judiciary.
A disciplinary hearing before the Law Society of Newfoundland set for next week has been kept under tight wraps since it was spawned by a 2003 complaint from Chief Justice Derek Green of the trial division of the Newfoundland Supreme Court.
The unusual proceeding highlights a potential clash between judicial impartiality and a lawyer's right to speak freely on issues of public importance.
In 2003, Mr. Kennedy, who has helped bring to light several high-profile wrongful murder convictions in the province, said trial judges "who don't know what they are doing" rank as one of many reasons for wrongful convictions.
"Part of this is as a result of political appointments," Mr. Kennedy said in a speech that was carried in media reports.
"Part of it is as a result of intentional or unintentional biases -- in other words, the forming of a belief in guilt before all the evidence is in."
He made his comments on the eve of an inquiry into three notorious Newfoundland wrongful convictions, involving Greg Parsons, Randy Druken and Ronald Dalton, all cases that Mr. Kennedy worked on.
Mr. Kennedy took umbrage at the inquiry's refusal to examine the role that trial judges and jurors may have had in the cases.
In a letter of complaint to the Law Society of Newfoundland, Chief Justice Green said that the comments could destroy public faith in the impartiality of judges.
"These imputations strike directly at the heart of the judicial oath," he said. "If true, they would be grounds for removal from office of every judge affected by the allegations.
"My concern with Mr. Kennedy's comments is that they appear to be a generalized condemnation of the judges of the Supreme Court, reflecting on their general competence as well as suggesting not only inherent and systemic bias, but also deliberate -- i.e. intentional -- partiality and close-mindedness."
After Chief Justice Green's complaint, Mr. Kennedy wrote to the law society to say that he never intended to disparage the judiciary as a whole, and had simply been pointing out that their role deserves scrutiny.
Bob Simmonds, Mr. Kennedy's law partner, defended his colleague's right to speak out.
"He said that some appointments are political," Mr. Simmonds said in a telephone interview. "No lawyer in Canada would deny that is a fact."
Experience also shows that some judges indeed fail to grasp the law or prejudge cases, Mr. Simmonds added.
He said the disciplinary hearing is "an absolute farce" that could chill other lawyers into silence.
"It is unbelievable that the law society would proceed with this complaint," Mr. Simmonds said. "Critical comments are made about lawyers all the time. Does it mean that, as counsel, we have to keep our mouths shut?
"Because if it does, I'm in the wrong profession.
"On the one hand, Jerome is sometimes very forthright and blunt," Mr. Simmonds added. "On the other hand, he is dead right about this. Somebody had to say it."
Mr. Simmonds said there is rising public concern in Newfoundland about the province's record of judicial miscarriages, and that any attempt to suppress a champion of the wrongly convicted will be deeply unpopular.
"How can such an integral part of the trial process not be examined, when we've got more wrongful convictions across Canada than I have fingers and toes?" Mr. Simmonds said.
The ultimate punishment for misconduct is disbarment.
However, if a disciplinary panel rules against him, Mr. Kennedy is more likely to face a reprimand or suspension, and perhaps an award of legal costs against him.
Even in Canada's alleged democracy, freedom of speech is still a right right? Well, sort of, I guess, unless you are in the legal system and dare to raise questions about the calibre and competency of those running the show in the closed-shop system.
It is not just journalists or victims wronged by our courts who criticize the judiciary in Canada - some lawyers actually dare to speak the truth, too, with much more serious consequences for them than the predictable letters of outrage and 'circle the wagons' responses that usually follow any attack on our (in)justice system from lesser mortals.
The roles that judges play, and the political reasons of why some are appointed to levels far beyond their incompetence, are legitimate targets that should be open to public examination and discussion by anyone, right? Well, sort of, I guess. Any rant from this corner or from those such as former police officer Leo Knight and his
www.primetimecrime.com website about the mollycoddling of the judiciary has little impact on the honourable men and women who wear the robes. Yet when "one of their own" attempts to shed more light into the murky depths, all hell breaks loose.
Case in point is that of Newfoundland lawyer Jerome Kennedy who now faces disbarment for comments made about the sacrosanct judiciary back in 2003. Mr. Kennedy, representing several wrongfully-convicted men, was upset that an inquiry into the cases would not look into the role that trial judges played in those convictions. He even went so far as to maintain that some judges might be biased, and (gasp!) "don't know what they are doing"; and he questioned the politics that had helped to land them on the bench in the first place.
Well, that was something up with which Newfoundland's Chief Justice would not put. His Wonderfulness Derek Green complained to the law society (also known as the cadré of lickspittle toadies), ands now Mr. Kennedy faces charges of professional misconduct. That was his reward for charging that some judges are guilty of you guessed it professional misconduct!
Vancouver Sun columnist Peter McKnight (not related to Leo, to my knowledge), wrote last month about the plight of Mr. Kennedy, and compared the treatment of this one minor Canadian dung-disturber to that of reformist lawmakers in Iran who are jailed for the "offence" of criticizing the judiciary.
Omigod! Canada is like Iran - that bastion of non-democracy surely you jest? Nope, surely it is an accurate comparison when it comes to this issue. Mr. McKnight cited other instances of maltreatment of lawyers who dared to raise any questions about their "learned friends" on the bench.
He acknowledged that any comments or opinions expressed by lawyers about the administration of justice must be carefully and legitimately of substance, and there is no argument here about that. But for the system and the judges to bully and threaten any LLB who dares to question their actions is not the kind of democracy that most of us believe we have a right to expect in Canada.
Back off, your Honours, back off.