Grow a Thicker Skin

Justice Joëlle Roy, of Quebec’s provincial court, is not amused. At all. And she’ll have you know it. More importantly, she’ll have all involved in a sexual assault and incest case she’d been hearing know it. Even though neither they nor the case had anything to do with Justice Roy not being amused. No matter: as La Presse reported, Justice Roy pulled out of the trial, though a further report confirms the proceedings will after all be able to continue with a different judge (in application, so far as I can tell, of s 669.2 of the Criminal Code). But it’s a most unfortunate story, which reminds us of a fundamental requirement for judicial anatomy: a thick skin, to go with a stiff spine, a solid gut, and a good brain.

Justice Roy’s tantrum is in response to a column by Yves Boisvert, also in La Presse. Mr. Boisvert describes a judgment by Justice Roy in a different sexual assault case, which in his view is badly tainted by an embrace of rape myths of the perfect-victim variety ― he writes that it “is not too far away from the notorious ‘why didn’t you keep your knees’ together, which got an Albertan judge removed from office” (translation mine, here and below). Mr. Boisvert then proceeds to make a broader point about Justice Roy: “Within just seven years of her appointment, she has already been harshly rebuked by appellate courts on multiple occasions,” which he then lists. Not just reversed, mind you, but reversed based on “serious and repeated errors of judgment”, which, Mr. Boisvert argues, raise questions about Justice Roy’s “competence”.

This is harsh criticism, no doubt. But it is criticism based on facts presented to the reader and detailed so far as a newspaper column permits (though I do wish newspapers ― especially those, like La Presse, that are only published online anyway ― actually linked to judgments when those are available). And, while this wouldn’t excuse unfair criticism, it is worth noting that Mr. Boisvert is a knowledgeable and experienced writer about the justice system. I have had my differences with him, but he is neither a hack nor a rabble-rouser. I haven’t read the judgments he discusses, so I won’t express a definitive opinion on the fairness of his column, but even if one disagrees with it, it does not strike me as a hit piece. And it is certainly not an attack on Joëlle Roy the person rather than Justice Roy the judge.

In other words, it is a piece of perfectly legitimate criticism directed at the holder of a public office. It is precisely the sort of thing that journalists are expected to do. And office-holders are expected to put up with this sort of thing, because it comes with their station ― no less than the forms of respect and the salaries to which they are entitled. This is no less true of judges than of elected officials, because judges exercise coercive power over citizens. It is, or at any rate it ought to be true, that they do not control the “direction either of the strength or of the wealth of the society” and “may truly be said to have neither FORCE nor WILL, but merely judgment”. But when they are lacking in precisely that quality which they are called upon to exercise, they not only can but must be criticised for it. To be sure, as I have noted here, there are examples of criticism that goes far beyond what is justifiable, which should be denounced. But even then, that task falls not to the judges themselves, but by those of us who care about the judicial system.

Justice Roy, seemingly, is not of this view. The La Presse story linked to above describes her taking to the bench twice rather than once, in the aforementioned incest trial, to respond to Mr. Boisvert’s column. On the day it was published, Justice Roy described it as a “very vicious personal attack”. The next day, she read a prepared statement calling it “very violent”, and explaining her words the day before as due to her having “been punched. Because yes, words are sometimes like punches, more vicious even, especially when they are of this sort and magnitude.”

This is a remarkable outburst ― La Presse quotes judicial ethics experts who struggle to recall its like. They also point out that it calls Justice Roy’s “equanimity” (“sérénité“) into question. So it does. Her judgment too ― ironically, perhaps, but unsurprisingly, since that’s what Mr. Boisvert’s column said. To repeat, that column is not a personal attack. It is criticism of the manner in which an office-holder discharges her duties. But even a personal attack does not justify the “words are violence” move that Justice Roy pulls with an obliviousness that would be comical if it were less sad. Words, even very nasty words addressed to public officials, are not violence. It is a good thing that Canadian law no longer recognizes the contempt of “scandalizing the court”, which referred to doing or saying something “calculated to bring a Court or a judge of the Court into contempt, or to lower his authority” ( R v Gray, [1900] 2 QB 36). One can only imagine how Justice Roy would have used it.

I am sure that it is thoroughly unpleasant for a judge to read public criticism, whether on a blog like this one, in a journal article (assuming judges read those once in a blue moon), or in a newspaper. It must hurt, and it must hurt all the more when it follows on from criticism delivered by the Court of Appeal, to which judges are sensitive. But, again, this comes with the office and with the nicer things about it. When you work for the public, especially in a position that involves sending members of the public to prison ― or failing to do so ― you have to put up with public scrutiny and even with public nastiness. If you don’t like that, you always have the option of resigning, and freeing up the spot on the bench for someone who is better able to cope with criticism. Who knows, they might even give less occasion for such criticism into the bargain.