The Lawyers Weekly - September 23, 2011

THE LAWYERS WEEKLY
September 23, 2011 | 23

BUSINESS
CAREERS

Are lawyers too
rude these days?

JOHN SCHOFIELD

In the rarefied world of the judiciary, it
was an unconventional move that raised
eyebrows and made headlines. In July,
Ontario Superior Court Judge Howard
Chisvin suddenly freed 12 accused crimin-
als because a Crown attorney was a few
minutes late returning to the courtroom in
Newmarket, Ont., just north of Toronto.
The accused included a man considered to
be a violent schizophrenic, a spouse
charged in a domestic abuse case, a dis-
barred lawyer charged with fraud and a
robbery suspect. The unusual decision
sparked immediate appeals and a com-
plaint from Ontario’s chief prosecutor to
the Ontario Judicial Council. “The ques-
tion is, what motivated Judge Chisvin?”
asked the National Post’s brash columnist
and veteran court reporter Christie Blatch-
ford. “Was he merely having a bad day?”
The incident renewed
an ongoing debate about
courtesy in the courtroom
and the discretionary
power of judges. In the
face of increasing com-
plaints about the behav-
iour of lawyers in court,
the Law Society of Upper
Canada (LSUC) two years
ago introduced its Civility Complaints
Protocols, which give judges and justices
of the peace a formal procedure for refer-
ring incidents of misconduct to the law
society. But the importance of decorum
doesn’t stop with lawyers, says Malcolm
Heins, the law society’s chief executive
officer. “It’s the responsibility of every-
body—the judiciary, lawyers, all of us
working together—to make sure the
administration of justice functions appro-
priately and the public sees that,” he says.
“If it’s not administered in that fashion,
the system starts to break down.”
Judges need a significant amount of
discretion and scope to ensure that court
proceedings run smoothly and fairly, says
Sanjeev Anand, dean of the College of Law
at the University of Saskatchewan in Sas-
katoon. That power doesn’t normally
extend to dismissing charges, he notes.
Judges who are concerned about a lawyer’s
conduct typically seek an explanation or
adjourn the case. In more serious situa-
tions, they can complain to their provin-
cial law society or accuse the lawyer of
contempt. In the Chisvin episode, he
speculates, temper seemingly won out over
reason. “It seems like it’s an example of a
judge losing patience with a particular
Crown and seeking to punish him, and
that to me is inappropriate,” says the for-
mer University of Alberta law professor.
“This kind of ruling has the potential to
significantly impact public safety, and
that’s not warranted.”
Still, badly behaved judges are extremely
rare, says Anand. Most are genuine profes-
sionals who approach their positions with
solemnity and respect. “That’s a testament
to the vetting process we have for the judi-
ciary,” he adds. “They may not be perfect,
but the vetting committees do a fairly good
job of ensuring that judges have the right
disposition. They’re very concerned about
the impact of what they’re doing on the
public’s confidence in the justice system.”
For lawyers, the picture is not quite as
positive. In Ontario, complaints to the law
society concerning unprofessional conduct,
Some observers say the
increase in incivility among lawyers over
the years simply reflects an erosion in
politeness in society as a whole. Others
believe the rudeness stems from rising
stress levels and an evolving legal land-
scape where clients are demanding more
results for less money. Some legal experts
also argue that as the number of practis-
ing lawyers grows, collegiality is declining
because the same lawyers and judges are
interacting less often. Inspired by TV
shows or movies, some clients expect
their lawyers to be aggressive. And some
lawyers, especially those involved in liti-
gation, see a hard-charging approach as
an attribute.

including incivility, tripled between 2004 and 2009, jumping from 11 per cent to 35 per cent of the overall total. Since September 2009, when the Civility Complaints Protocols came into effect, the law society has received 42 complaints from judges specifically, including 32 last year and five in the first quarter of 2011. The misconduct ranges from bad language or sarcasm to blatantly misleading the court or taking unfounded positions to delay proceedings. Considering Ontario has 43,000 lawyers and 3,500 paralegals, the number of complaints is relatively small, says Heins. But the figure, he adds, may not reflect the full magnitude of the problem. “I’m sure there are far more occurrences,” he says. “They’re probably of little consequence, though, and can be handled in the courts themselves.”

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PAGE 24

JUDICIAL VACANCY
ONTARIO COURT OF JUSTICE
OWEN SOUND

The Judicial Appointments Advisory Committee advises the Attorney General of Ontario on the appointment of Judges to the Ontario Court of Justice, and invites applications for a judicial position in Owen Sound.

This appointment, while primarily a family law position, may also involve presiding over criminal law matters and could also involve travel within or beyond the regional boundaries as assigned by the Regional Senior Justice and/or the Chief Justice.

The minimum requirement to apply to be a Judge in the Ontario Court of Justice is ten years completed membership as a barrister and solicitor at the Bar of one of the Provinces or Territories of Canada.

All candidates must apply either by submitting 14 copies of the current (Jan 2011) completed Judicial Candidate Information Form in the first instance or by a short letter ( 14 copies) if the current form has been submitted within the previous 12 months. Should you wish to change any information in your application, you must send in 14 copies of a fully revised Judicial Candidate Information Form.

If you wish to apply and need a current Judicial Candidate Information Form, or if you
would like further information, please contact:
Judicial Appointments Advisory Committee
Tel: (416) 326-4060. Fax: (416) 212-7316
Website: www.ontariocourts.on.ca/jaac/en/
All applications, either sent by courier, mail or hand delivery, must be sent to:

Judicial Appointments Advisory Committee c/o Ministry of Government Services Mail Delivery 77 Wellesley Street West, Room M2B-88 Macdonald Block, Queen’s Park Toronto, Ontario, M7A 1N3

Applications must be on the current prescribed form and must be TYPEWRITTEN or COMPUTER GENERATED and RECEIVED BY 4:30 p.m. on Friday, October 14, 2011. CANDIDATES ARE REQUIRED TO PROVIDE 14 COPIES OF THEIR APPLICATION FORM OR LETTER. A Fax copy will be accepted only if 14 copies of the application or letter are sent concurrently by overnight courier. Applications received after this date WILL NOT be considered.

The Judiciary of the Ontario Court of Justice should reasonably reflect the diversity of the population it serves. Applications from members of equality-seeking groups are encouraged.