Ottawa Citizen
Thursday, December 13, 2001

Experts share my opinion that judges must explain rulings

Dave Brown
The Ottawa Citizen

One can't expect to wander into the lofty world inhabited by judges and make observations without picking up an occasional nosebleed, if not from the altitude then from the attitude.

Andy Haydon got a taste of it last month when he appeared before the Federal Court of Appeal. The former regional chairman represented himself and spent months preparing his argument, and an hour and 15 minutes delivering it.

The three-judge panel promptly delivered a one-sentence decision and marched out, black gowns flapping.

This column Nov. 15 was devoted to that display of judicial put-down, and I made the point that Mr. Haydon was entitled to a little more courtesy.

I said the judicial attitude smacked of arrogance; that it was rude not to give Mr. Haydon more detailed reasons for the judgment.

That put me in nosebleed territory, and it was delivered Nov. 26 through a letter to the editor from Judge John D. Richard, Chief Justice of the Federal Court of Canada. "The events do not support this allegation," he wrote.

He quoted the complete judgment and said it was enough. "We have not been persuaded that the Tax Court Judge erred in dismissing the applicant's appeal against the minister's reassessment for the 1997 taxation year."

Judges are going to have to get used to the idea that more people are going to be appearing in front of them without lawyers. The cost has become prohibitive, especially in a case like Mr. Haydon's where Revenue Canada appeared willing to spare no taxpayer expense in pressing an issue that went back 10 years and involved only $3,000.

My belief that judges owe appellants more of an explanation than given in that one line, is supported by Canada's Courts by Peter McCormack of the University of Lethbridge.

On page 136 of the 1994 publication, paragraph two, Mr. McCormack writes: "It is a very important principle of our judicial process that judges are obliged, or at least expected to give reasons for their decisions. They do not say simply X wins and Y loses ... These reasons are our protection against arbitrary decisions and wilful judges, our assurance that a decision is not a casual preference of a person who happens to be wearing a black gown but a decision that grows out of the law in which it is founded.

"Britain's distinguished jurist Lord Denning identified the giving of reasons as 'the whole difference between a judicial decision and an arbitrary one'."

Revenue Canada has audited six of Mr. Haydon's annual tax returns since he disputed that 1989 issue. He is trying to tell our court system that somebody should rein in the taxman's team.

It wasn't his first bloody nose. He's getting himself pumped up, in a paperwork sense, for the next round.

One of the friendliest courts is also the most dangerous. Family courts offer no presumption of innocence and rules of evidence are vague. I have often seen family court judges stop proceedings to explain to self represented parents what steps they should take to further a case, or protect themselves.

In a child protection case

I've reported on for almost 10 years, I've seen judges instruct lawyers to give a little fast advice to the unrepresented mother.

Making a judge

In the 1950s and '60s when judges still had people contact, Hull judge Avila Labelle, over a beer, used to love to tell the story of his appointment. Quebec premier Maurice Duplessis phoned lawyer Labelle and asked if he knew the meaning of the word create. Indeed, said the lawyer. It meant to make something from nothing.

"I'm creating a judge and you're it," was the news.

Learned Look

When he died in 1994, Toronto judge Gerald Young was remembered in his obituary for an observation on the qualities needed for his job. It has been pinned over my desk since.

"There are two minimum requirements for a good judge -- gray hair and hemorrhoids. One makes you look distinguished. The other makes you look concerned."

Dave Brown is the Citizen's senior editor. Send e-mail to dbrown@thecitizen.southam.ca Read previous columns by Dave Brown at www.ottawacitizen.com

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