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The Public’s Right To Criticize Judges| Regina v
Glen Dalke: This case involved an application by the Crown to have the editor of the Peace River Block Daily committed for contempt of court by reason of an editorial he published that contained stringent criticism of a decision to grant bail to a person accused of rape who soon after being released raped and murdered another woman. Judge Munroe dismissed the application. His reasons are a precise and authoritative dissertation on every citizens right to criticize judges and their decisions. This is the essence of Munroe’s decision: “Justice is not a cloistered virtue; she must be allowed to suffer scrutiny and respectful, even though outspoken, comments by ordinary men - (Lord Atkin in Ambard v. Attorney-General). It is prima face legitimate to criticize a judge’s conduct in a particular case or to criticize any particular decision or series of decisions given by the courts id done without casting any aspersions on the motives of the judge or court, and without abuse. The courts are not above criticism.” The following
is the full text of Munroe’s reasons for judgment: “I am sick and tired of hearing of people who have been arrested for one crime or another and released on bail only to go out and commit yet another offence. It must be extremely frustrating for our law enforcement officers. “The penal system was, at one time, a way to protect society from these criminal types and when the judiciary followed the old adage of punishment fitting the crime, it worked well, however, our society’s permissiveness has now infiltrated this body that was set up to protect us. “The judiciary should now take a long hard look at themselves and come to the realization that they have become too permissive. An example of their leniency is as follows: A man charged with rape of a local woman was remanded in custody to wait for the preliminary hearing. While in custody in Prince George, he was again brought before the courts and this time was released on bail. In November, 1980, at his preliminary hearing, a trial date was set up in conjunction with the spring assizes and he again was released on bail. A couple of days ago, this same person was charged in the Edmonton court with the recent rape and murder of a Whitecourt woman. “I realize that judges are only human and are not infallible, however, I feel that anyone who commits such a serious crime should remain in custody until he has either been acquitted or proven guilty. I also feel that the self-righteous do-gooders, whether they be relatives of the accused or whomever helped obtain his release on bail in Prince George, are accessories to this latest charge. I hope their conscience keeps them awake at nights. “Chief Justice Allen McEachern of the B.C. Supreme Court claims that most Canadians are less fearful than Americans of authoritative bodies such as police forces. I think that this is due to the greater permissiveness or leniency of our courts; the police make arrests one day and the courts put them back on the streets the nest. Imagine, if you will, society’s rage, if (God forbid) police forces became this permissive and quite simply stopped making arrests, gave up, said: What is the use. “Punishments must fit the crime, bail should not be granted on serious charges and reinstatement of the death penalty; are just a few of the things that the judiciary must now reconsider before society feels the need to arm itself for its own protection.” Counsel for the Crown submits that the said editorial amount to a contempt of court because it prejudiced the fair trial of any person charged with rape who was to be tried in the forthcoming Assize Court to be held at Dawson Creek and because, on its face, it amounted to a contempt of court. After consideration, I have reached the conclusion that, though in questionable taste and intemperate, the Crown has not proved beyond a reasonable doubt that the editorial constituted contempt of court. (However) it is misleading when it suggests that the judiciary must now reconsider the reinstatement of the death penalty. Judges administer the law; they do no make it. It is for Parliament, not the judges, to decide whether or not the death penalty should be reinstated. The principles which govern an application of this nature have been reviewed in many authorities including Regina v. Froese et al (1980) 54 CCC (2d) 315, Attorney-General for Manitoba V. Radio OB Ltd. (1976) 31 CCC (2d) 1, Attorney-General V. Times Newspaper Ltd. (1973) 3 A.E.R. 54, Regina V. Fotheringham (1970) 11 DLR (3d) 353, Ambard v. Attorney-General of Trinidad and Tobago (1936) Privy Council Cases 72, R. v. Brett (1950 Victoria Supreme Court Reports 226, Regina v. Commissioner of Police of the Metropolis (1968) 2 Q.B. 150, Regina v Murphy (1969) 4 DLR (3d) 289. Upon a fair reading of the editorial I am of the opinion that it amounted to criticism of alleged weakness in administering the bail laws and was written without malice and with reasonable courtesy, and did not impute lack of impartiality or improper motives to those who administer justice. It did not impair the administration of justice. There is a public right of criticism of the judges and that is a right to be preserved: R. V. Glanzer (1963) 1 CCC 364. “Justice is not a cloistered virtue; she must be allowed to suffer scrutiny and respectful, even though outspoken, comments by ordinary men,” said Lord Atkin in Ambard v. Attorney-General, supra. It is prima facie legitimate to criticize a judge’s conduct in a particular case or to criticize any particular decision or series of decisions given by the courts if done without casting any aspersions on the motives of a judge or court, and without abuse. The courts are not above criticism. I hold that the editorial in question was written in good faith, without malice, for no improper purpose, and attributed no improper motive to those taking part in the administration of justice, on a matter of public interest. It did not identify any accused person nor say that such person was guilty of rape. The material before me does not disclose how many persons were to be tried on a charge of rape at the Dawson Creek Assize court. Nevertheless, newspapers should realize that it is contempt of court to publicly disclose previous convictions of any person awaiting trial, and if it had been proved that this editorial prejudiced the fair trial of any accused person, I would find guilt. The application is dismissed. May 12, 1981.” |
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