The lonely, troubled men On the bench
DO OUR COURTS DISPENSE TRUE JUSTICE? Concluding a national report by SIDNEY KATZ
Beset by doubts, fears, inevitable prejudices — and criticism from a public that seldom understands their problems — our magistrates and judges struggle with one of the most exacting and thankless jobs in public life
Many Canadians are beginning to wonder whether that hallowed institution, the British system of justice, is still working efficiently in this country or whether our judicial machinery, stiffened by tradition, is cracking under new pressures.
Can the average person, appearing in court with his life, liberty or home at stake, expect to be treated with complete fairness? Will the evidence for and against him be presented fully and weighed carefully and within a reasonable time? This is being asked with increasing urgency by the public, the legal profession and members of parliament.
It is also being asked by an austere, lonely figure who bears the ultimate responsibility for seeing that justice is done. He is the man on the bench, called a judge or a magistrate. While every trial creates problems for all the participants — plaintiffs, defendants, witnesses, lawyers, jurymen — nobody's problems are so numerous or complex as his.
It is the judge's grave duty to provide an atmosphere in his courtroom which is calm, dignified and impartial. Persons accused of criminal acts must be presumed innocent until proven guilty beyond reasonable doubt. The judge must help to bring to light, in both criminal and civil matters, all the relevant facts oí a case, distinguish between truth and falsehood and, finally, render a wdse and fair judgment by applying the proper lawo.
Although clothed in impressive robes and addressed as “My Lord,” the judge is still a human being with a particular set of worries, doubts and fears. This facet of the judge is seldom considered by the public because, in their determination to be truly impartial, most judges tend to stay aloof from their fellows. Because of the crucial position the judge occupies it is pertinent to ask a number of questions about him and his job: Is he happy at his work? Is he being paid enough to be free from financial w'orries? Does he worry about his isolation from the community? Is he overworked? What kind of things worry him the most?
The qualities of a perfect judge defy easy description. “There's no magic blueprint.” says a veteran of the Saskatchewan bar. Highly successful and even brilliant lawyers have proven failures on the bench; on the other hand, lawyers with no particular standing in the profession have been acclaimed for their judicial excellence. Joseph Cohen. QC. an outstanding criminal lawyer who lectures at McGill University law school, likes to quote an old facetious remark about the qualifications of judges, attributed to one of England’s lord chancellors: “Give me first and foremost a gentleman—if he knows a little law it will do no harm.” “Of course.” Cohen adds, “many more qualities are required—and should be sought when appointments are being made." According to Horace Read, dean of Dalhousie University law faculty,
the first-rate judge possesses “a judicial temperament compounded of equal parts of patience, objectivity, the power to absorb and analyze facts, and, finally, the ability to make decisions.” Arthur Kelly. QC. of Toronto, a former president of the Canadian Bar Association, emphasizes “readiness to work, combined with extensive legal knowledge.” H. L. Cartwright, an experienced Kingston advocate, feels that every great judge possesses "intelligence, humility and mental toughness.” Conversations 1 had with scores of judges and magistrates across Canada reflected an earnest attempt, on their part, to achieve these ideal standards. An eastern judge told me. “Being appointed to the bench is like being sanctified—like belonging to the priesthood.” A colleague in Ontario observed. "I love the law; it's my entire life. I can arrive at a just decision without pressure from anyone. No one pushes me around. I prize my independence.”
The judge, however, pays a price to maintain his position of independence and impartiality. He is forbidden to engage in business. His federal and provincial vote are taken away from him. He must be careful about making public utterances outside of his courtroom. One Quebec judge belongs to a local ratepayers' association and is sharply critical of the manner in which the council is conducting itself. “I find it hard to keep quiet, so I don’t even go to meetings,” he says. He
continued on page 49
Like all judges, Ontario Supreme Court Justice D. C. Wells spends long and lonely hours in his chambers, reading old decisions. But the books don't contain all the answers.
The lonely, troubled men on the bench
continued from page 19
A judge soon finds himself shunned by old friends: “Your office begins to feel like a cell’
doesn't want to go on record with an opinion because some day his municipality might be involved in litigation in his court.
After the excitement of being elevated to the bench has subsided, the judge notices that subtle changes take place in his relationship with his erstwhile legal colleagues, the community and his friends. "It’s as though a laying on of the hands has occurred.” a Nova Scotia judge told me. “An invisible barrier is erected between you and the outside world.” The barrier is an amalgam of the judge’s determination to safeguard his position of impartiality both in and outside the courtroom, and the lawyers' and the laymen’s extreme respect for his position. Alone in his chambers, the judge becomes acutely aware that the phone seldom rings and that old friends don t casually drop in to see him. ”Your office begins to feel like a cell." one judge told me. Lawyers who have cases pending before him will drop out of his life for four or five months until the matter is disposed of, even though they are life-long friends. On circuit, in smaller communities, the judge may go a week without speaking to anybody except court officials and hotel employees because the only acquaintances he has in town are lawyers, and chances are they're pleading before him.
What judge drives a Cadillac?
"We abide by the old maxim that the umpire doesn't hang out with the ball players,” one judge explains. At lawyers' meetings the judge feels vaguely uneasy to find that even old friends greet him very formally as "Your Lordship.” Even at lunch hour the barrier usually remains erect, in Vancouver the judges eat together at a hotel across from the courthouse at what has become known as “the judges’ table.”
Judges and magistrates tend to become circumspect in their community and social life. A Saskatchewan judge withdrew from a fraternal club, explaining, “I don’t want members who might appear before me to expect special treatment."
A Montreal judge arrived at a restaurant for dinner with a large group of people with whom he had just attended a cocktail party. Among the group he suddenly noticed a lawyer who was pleading a case currently before him. He left the restaurant immediately. "I couldn’t afford to be seen dining in public with this man." said the judge. "We must not only render justice in the courts; outside the courts, we must give the appearance that justice is being done.”
A judge is often required to make economic sacrifices as well, since their incomes have not gone up as fast as most people's. Twenty years ago county judges earned five times as much as persons engaged in the manufacturing industry; today, they receive less than three times as much. High prices and income taxes have scaled down their standard of living.
“1 sometimes feel resentful and frustrated,” a supreme-court judge sitting in a large centre told me. “In the court parking lot I see young lawyers who used to carry my brief case when I was in practice fifteen years ago drive away in new Cadillacs. 1 drive a battered fouryear-old car.” His children will soon be
ready for university. “I'm worried about how to finance their education. A friend of mine who's a judge in another province now has three children attending college. He told me he hasn't been able to afford a decent vacation in five years.”
Judges have other economic grievances. They're not allowed to claim income-tax deductions for the purchase of legal books and periodicals, and they say they’re often out of pocket when traveling on circuit because of the niggardly
daily allowance provided for them. "Even an underwear salesman would insist on a more generous expense account,” says Arthur Cowan. QC. By statute, a judge is allowed a daily maximum of eight dollars in a small town, twelve dollars in a
larger centre and fifteen dollars when he visits big cities like Toronto and Montreal. In one circuit town, the official court reporter was seen eating turkey for dinner while the judge had fish and chips. It figured: being a provincial civil servant, the reporter could submit an expense account for what he actually spent; the judge couldn’t.
Judges seek an adequate income so that they won’t be distracted by financial worries while sitting on the bench. To the casual visitor to the courtroom, the judge’s role appears to be a relaxed and leisurely one: he sits, he listens, he makes a few notes and, occasionally, interjects comments or questions. In reality, the judge’s job demands constant mental alertness, infinite patience and a rich knowledge of the law. At the end of the trial he must demonstrate the greatest skill of all: render a just decision. This is a two-stage process. First, he makes “findings of fact,” i.e. decides what parts of the voluminous evidence laid before him is relevant and true; then he applies the appropriate law.
All this is harder than it sounds. In civil matters, in every province except Quebec, legal decisions are based on English common law. These are not laws plainly written out in the statutes but hundreds of rules and principles distilled from previous cases, some of them centuries old. The judge has to find the precedents which are most identical in principle to the case he is hearing and then make the necessary adjustments and refinements. “There’s much more involved than putting a penny in the slot and coming up with the right answer,” says Horace Read, Dean of Dalhousie law faculty. The complexity of applying the common law was pointed up by a writer in the Canadian Bar Review. “The assumption that a law exists for every case if the court can only find it is fiction,” he says. "On many subjects we are farther from certainty than we were a hundred years ago. Think of the forty-one decisions reported within the last twenty years on the meaning of the term “charity.”
Another complexity facing the judge is that he can’t depart too far from precedents. In the words of one judge, “We are bound by precedents somewhat in the
same way a Roman Catholic priest is bound by the Pope's injunctions.” The most binding precedents are those emanating from the Supreme Court of Canada on appeals from the particular province and the decisions of the court of appeal of the same province. These are followed by those of the Supreme Court of Canada on appeals from other provinces, other provincial appeal courts and the Privy Council of England. Decisions of American courts may be “persuasive” in winning a case but are not binding.
Because society is changing so rapidly, it is not always possible for a judge today to decide a case on the basis of similar cases in the past. The Nova Scotia appeal court for example was asked to decide a vexatious dispute between TCA and a mink farmer. The farmer claimed ten thousand dollars damages because a plane flying over his property caused the adult minks to panic and destroy their young. The court held TCA blameless. A judge who had helped write the decision explained to me, “The airline was operating on a prescribed route and they were operating before the mink farm was established. It is not an airline’s duty to find out if there are mink farms on their routes and then fly so high that they won’t disturb the animals.” Since this decision was first published, it has had application on other cases.
Another task of the judge is to make certain that trials are conducted according to established rules of procedure— all designed to protect the rights of the accused. The observation of these rules becomes particularly important in criminal trials where a jury is in attendance. Only real—as opposed to hearsay—evidence can be presented. Witnesses must be protected from leading questions and from abuse. The judge must decide whether a statement or “confession” was purely voluntary and can therefore be admitted to court. In summing up the case for the jury, he must be scrupulously fair, omitting nothing of importance. He can state his own opinions but they must be clearly labeled as such. If the higher courts feel that a judge has not been truly impartial, they order a new trial.
On February 27, 1958, for example, Gino Casagrande was charged with the
stabbing and killing of Jean Wardrop, a Vancouver prostitute. He was found guilty and sentenced to hang. Later, the B. C. Court of Appeal directed that Casagrande be tried again because he had not been given a fair hearing. It was not enough, said the appeal court, that the presiding judge had made it clear to the jury that they could disregard his opinions and make up their own minds. But the judge had dealt with the facts in such a manner “as to belittle their significance for the defense and leave them heavily in favor of the crown ... It was not without significance that the judge’s charge to the jury took five and three quarter hours.” In the second trial, Casagrande was found guilty of the lesser charge of manslaughter and was sentenced to twenty years. The appeal court of another province once granted a convicted man a new' trial not because of anything improper the judge said but the sarcastic manner in which he referred to the accused's evidence.
With experience, most judges learn how to adhere to the rules of procedure most of the time. A much more Herculean task is to decide which one of tw'o witnesses is telling the truth and which one is lying. None of the judges I spoke to had developed an infallible technique for detecting the liar. All of them could recall honest witnesses who had a shifty gaze, squirmed uneasily in the witness box and spoke with hesitancy. On the other hand, they could remember liars w'ho spoke fluently and confidently. One judge feels that he learns a great deal “from watching the prisoner's eyes.” Another keeps a sharp lookout for “the liar's yawn,” since “many liars yawn frequently in an attempt to appear nonchalant.”
How many witnesses He?
But lying is not as common in court as most laymen suppose. People are not liars as often as they are simply fallible and inept, particularly when they are eyewitnesses to an event. Jerome Frank, the prominent American jurist, used to use the expression, “He lies like an eyewitness,” and a former chief justice in England once observed, “I have spent most of my life adjudicating disputes between two motorists, both absolutely certain that they were on the right side of the road and that they were stationary at the time of the accident.”
Witnesses tend to see what they want to see. They discuss their experiences with their friends, thus reinforcing their beliefs. Time often distorts a witness' memory of an incident, since a civil trial is often postponed until two years or so after the event occurred. And once a witness says something under oath he usually won't correct himself, for fear of appearing foolish or dishonest or both.
The fallibility of witnesses can be documented by every man who has served on the bench. In one trial involving a nighttime hit-and-run accident, one man assured the court that the car was grey; a woman was equally certain it w'as beige. Actually it w'as neither. Both witnesses w'ere misled by the tricky shadow's and lights of the night. A few winters ago, a passenger car carrying ten hockey players collided with a taxi. One of the most vocal witnesses described the mishap in vivid detail. It was later established that his view had been completely obstructed.
In listening to evidence, every judge is aware that the unreliability of witnesses
How can a judge tell if a witness is lying? What can he learn from shifty eyes or a “liar’s y^wn”?
has been repeatedly demonstrated by scientific tests. Dr. Francis Camps, of London Hospital Medical College, describes how' a brown-haired janitor with an artificial right arm was instructed to burst into a room where a lecture on evidence w'as being given to a group of one hundred and thirty doctors, lawyers and policemen. Later the lecturer questioned his audience. Only nineteen in
the group had noticed the artificial arm, and thirty-two were sure the janitor had grey hair.
In evaluating the multitude of arguments, claims and counter-claims made by two litigants every conscientious judge is aware that his own prejudices can divert the true course of justice. “No miracle happens when a man is appointed to the bench.” says Dr. Frank Scott,
of McGill University law school. “Judges are only human. Some have prejudices which persist; others control them.”
A judge of British Columbia’s highest court observes, “Every judge has to fight at least one prejudice of which he is conscious. He may even lean backwards as a result.” An Ontario county-court judge told me that for a long time he harbored resentment against one - man
streetcars. *T was surprised to find how predisposed I was to find against a company who was operating them."
An experienced lawyer in the field of personal liability has learned that some judges, in a general way, favor motorists; others, pedestrians. Teetotaling judges are apt to be stern with drinking drivers. One judge who suffered severe pain from a slipped disc is most sympathetic to plaintiffs with hack injuries. The lawyer observed, "If fifty judges heard the same case they'd bring in fifty different findings. each finding reflecting the judge's personality in some way.”
In the opinion of a successful Montreal corporation lawyer, the judge’s professional background also colors his outlook. "If he is a small-town lawyer or had a modest general practice he tends to favor the ordinary man seeking damages against a large company,” he says. "He also tends to award smaller sums of money since even five thousand dollars appears to he a fortune to him." The former corporation lawyer, on the other hand, often has the opposite leanings.
The fear has often been expressed that a judge’s religious persuasion is likely to affect his judgments. In at least one case this concern appears to be justified. A high-court judge in one of our larger provinces who was a devoted church worker stated on a private occasion, within earshot of a prominent lawyer, "I’d never award custody of a child to a parent who didn't take the youngster to church every Sunday.”
Since his faith strongly opposes divorce. I asked a Roman Catholic judge, sitting on the bench of a provincial supreme court, how he maintained an impartial position in hearing divorce actions. He explained: "I personally don't approve of divorce, but as a judge I have no feelings about it. If I did, I would be incompetent. I deal with divorce as a private contract. The only question to be answered by the court is Did this man commit adultery with this woman?’ "
A prominent lawyer who has handled scores of divorce cases feels that some Roman Catholic judges tend to be more thorough in their demands for proof of adultery. In one of his divorce actions, a landlady testified that a husband had lived in one of her rooms with another woman for six months under the name of “Mr. and Mrs. Smith."
“Did you ever actually see them in bed together?" asked the judge, who then demanded that further evidence be presented. The lawyer presented another witness who lived in a room adjoining the couple for two months after they had moved to a new rooming house. In spite of this evidence, the judge withheld his decision for four months.
Sometimes the judge's professional background will also influence his behavior during a trial. Some judges, after spending twenty years as courtroom lawyers, find it difficult to cease being advocates. A lawyer for the defense described the behavior of one such judge during a recent trial. "He interjected too frequently and he questioned witnesses at great length. Every time the defense scored a point, the judge took over the questioning and attempted to destroy it. This was unfair to my client in many ways. It s only human nature to believe that the evidence you bring out is better than anyone else’s."
Under such circumstances, it is the lawyer’s duty to protect his client by politely chiding the judge, "My Lord, you are usurping the function of counsel . . .” Many lawyers fail to do this because of inexperience. "But others keep
quiet simply because they're cowards or because they're attempting to butter up the bench," a veteran Ontario courtroom lawyer told me. Some judges have to exert a great amount of self-discipline not to become over-involved in the proceedings. A western judge who had earned wide recognition as an aggressive lawyer for the defense used to glance frequently at a small cardboard sign perched on his bench. It said, in large black letters, KEEP YOUR DAMN MOUTH SHUT!
In their own defense, several judges told me that it is not by choice that they often intervene in trials, but because they are anxious to see justice done. As an officer of the court counsel has a duty
to bring in all relevant evidence, analyze the facts and point out the appropriate law to the judge. One of Quebec's most learned judges told me, "Half the time the lawyer has not prepared his case well." When this happens, the judge faces a dilemma: he can keep quiet, in which case the lawyer’s client will suffer; or he can attempt to bring out further evidence and, as a result, be condemned for meddling. A British Columbia bencher blames our law schools for this particular predicament of the bench. "Our law' schools are mass-producing lawyers with the result that they don't know very much law. They often make the most unconventional submissions, showing they don’t understand the simple ABCs of the law.”
Conflicting opinions over the judge's proper role and other matters often result in rough-and-tumble encounters in which judicial niceties are forgotten. Recently Justice A. M. Manson of the B.C. Supreme Court leaned over the bench and told a lawyer, "You go jump in the lake!" A few' months ago. in the Ontario Court of Appeal. Lewis Duncan, an ebullient Toronto iawyer. commented that a certain ruling "leaves me in the dark." Chief Justice Porter replied, "Is that a change?”
To fellow judges Chief Justice Porter's exasperation was completely understandable. They know' that emotional and mental strain is the ever-present occupational hazard for most judges. A judge is always in danger of being enervated by weariness and boredom. Everything stales by repetition and, after years of sitting on the bench, a judge finds cases tend to fall in a pattern. The judge has to gird himself to remain alert and maintain a sense of immediacy. Rape cases are illustrative. "You can easily become cynical,” one judge told me. "after seeing a long procession of w'omen who have agreed to the sexual act and, later, because of fear or revenge, want to have the man punished. Some judges reach the point w'here they believe that there’s no such thing as a bona fide case of rape. I can understand this attitude, but I disagree w'ith it. No tw'o cases are ever exactly alike. And while a given trial may be old stuff to the judge, you have to keep in mind that the case is new and vital to the parties concerned. You have the pow'cr to change the direction of their entire lives. You must constantly fight the danger of 'the professional mind'—deciding cases mechanically, like a robot.”
The torture of passing sentence
Living constantly amidst woe and strife is both psychologically and physically exhausting. "There are no happy litigants," a supreme-court judge told me. "If you award damages, it's only because the plaintiff has suffered a terrible injury; as for the defendant, he may be saddled with a terrible burden." He told me about an eighteen-year-old girl, in the prime of life, "as beautiful as Ingrid Bergman,” who appeared as a plaintiff after losing a leg and suffering severe facial disfigurement in an accident. A promising dramatic career had been nipped in the bud. “The law was clear,” said the judge. "The girl had been negligent and I had to dismiss her claim. That poor girl's grief haunted me for weeks after.”
A county-court judge described his painful reaction to one of his recent probate cases. A mother and her children were divided by bitterness and anger. In a heart-breaking scene, the mother was forced to admit that she was never married to her recently deceased "husband" —a fact which she had carefully concealed for tw'enty-five years.
Meting out severe sentences is not an enviable experience either. "I have sentenced ten men to death,” one judge told me. “Each time I experienced a violent emotional upheaval. I’ve had to take sleeping pills for several nights before and after the event. The first time I had to do it, I choked up in the middle of a sentence and couldn't force the words out.”
Another judge said, "I bolster myself for the occasion by telling myself that the man is undoubtedly guilty; that the jury made the decision, not me; I'm only an instrument pronouncing a mandatory sentence; that the convicted man still
has two chances to live—the Supreme Court of Canada and the Department of Justice in Ottawa. But even so. you become infected by a deep depression which lingers long after.” Some judges, in selfdefense. develop the ability to be impersonal w'hen sentencing. A Saskatchewan county-court judge said. "I would feel nothing even if my mother and father appeared before me. If convicted, they'd get the full penalty called for."
The magistrate, with his large caseload and limited facilities, is beset by special worries. A Maritimes magistrate ex-
presses deep concern about the endless procession of alcoholics who parade before him. Because effective facilities to treat them are either completely lacking or inadequate (and the same is true in most parts of Canada) he has no alternative but to sentence them to a short term in jail. It is not unusual to encounter men who have fifty, a hundred or even more convictions for drunkenness. The human cost of this neglect runs high: one of the magistrate's "regulars" first appeared in court as a single man. He is now accompanied by his two teen-
aged sons, both of them chronic drinkers.
A western magistrate is alarmed by the number of men appearing before him on sex charges. "Being legally sane, they stand trial and are shipped off to prison for the protection of the public." he says. “But it's savage treatment. They’re sick and need a special kind of medical care. But where can they get it? The whole business frightens me and weighs heavily on my mind."
Because of the contentious nature of their calling, benchers often have to bear the full force of public pressure and criti-
cism. Most judges and magistrates say they have no objection to the public criticizing them if their judicial conduct warrants it. “But most of the censure is unfair." says an Alberta judge. “How many editorial writers are expert in law or even bother to read the complete transcript of a trial before rushing into print with a scathing editorial?”
An Ontario magistrate agrees, relating how a group of twelve young men between the ages of sixteen and twenty-one were accused of using violence to break up a local teen-age dance. The local newspaper and several prominent citizens loudly demanded that the twelve suspects be lashed and sent to prison. Because of the public outcry, the magistrate carefully gave the reasons for his disposal of the case. Two of the boys were found guilty and placed on probation with a suspended sentence because they were first offenders. The other ten suspects were freed without punishment because there was insufficient evidence to convict them. “I applied the law as wisely and as fairly as possible but I was still attacked,” the magistrate told me.
Another magistrate pointed to a newspaper headline concerning one of his cases: MAN STEALS $9,000 AND
GETS NINE MONTHS. T LIKE YOUR TYPE’ SAYS JUDGE. He explained that the convicted man was a thirty-fouryear-old salesman who had converted nine thousand dollars which had belonged to a customer. The money had been restored. The offender was a fine-looking, well-spoken chap and had a long, unblemished record of service in his job. The magistrate listed these attributes before passing sentence, adding that the prisoner had impressed him favorably, that he liked him and that he would impose a sentence that would enable him to get back to society as soon as possible and restore himself to respectability. Because he had already spent three months behind bars, the prisoner was told he would have to serve only nine more months to complete his one-year sentence. “Some newspapers don’t understand what the modern magistrate is trying to do,” said the magistrate. “They’re old fashioned in their thinking.”
Sometimes public pressure is applied to a judge in a more direct way. During the 1958 bribery and conspiracy trial of Robert E. Sommers, former B. C. lands and forests minister, one of the supremecourt judges received poison-pen letters and murder threats. During another case another judge of the same court came home one night to find a load of fuel and a bottle of whisky awaiting him. As one of his current cases involved a fuel company, he concluded that they were the donors of the gifts. He summoned a cartage company and had the fuel taken away at a cost of ten dollars. The next morning, he tucked the whisky under his arm, intending to deliver it to the sheriff of the court. He broke it on the way and spent five dollars to replace it. “The bribery attempt cost me fifteen dollars," the judge said.
Many judges told me that they are often harshly criticized without justification simply because most laymen don't understand how our judicial system works. This is especially true of delays.
As often as not. it's a lawyer and not the judge who causes a delay. A supremecourt judge told me. "During last December. January and February, it was surprising how few lawyers whose cases were listed for trial were prepared to proceed. Perhaps they were making too much money back in their offices to waste their time in court.” A senior member of the bar added, “Many lawyers are
either lazy, incompetent or poorly organized. They accept a case involving litigation, then shove it aside for work which is less time-consuming and more lucrative.”
A western judge told Maclean’s, “Not long ago a local lawyer agreed to act for three clients—each scheduled to appear in different courts at the same time.” Obviously, this was unfair to both the clients and the courts. Some delays are deliberately engineered by lawyers—and there are dozens of w'ays of doing so— in the interests of their clients. A defendant being asked for money, for instance, is in no great rush to proceed to trial. Or sometimes it’s the plaintiff who wants a long postponement. A lawyer who was representing a woman injured in a railway accident told me, ”1 delayed going to trial for two years so we could assess the permanent effects of her injuries. You have to be careful: you can’t reopen a case once it has been heard.” Judges also say the public doesn’t realize how much work they are required to do outside the courtroom. They perform a variety of legal functions in their chambers. Writing judgments on reserved cases is a long, complicated procedure requiring a large amount of undisturbed
time. “Writing a judgment can take longer than the trial,” a Nova Scotia judge told me. “I’ve written as many as nine drafts before I was satisfied with it.” A B. C. judge observed that part of his vacation is going to be spent writing a judgment of a case involving constitutional law. “The written argument runs to a few hundred pages and I haven’t had time to tackle it since last October.”
Hard work alone is not enough to remedy the delays, inefficiencies and inequalities which occur in our judicial system. The basic problem is that we are trying to handle a bulky, complex 1959 work load with the procedures, facilities and administrative methods of a half century ago. Certain reforms and innovations are needed. Here are the suggestions which were most frequently made in the course of interviews Maclean's conducted with lawyers, judges and lawschool professors all across Canada:
1. What is first needed is a climate favorable to change among members of both the bar and bench. Because of their daily preoccupation w'ith precedents, the legal fraternity tends to regard the present structure and procedures as sacrosanct. "Law' is a backward - looking science.” says Cecil Wright, dean of the University of Toronto law school. "It can easily become reactionary.” The conviction must exist, in the words of Chief Justice Vanderbilt of New Jersey, that "delays and inefficiencies in the administration of justice are a curable disease.” Vanderbilt demonstrated the truth of this statement by doing a spectacular job of streamlining the New Jersey courts during the past ten years.
2. As a framework of reference for future changes, we must take a long and searching look at our laws, our courts
and our judges and see how well the system is working. At present we don't honestly know. A basic research job would answer such elementary questions as: How many courtrooms and judges are required to serve a nation of seventeen million people? Where should they be located? What should be the proper distribution of jurisdiction between the various courts? How w-ell are our laws working?
Such a comprehensive study might suggest far-reaching reforms in the future. Already jurists like Professor M. J. Woods, of the University of Saskatchewan Faculty of Law, have suggested that “our system, which permits three sets of trial courts—magistrates, county or district and higher courts—is cumbersome. We should have one set of trial courts, with the judges federally appointed and enjoying equal pay and prestige.”
Woods also suggests that we streamline our rules of procedure so that a determined counsel can’t delay trials interminably. He advocates a more efficient method of pre-trial procedure in which judges and counsel confer frequently and “pave the way for an expeditious trial.” Cecil Wright, of the University of Toronto, advises that we carefully scrutinize our present maze of laws, “removing the bugs and making them simple and logical.”
A definitive study of our court system might indicate the wisdom of introducing the management methods of modern business to administer our courts. At present, some judges are overworked while some enjoy what is tantamount to a sinecure. New Jersey has discovered that efficient administration can yield a rich harvest. In one year, certain administrative changes made it possible for the law division of the supreme court to dispose of ninety-three percent more cases, even with the services of one judge less. Fortunately, the Canadian Bar Association is studying the problem through a Legal Research Institute, which might provide us with some of the information we so urgently need about our judicial system.
3. Our law faculties and schools should be enriched and improved so that they can turn out wise and inquiring graduates, rich in a cultural background, who possess a firm grasp of the philosophy of law and are articulate in both the spoken and written word. Since these young men will ultimately occupy positions on the bench, this is one way of meeting the current criticism that our higher courts are not developing a distinctly Canadian jurisprudence in their written judgments.
Measures such as these, in the opinion of many of our eminent jurists, would revitalize and strengthen our courts so that they can completely fulfill their intended role as a bulwark of our democratic system of government, -fa