Guest Commentary

Senator Brent Cotter


(Editor’s note: On February 16 Senator Brent Cotter, former Saskatchewan Deputy Minister of Justice, spoke in debate on Bill C-9 An Act To Amend The Judges Act. Cotter is a former Dalhousie law professor and dean of law at the University of Saskatchewan. Following is a partial transcription of his remarks)

I want to tell you two stories that, to my mind, humanize the questions of judicial conduct and accountability for lawyers, and especially for clients, and make the case for this very important bill.

When I was a young lawyer, for the grounds of divorce, even if uncontested, the person seeking the divorce was required to appear before a Superior Court judge and testify. I represented a woman who was seeking a divorce on the grounds of physical cruelty.

She testified that when she was having a falling-out and decided to leave her spouse, she was putting on her coat to leave when he asked, “Where are you going?” She said, “I’m leaving you and I’m going out to look for an apartment.” The man punched her in the face and knocked her off her feet. After she testified, the judge asked me what the grounds were of the physical cruelty that I was alleging, and I said that it was the punch in the face and being knocked off her feet. The judge said, “That’s not physical cruelty. She deserved that.” He dismissed her application for a divorce.

I was a young lawyer and I was mortified, quite frankly. The woman was crushed by this. There is an appeal process but that drags out the process. We found a workaround. I didn’t know what to do. I spoke to the chief justice of the court. He said he would have a quiet conversation with the judge and that was all.

I have a second example, somewhat more recent. I was representing a person who had won a $2,000 award in Small Claims Court. For some reason, the people on the other side appealed the judgment. It then went to the former County Court in Nova Scotia. The judge heard the case, required us to make a full presentation over this $2,000 and reserved judgment, that is, the judge took it under consideration.

I worked at Dalhousie Legal Aid Service for a period of time. I left to work again at the law school at Dalhousie University. Three years later I returned to the clinic and the judge had still not issued his judgment on this $2,000 claim. I met with the chief justice of the province. I did not know what to do. His advice was to just keep quiet about it and wait for the judgment.

I waited. The judge died. I was very fond of that particular judge but this was not helping my client. We had to then find a workaround or relitigate the case.

These issues are frustrating to a lawyer. I lost a lot of cases, not too many quite like this. But it was unbelievably unfair to the client. The client’s job is only to receive justice in her case, not solve the problems of judicial accountability…

I will speak on accountability. I attended a legal and judicial conference in Vancouver in 1980 when matters of judicial discipline were not much in the public eye. At the conference a senior judge in British Columbia was asked about judicial accountability. The judge replied, “Accountability? To whom am I accountable? I am accountable to myself.”

The judge who provided the answer was among the most respected judges in this country and I think what he was saying was, “I take my job seriously and I live up to standards of ethics and professional conduct.” However, the statement did seem to emphasize an imperial approach and a lack of public accountability. Much has changed from that time to now. Public expectations of discipline around judges have brought us to this point, a good point.

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