Follow the career of this gutsy judge who is using her office to do what judges are supposed to do!
VICTORIA - Children's watchdog Mary Ellen Turpel-Lafond says British Columbia's child welfare system failed an 11-year-old Prince George boy who was zapped by an RCMP Taser almost two years ago.
Turpel-Lafond says in a report released today that serious errors made by the Ministry for Children and Family Development left the boy open to abuse and neglect in his family home and in the homes he was placed in by the ministry.
Her report says the boy's case is one of the most difficult she's investigated, but it's not the only one where safe homes have not been available to children with complex needs.
The report says the April 2011 Taser incident and most of the 22 critical injuries reported about the child could have been prevented if the ministry had invested in proper residential care.
Turpel-Lafond's report says the boy has been placed in so-called safe rooms which isolated the child.
She calls on the ministry to immediately stop using isolation and restraint as a method to manage behaviour.
The Saskatchewan Court of Appeal is wading into the power struggle between provincial court judges and the Department of Social Services over how best to deal with offenders diagnosed with Fetal Alcohol Syndrome (FAS).
This year, the upper court has considered a series of disputed sentences where the offender suffers from FAS. The majority of the appeals involve rulings by Saskatoon provincial court Judge Mary Ellen Turpel-Lafond, but are not restricted exclusively to her decisions.
The contentious aspect of the rulings is Turpel-Lafond ordering Social Services to create special treatment programs for the offenders rather than sending them to jail.
The Court of Appeal heard such a case Sept. 20. The justices will deliver a written decision on the case with reasons -
the first time they've done so on this issue. Previously, they simply ruled whether the sentence stands.
The Court of Appeal decision is expected to have wide ranging implications on future sentencing.
"The whole question of FAS is a sleeping giant in the criminal justice system. As many as 40 per cent of all young offenders in custody are FAS kids," says a judge who asked not to be named.
"From a narrow point of view, it's not the jurisdiction of the court. But if the social policy of the government is to imprison people who are brain damaged rather than give them appropriate therapy, then it becomes a central issue."
FAS occurs when a woman consumes alcohol during her pregnancy. The damage to the child is wide-ranging and permanent.
Grand Chief Gary Merasty of the Prince Albert Grand Council has no problem with judicial activism on this issue.
"If Social Services is not responding then somebody needs to spark something," he said.
"We're all in favour of jumpstarting the Social Services system."
Justice Deputy Minister John Whyte says the dispute with the judges turns on jurisdiction.
"We don't believe that judges in sentencing should prescribe specific program responses when that requires the creation of a new program," he said.
"The social problems they want us to deal with are ones that undoubtedly need dealing with. But there comes a point when they give orders which require executive government to make expenditure decisions, design decisions, policy and regulatory decisions which we haven't yet made, and courts don't have that authority over government."
Both lawyers working with FAS clients and Department of Social Services officials agree that the present system doesn't do enough.
"We still have a ways to go in developing programs for people with FAS. We have to develop more prevention programs . . . and certainly, aside from prevention, we have to do more in the area of having programs to deal with kids that already have FAS," said social services spokesperson Doug Wakabayashi.
Legal Aid lawyer Kathy Grier in Saskatoon has seen the sentences for three of her clients appealed by the Crown this year.
"These were all kids who had a diagnosis of FAS or fetal alcohol effect (a variation), so the regular programs just don't meet their needs," she said.
In one instance, Turpel-Lafond ordered a youth worker be assigned to the case and that a comprehensive plan be prepared for the youth's release. She also ordered the youth sent to an in-patient treatment centre with an aboriginal focus, and special education supports.
"The Crown is saying they have no objection to these kids getting the treatment, but that she (Turpel-Lafond) has to do it an appropriate fashion. They don't agree it's an appropriate fashion," Grier said.
Whyte says the government sympathizes with the frustration of the judiciary - but it won't take orders from judges.
"Some of the judgments ask us to do things that we're not ready to do. Perhaps we should be ready to do (it but) it goes beyond what a judge, we think, should be ordering," he said.
This isn't good enough, said one judge.
"The bottom line is what are you doing about FAS? The fact of the matter is they've got zip going on FAS," the judge said.
"Jail is the only social preferred option for brain damaged people if the government is right."
A 12-year-old Saskatoon girl who broke into a house full of sleeping people and set a series of fires is now at the centre of a debate over how the courts deal with youth diagnosed with fetal alcohol syndrome (FAS).
On Thursday, provincial court Judge Mary Ellen Turpel-Lafond postponed sentencing of the youth until January because it's not clear what - if any - kind of treatment is available for young offenders with FAS in Saskatchewan.
In delaying sentencing, Turpel-Lafond questioned Crown and defence counsel about what type of FAS programming is available in custody "for a 12-year-old girl with her first set of offences.
"What is an appropriate strategy for this young person?"
Turpel-Lafond instructed the court to arrange for Social Services to supply an expert to speak to the availability of programming.
The girl was diagnosed with FAS when she was three years old. The condition is caused by exposure to alcohol during pregnancy and studies suggest that as many as half the youth in custody suffer from it. The effects range from profound mental impairment to deficits in judgment and reasoning.
The Crown is recommending the girl serve one year in closed custody, followed by six months in open custody and a year of probation. Crown prosecutor Val Adamko said public safety is a serious concern because of the girl's admitted role as instigator in a series of fires this past fall in the city.
Defence lawyer Grant Crookshanks said youth cannot get appropriate treatment for FAS in custody anywhere in the province. He said that constructing a network of supports in the community is the most effective way to change her behaviour.
The negative social influences she could encounter in jail "are not as concentrated" in the community, he added.
Adamko said the girl can get programming in closed custody. The issue is whether she can apply what she's learned to situations on the outside, "and that's where we differ."
The youth pleaded guilty to arson, along with another 12-year-old girl and a 16-year-old girl, in connection with a wave of garbage bin and house fires on the city's west side this fall. They faced a combined total of 51 charges.
The teenager has already been sentenced to one year in secure custody and six months open. The other 12-year-old has been sentenced to three months secure custody and six months open.
In the most serious incident, the three broke into a house full of sleeping people and set fires. They then called 911 and assisted firefighters in evacuating eight people from the multi-unit dwelling, including a man in a wheelchair.
As firefighters worked on the blaze, which caused more than $100,000 in damage, the three girls told emergency staff how they awakened and then helped evacuate residents from the suites.
Investigators became suspicious because their names were familiar from an ongoing arson investigation.
The girl will spend Christmas in remand at Kilburn Hall.
The judge who ordered the government to develop a community-based treatment program for a 12-year-old arsonist with fetal alcohol syndrome instead of jailing the girl deserves kudos for the decision.
In a province that locks up more of its young than any other jurisdiction in North America, Judge Mary Ellen Turpel-Lafond's ruling addresses a problem ignored for too long.
With research showing that nearly 50 per cent of young persons being ground through Saskatchewan's justice mill each year - a vast majority of them aboriginal youths - suffer from some form of FAS, it's to be hoped that Turpel-Lafond's decision finally will spur some action from government.
The predictable and tiresome accusation of "judicial activism" has again reared its ugly head in the wake of the ruling, with critics arguing that the girl should have been locked up for public safety, not let loose on the community.
Those who took the time to read the judgment or acquaint themselves with the effects of FAS, however, would agree that Turpel-Lafond's ruling was the better course of action in the long run and one that should serve as a model in other cases involving FAS-damaged youths.
"Community protection is not served by temporary warehousing of FAS children in secure custodial facilities because ... in all likelihood they will return to the community in worse condition," Turpel-Lafond said.
She worried that the youth, only identified as ML, would bond with anti-social peers and, "given her suggestibility, she will be ripe for participation in further criminal activity at the direction of a more sophisticated youth or group of youths she'll meet in secure custody."
As experts made it abundantly clear to the court, children such as ML who develop FAS as a result of their mothers consuming alcohol during pregnancy have no regard for the consequences of their actions.
Although they know right from wrong, they cannot relate cause to an effect. Therefore, the principles of deterrence and social denunciation that underpin incarceration don't apply to offenders with FAS. The goal of rehabilitation also doesn't apply, because FAS is a lifelong, physical neurological disability.
Turpel-Lafond found that ML, like so many others with FAS, needs education programming, pro-social activities, help to make positive contact with peers and family and a high level of supervision to help her rehearse and learn good behaviour in a social context.
Such mechanisms that help FAS kids to live with their disability effectively cannot be delivered in closed-custody, the court learned.
While FAS children learn to perform well in the structured custody setting, they have no ability to continue their behaviour once they regain their freedom. The case of Serena Nicotine, another FAS youth who performed well in lock-up but went on to kill the operator of the open custody home to which she was released, is a prime example.
Serena Nicotine in custody during 2013 incident of taking fellow prisoner hostage in Edmonton courthouse.
Turpel-Lafond made it plain that jailing disabled children who severely lack education, socialization and life skills, instead of providing the resources needed to help them cope, is neither reasonable nor just.
It's something that our politicians have known all along but have so far avoided addressing, perhaps because they think it will cost too much.
Now, facing a court order that requires it to come up with a program for one youth within 45 days and similar edicts from other judges soon bound to follow, the government will be pressed to do what it should have done long ago, not just in the interest of the youths involved but for public safety in the long run.
I was very pleased to read the coverage in the Star Phoenix of Judge Mary Ellen Turpel-Lafond's ruling in the recent case against the 12 year old FAS arsonist. I applaud her decision as I am sure many other parent's of FAS/E children are doing.
Our children are only 9 and 10 years old, and hopefully will never have to stand before a judge facing such charges. However, both of our children suffer from the effects of the alcohol, solvents and variety of narcotics that their birth mother abused during both pregnancies, and we are growing increasingly frustrated by the lack of services available to either our children or to us as parents of FAE kids.
Without the necessary treatment and programming our children could very well become two more statistics. This is totally unacceptable in my view. Appropriate educational and therapeutic services are not only my children's right it is the law! A country that boasts of an 8 billion dollar surplus, one of the highest standards of living in the world and claims to have an educational and health care system second to none should be more than capable of providing these services. The fact that we do not is a national disgrace.
As an adoptive parent I have made several attempts to access programming for our children because I am well aware of all of the risks that are associated with FAS/E. Unfortunately, those services just don't seem to be available to us. There are very few doctors or educators who have a good understanding of this condition and any programs we have found are not specific to FAS/E and are not government funded.
We have had our children assessed at a private learning institute and traveled 400 kms once a week to enable our children to have the benefit of educational therapy. Because of the distance, and expense we were unable to continue beyond a year, even though it was beneficial to our children. The cost was $36.00 an hour at 4 hours a week, for each child, and we could not even deduct it on our income tax, because Learning Disabilities, ADHD and FAS/E are not recognized as being disabilities by our government. I pay for private counseling at a cost of $50/hr for both myself and my children and one of our children requires three different kinds of medication in order to function in school, at home and in the community.
Due to the learning disabilities that both children have they would each benefit from the use of a computer for doing written work but they do not qualify for special funding so we will probably have to purchase laptops for school as well at some point, in addition to the special software that they require. They also do not qualify for teacher aides so I am presently making arrangements to hire someone to tutor them after school. In addition, we have spent thousands of dollars in repairing damages to our home as a result of the impulsive destructive behavior that results from fetal alcohol damage.
When I contacted Social Services I was told that they do not provide any assistance to adoptive families unless the special needs were identified prior to adoption. FAE is not evident at birth and the learning and behavioral problems usually don't become evident until the child is older. Social Services was well aware that the birth mother had a chronic substance abuse problem, but they did not make this information available to us, and apparently did not know that this would cause our children to have learning, behavioral and psychological difficulties.
Because I previously knew of her history I was aware that these problems may surface at some point, but most adoptive parents do not have the benefit of this information and they adopt what they believe to be healthy babies only to find out after years of heartbreak, that their children have brain damage due to fetal alcohol exposure. Of course, since this was not identified prior to adoption, they do not qualify for any assistance either, and none of us get the support that we all desperately need in order to understand and cope with the very difficult challenges of raising an alcohol effected child. As a result many adoptive or foster placements break down, parents suffer from anxiety and depression, marriages fall apart and the kids end up back in the system or on the streets.
The families who manage to stay together and cope the best they can, do so with great difficulty and at a huge cost emotionally and physically, to every member of that family. Nothing in the world can prepare you for the challenges of parenting an FAS or FAE child because until you actually live it the behaviors are inconceivable and pretty much indescribable.
The media has finally tuned in to this issue in relation to young offenders. However, before these kids become young offenders many of them are identified as having learning and behavioral problems. Because there are no adequate services for these kids they develop many of the secondary conditions that are associated with FAS. We know that FAS is the leading cause of mental retardation, learning disabilities, ADHD, and conduct disorder, and that kids who have FAS have a very high risk of abusing drugs and alcohol, developing antisocial behaviors, dropping out of school, teenage pregnancy, committing suicide and that they have a 90% risk of developing a psychological disorder or mental illness. I recently read that 80% of violent male offenders in Federal Penitentiaries have FAS/E and that at least 50% of youthful offenders have FAS/E.
Why is it that we are doing nothing as a society to address these problems? My children do not qualify for any special services within the school, I can not find a program that deals with all of the aspects of this condition and I am not prepared to wait until my children get into trouble with the law to get them the treatment that would quite likely prevent this from happening in the first place.
We spend millions of dollars a year warehousing FAS/E offenders in adult and youth correctional institutions even though we know it serves no purpose other than to ensure that they will undoubtedly, reoffend once they are released back into the community. Serena Nicotene was released from the Paul Dojack Center because the Social Workers that are employed there had very little knowledge in the area of FAS even though the majority of kids within those walls are alcohol effected. Why is that?
A judge, who sees FAS kids on a daily basis, obviously did not understand the implications of this disorder either. This lack of understanding among the very people we pay, and trust, to protect us, puts us all in danger every day, because they are making irresponsible decisions as a result of their ignorance regarding this condition. It is also a huge disservice to the youth who are being deprived of the help they need because of the lack of information and resources available to those who make decisions regarding their fate.
Judge Mary Ellen Turpel-Lafond's ruling is a step in the right direction because it forces the government to address the special needs of FAS kids who have already become involved in the young offender system. Unfortunately, it does nothing to prevent these kids from becoming involved in crime in the first place. FAS kids are born to parents who have substance abuse problems and who are very often FAS or FAE themselves.
As a result, many of these children come into contact with Social Services at some point and are subsequently placed in care. Those who are made permanent wards are placed in adoptive homes or in long term care. This provides a window of opportunity for identifying and treating these children because most foster and adoptive parents would gladly do whatever it takes to assist these children and provide for their special needs, if the resources were available and affordable to us. Providing community based programming to these children and their parents through the form of early intervention and ongoing treatment would greatly decrease the number of youth who come into conflict with the law later on.
The public is rapidly losing confidence in the Department of Social Services because the approach to protecting children continues to be reactive, rather than proactive and preventative. We are reminded daily of how the system doesn't work and every change in policy seems to be a step backwards. Intervention only takes place after a child has either been seriously harmed or has done serious harm to another. By this point so much damage has been done that it is often irreparable. Cost effectiveness takes precedence over the needs of children, and the rights of parents and preserving the sanctity of the family unit, are put before the safety of children but these approaches ironically result in much higher costs to us all, both socially and financially over the long term.
The majority of these kids are not being raised by their biological, substance abusing parents. Most of them are in and out of foster care, group homes and institutions and many other's are in permanent foster care or adoptive homes. They have parents who care and are committed to raising them.
If Social Services would provide the information we need to allow us to identify and deal with the special needs of our children and if our educational and health care professionals were given the resources that are required to put the appropriate programming in place we could keep these kids at home, in school and out of trouble.
There is no cure for what they have but the with the right combination of medical treatment, educational programming and a loving, secure and structured home environment many of these kids can succeed in life. It is ludicrous that they should have to burn down somebody's home or kill a few people before these resources become available to them. It's even more ludicrous to support the right of a pregnant woman to do irreparable damage to an unborn child through the use of alcohol. This is a phenomenon that exists soley because we, as a society condone the use of alcohol by pregnant women.
When I watch my children struggle, day after day, because of conditions that were 100% preventable it not only breaks my heart, it makes me very angry. How can we allow this to go on? Why should these innocent children have to pay such a huge cost because of the apathy of adults? There is no justification.
Her Honour's system Judge Mary Ellen Turpel-Lafond's CV speaks for itself.
Born: Feb. 15, 1963, St. David, Man., to a Cree father and a mother of Scottish/English ancestry
1985: bachelor of laws, Osgoode Hall Law School, Toronto 1988: master's degree in international law, University of Cambridge, England 1990: doctorate of law, Harvard Law School, U.S.
1990-92: lead counsel for the Assembly of First Nations during debate over Charlottetown accord
1994: first aboriginal person in Canada to become a tenured law professor (at Dalhousie Law School in Halifax); named one of Time magazine's new generation of world leaders
1998: first aboriginal woman appointed to the provincial bench in Saskatchewan; gains reputation as outspoken defender of native and constitutional rights; described by Chief Justice Brosi Nutting as "a bridge between the aboriginal community and the Court"
On what makes a just society "People must be treated fairly. Historically, aboriginal people have been left out of everything--the legal system, elections, the school system. Equality has to be applied across the board. That's worth getting up in the morning and working hard for."
On alternative sentencing "Why should society shoulder the financial burden of putting people in jail if it doesn't always work? Literacy, job placement, community service--these things work better. We know they do."
On her greatest success "My three-year-old daughter, Alphonsine. I keep a picture of her right here with me. I want to leave my daughter with a good community--I don't mean just Saskatchewan, but all of Canada."
On what really counts "Every morning I say a prayer to the Creator, asking that I can do at least one good thing today. Public service is the most rewarding thing you can do."
Saskatchewan chiefs are telling the provincial government that, when it comes to fetal alcohol syndrome and fetal alcohol effects, it's a question of pay a little now or pay a lot later.
Acting to support a controversial ruling by Native judge Mary-Ellen Turpel-Lafond, (who is married to Saskatoon Tribal Council chief Harry Lafond) the Federation of Saskatchewan Indian Nations passed a resolution calling for action that will stop children suffering from the affliction from falling through the cracks in the system.
First Nation leaders believe that fetal alcohol syndrome and fetal alcohol effects are a root cause of justice, education and health problems for Aboriginal youth.
"We don't have the numbers and a percentage as to how many are affected with FAS," said First Vice Chief Morley Watson of the Federation of Saskatchewan Indian Nations. "There is not a lot of programming provincially or federally out there. It is almost like starting from scratch."
On May 30, the chiefs of the FSIN passed a resolution to aggressively take action on the issue and are asking the Saskatchewan government to focus on the issue and provide programming. "The number one thing that we have to be most cognizant of is that it is very serious and the governments and public are uneducated about it," said Watson. "A lot of these young people don't realize the severity of their actions and find themselves on the wrong side of the law. In a lot of cases the education system doesn't realize they don't have the same learning capabilities and as a result they are looked at as being slow and they can't keep up. Then quitting is the easy way out for them. So in the areas of justice and education we want to bring some light to the situation."
Some tribal councils unofficially realized the severity of the situation and did some preparatory work. On June 1, the chiefs legislative assembly gave the official go ahead to address the issue. "Hopefully, we can pull in the feds with the province and set something in place to help these young people," said Watson.
The national average for children born with FAS is one to three per 3,000 children and between 160 to 600 births per 1000 for FAE.
A recent provincial court decision ruled that the issue be addressed properly in regards to youth possibly affected with the disease. The Crown appealed the decision by Judge Mary Ellen Turpel-Lafond saying that she was steering social policy.
"Judge Lafond said, because there was no programming and no help available to the young individuals, that she was not going to continue to incarcerate young people," said Watson. "What the province wants to do is to continue to put them in youth detention centres as opposed to sending them to get help for FAS and FAE where they can get treatment. So, with no programming in place, the province just continually wanted to have Judge Lafond incarecerate them and she didn't want to do that."
Although the First Nations have not heard anything more in regards to the appeal they plan to continue to pursue discussions with the government to take a closer look at the problem. "Like everything else government is always hesitant because it is going to cost money," said Watson. "I think when we talk of social programming this fits right in because the longer that they don't help then the longer they are still going to have high overhead costs for education, justice, and health. So the big thing that we want to do is convince them that it would be a better investment for us to work with these young people now.
Provincial court Judge Mary-Ellen Turpel-Lafond lambasted staff at Kilburn Hall for placing a 17-year-old boy in a concrete isolation cell in January with the lights off and subjecting him to classical music played at high volume to control his behavior.
When this did not work, five staff using a plastic shield rushed the youth in the cell and placed him in the "cradle" position. He was handcuffed with his hands behind his back, his legs shackled and a further apparatus used to connect the two at the knees so that he was immobilized face down on the cell floor.
An emotional Turpel-Lafond apologized to the boy for what happened in custody. In a strongly worded 42-page judgment, she said the Department of Social Services should immediately review its policies on isolation cells, restraint policies and sending youths to police cells.
"What happened to you at Kilburn Hall was wrong. You are not criminally responsible for it and have been put through the unfortunate ordeal of a trial and secure remand in an adult prison," she said in the judgment, delivered in court last Thursday.
Social Services spokesperson Bill Carney said Monday the department is giving the judgment "a very thorough review." He added that the department had already undertaken a review of the use of restraints and what type are used.
"The other thing we're reviewing is our confinement and segregation policy," he said.
"We're going to take the judge's ruling and give that full consideration as part of the review."
In her judgment, Turpel-Lafond acquitted the boy on charges of assault and uttering threats related to the incident at Kilburn Hall where he was subdued.
For outstanding charges of car theft and trafficking marijuana, she ordered his time served on remand quadrupled - so three months would equal one year in jail - to allow his immediate release. She also ordered that the director of the Saskatoon Correctional Centre deliver the boy's belongings to his mother.
At one point leaving the bench to compose herself, Turpel-Lafond said that she "was shocked to hear that in the isolation unit, young people can be placed in cells without a mattress or sheet as these are treated as privileges.
"It was evidence that a mattress and sheet are used as part of a bargaining process to get young people to behave. This is a breach of the Department of Social Services policies which were filed with the court."
The youth had spent two nights in city police cells and three days in isolation cells.
"It is arguable, contrary to the Young Offenders Act, not to mention the Charter and the Geneva Convention on the Rights of the Child, to send a young person to the police cells," she said.
The boy was on remand at Kilburn Hall Jan. 13 awaiting trial dates on the car theft charge and the trafficking charge, when the incident occurred. It started with his refusal to run five laps in gym - he ran only three - and escalated to his confinement in his room. When he kicked the door, he was placed in isolation.
The assault charge Turpel-Lafond dealt with resulted when it was alleged the boy grabbed a worker by the testicles while being placed in the cradle position. "In acquitting him of the assault charge, I would suggest that an assault may have been committed in this matter, but not by the youth. I have heard evidence that one of the youth facility workers struck the youth in the head several times," Turpel-Lafond said.
The related charge of uttering threats followed from a conversation overheard by a staff member at Kilburn Hall.
At the request of Kilburn Hall, and with his eventual agreement, the youth was remanded to the Saskatoon Correctional Centre where he was placed on secure remand because of reports the correctional centre had received from Kilburn Hall. He spent three months there until his case was dealt with last Thursday. Related story: Federation wants inquiry into how boy was treated at young offenders facility
Some judges won't accept a 50-cent pastry as a gift. Others make headlines with speeches, such as the recent example of provincial court Judge Mary-Ellen Turpel-Lafond.
A vast grey area stretches among judges over the level of public participation they find acceptable to maintain their independence.
The senior judge who recently refused an apple fritter from a visitor to the Court of Queen's Bench may have simply been watching his waistline, but the tone of his voice implied he didn't want to be seen accepting a gift.
The incident illustrates how judges - especially older ones - will go to great lengths to protect their independence. Part of this philosophy means public statements by most senior judges are guarded and opinions straying into the political realm are avoided. But among other judges - particularly younger ones - the lines are shifting.
"A younger judge might have taken that doughnut. If that happens, is that a problem?" asked Daryl Labach, president of the Saskatoon Criminal Defence Lawyer's Association.
Labach and several other city lawyers on Tuesday came to the defence of Turpel-Lafond, whose comments on a variety of issues have come under criticism. Turpel-Lafond has been in more headlines for her opinions in 1999 than most judges collect in their careers.
The judge, a legal scholar with an impressive resume, has been on the bench for 13 months.
In recent weeks she has condemned the treatment of a teenager in detention, spoken out on accountability in Native government and commented for lawyers on a recent Supreme Court decision calling for more alternative sentences for aboriginal people.
Corrections workers were insulted by the judge's characterization of the boy's time in jail. Native people calling for more accountability in aboriginal government felt she downplayed their concerns over corruption. Crown prosecutors grumbled because her commentary on the Supreme Court decision first went into the hands of Legal Aid lawyers.
Some lawyers said the concerns and criticisms have been misguided.
Defence lawyer Mark Brayford pointed out that judges make comments and write opinions on other court decisions all the time. Every summer at a conference, dozens of judges prepare commentary on the previous year's decisions. Last year, 32 opinions were penned by judges.
"To put it mildly, it's very common for judges to write about the legal issues that are contained in case law," he said. "Judges interpret legal decisions outside of court all the time."
"It's a part of legal education," added Labach, who said Turpel-Lafond recently spoke on the subject to his association.
Usually, the interpretations are provided to other lawyers and law students, or published in legal tomes, out of the general public's eye.
"Judges give speeches. During the school year, a month doesn't go by that a judge isn't speaking at the college of law," Labach said.
Brayford also said judges should be allowed to make any comments they like on social issues, including Native government accountability or the incarceration of youths.
"Judges must take care in public statements not to affect cases that they are sitting on as judges. Clearly, judges are not politicians, but clearly there are social issues of the day that might be of interest to that judge as a citizen," Brayford said.
Labach and Morris Bodnar, a defence lawyer and a former MP, said they weren't as sure Turpel-Lafond should have spoken out on Native governance and accountability.
"Most often we require the judiciary not to be political. The question here really has to be whether or not they were political comments. If they were not, then it is fine for judges to make their views known because this is important to rectify problems," Bodnar said.
Last week, the Saskatchewan Party asked the provincial government to impose conduct guidelines on judges because of Turpel-Lafond's speech.
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