“The Lawyer Doth Protest Too Much, Methinks”: The Coming Supreme Court case of Doré v Bernard

One of the more novel cases that the Supreme Court of Canada (“SCC”) will hear in their winter 2011 session is Doré v Bernard, a case stemming from a 2001 incident in the Quebec Superior Court that landed at the SCC via the Quebec Court of Appeal (“QCCA”) (see 2008 QCCA 1438). The case concerns the ability of a lawyer to openly criticize judges, and raises interesting issues of freedom of expression in a court-related context.

The case also contains the delightful irony of having judges decide exactly where the line should be drawn in criticism of their own behaviour. We probably should not expect more than low murmurs of mild discontent from the criminal defense bench and other interveners if the SCC upholds the QCCA ruling.

Factual Background

In 2001, criminal lawyer Gilles Doré made an application for judicial interim release (i.e. a bail hearing) before Quebec Superior Court Justice Jean-Guy Boilard. Justice Boilard denied bail in the hearing, and also sent some parting shots in the direction of Mr. Doré. Specifically, the Justice let Mr. Doré know during the hearing that he felt defense’s arguments were completely ridiculous and full of overblown rhetoric and hyperbole, as well as mentioning, in front of Mr. Doré’s client, that “an insolent lawyer is rarely of use to his client (translation).”

In response to this outburst from the bench, Mr. Doré fired off a rather scathing and personal letter to Justice Boilard. Lawyersweekly.ca translated the letter as follows:

Sir,

I have just left the Court. Just a few minutes ago, as you cowardly hid behind your status, you made comments about me that were both unjust and unjustified, scattering them here and there in a decision the good faith of which will most likely be argued before our Court of Appeal.

Since you marched out quickly and refused to hear me, I have chosen to write a letter as an entirely personal response to the equally personal remarks you permitted yourself to make about me. This letter, therefore, is from man to man and is outside the ambit of my profession and your functions.

If no one has ever told you the following, then it is high time someone did. If your chronic inability to master any social skills (to use an expression in English, that language you love so much), has led you to become pedantic, aggressive, and petty in your daily life, it makes no difference to me; it seems to suit you well.

If however, you deliberately introduce these character traits while exercising your judicial functions, and you make it your trademark, then it concerns me a great deal, and I feel that it is appropriate to tell you.

Your legal knowledge, which appears to have earned the approval of a certain number of your colleagues, is far from sufficient to make you the person you could or should be professionally. Your determination to purge any humanity from your judicial position, your essentially non-existent listening skills, and your propensity to use your court – where you lack the courage to hear opinions contrary to your own – to launch ugly, vulgar, and mean personal attacks not only confirms that you are as loathsome as suspected, but also casts shame on you as a judge, that most extraordinarily important function that was entrusted to you.

I would have liked to say this to you personally but I highly doubt that, given your arrogance, you are able to face your detractors without hiding behind your judicial position.

Worse still, you possess the most appalling of all shortcomings for a man in your position: You are fundamentally unjust and I doubt that that will ever change.

Needless to say, the Justice was less than pleased with this informal dressing down, and forwarded the letter to the Chief Justice of the Superior Court. Doré ended up being suspended for 21 days by the Quebec bar. Doré also filed a complaint with the Canadian Judicial Council, which resulted in a disciplinary finding that Justice Boilard showed a “flagrant lack of respect” towards an officer of the court, one that threatened to unjustifiably undermine his reputation in front of his client, the court, and the public.

Basis of Appeal

The legal aspect of the case is no less intriguing than the tempers, egos, and vitriol apparent in the facts.

Doré was suspended under the Code of Ethics of Advocates, a professional code that lays out the responsibilities of lawyers of the Quebec bar. The Code demands that a lawyer’s conduct and criticism are done with “objectivity, moderation, and dignity” and in a fashion that does not act to derogate from the profession’s honour or dignity. Doré’s constitutionality challenge failed under a section 1 analysis as a reasonable limit, and this was the primary basis for his appeal. He argued that there was no evidence adduced as to why this limit on his freedom of expression was reasonable under s. 1, and that the judicial system did not require the protection of this type of disciplinary hearing and sentence.

The Charter Argument

The disciplinary committee conceded that section 2.03 of the Code of Conduct for Lawyers may violate members’ Charter section 2(b) right of free expression, and determined that any infringement was reasonably justified in a free and democratic society. The QCCA also determined that this was an obvious infringement, and spent the majority of their time dealing with the section 1 analysis. The committee made reference to a separate disciplinary committee case, LeBoutillier, which denied a lawyer the right to call a judge “abhorrent,” “arrogant,” and “fundamentally unfair.” In restricting a lawyer’s freedom of speech the committee noted that lawyers and judges must work together in the best interests of justice, and that unruly and vitriolic behaviour does not serve that purpose.

In LeBoutillier, as here, the court appropriately noted that a lawyer does not necessarily cease to be a member of the bar and an officer of the court when writing a personal letter to a judge. Moreover, in the sense that the series of insults were a direct result of the Judge’s conduct in a case, it is virtually impossible to overlook the professional context in this case.

The Court of Appeal looked to the SCC case Multani v Commission scolaire Marguerite-Bourgeoys, [2006] 1 SCR 256, in setting out the standard that “minimal (and reasonable) impairment” is what the court requires to uphold an infringement under section 1. The appellant’s argument against his censure was that the committee adduced no evidence to justify the infringement of his liberty, and cites R v Kopyto (1987), 39 CCC (3d) 1 (Ont CA), in which Justice Cory stated that “the courts are not fragile flowers that will wither in the hot heat of controversy.”

Doré v Bernard sets up as an interesting argument. When ordinary citizens shout about the injustices served upon them by the legal system from the courthouse steps, their right to do so is and should be protected (save limits such as hate speech). What if this ordinary Canadian is a lawyer? Does it matter if they are involved in the case that they are complaining about, or does their standing as a member of the profession cast doubt upon the legal system when they air their grievances? In a perfect world, lawyers would have complete freedom to speak their mind about the courts, judges, and judicial decisions, but the argument that this could have the effect of undermining confidence in the legal system does not seem too far-fetched.

The Objective of the Act

To uphold legislation through section 1, the court must go through the Oakes test. The first step is to prove that the impugned legislation, here the Code of Ethics of Advocates, has an important legislative intention.

Here, the goal of protecting the court system is clearly one that qualifies as an important legislative intention, and the appellant did not contest this aspect. The court notes that the two major measures adopted by Parliament to achieve the goals inherent in this act are education and discipline.

It seems clear that the disciplinary committee did not stray outside the bounds of their legislative framework, and as such the Court’s finding that the objective was valid and that the decision sought to uphold it was reasonable, and likely will not face a great degree of scrutiny from the SCC.

The Proportionality of the Infringement

As noted by the Court, this is the heart of the dispute. The proportionality test consists of three elements:

1. The measure must have a rational connection to the target;
2. The measure must be the least intrusive with respect to the freedom guaranteed; and
3. There must be proportionality between the effects of the measure restricting freedom under a recognized and important goal.

Rational Connection

The Court of Appeal found that there was a rational link between the punishment and the protection of our court system. They characterized lawyers as having the exclusive privilege of being auxiliaries of justice, and given this important role conduct considered inappropriate requires punishment. The court maintains that when Mr. Doré attacked the Justice as being “fundamentally unfair”, he directly attacked the very foundations of a judge’s role in our society and our justice system.

Although Mr. Doré’s attacks are very harsh, very personal, and hit very close to a lot of important judicial functions, I do not feel the Court of Appeal spent enough time dealing with the importance or relevance of context of the communications in question. In my opinion, the justice system is best served by the honest, comprehensive, and full-throated debate of legal issues and judicial decisions. Mr. Doré should have the right to publish a step-by-step denunciation of Justice Boilard’s decision on the front page of the Globe and Mail (or, more appropriately, the Gazette) if he so chooses. The Court should not in any way be influenced by the fickle beat of public opinion, but the public has every right to know what is happening in Canadian courts.

To my mind, the ad hominem nature of the insult and the fact that it concerned the Justice’s fitness to hold his position is what is important in saying that there is a connection between protecting the court system and disciplining lawyers. If this had been an enraged (but nuanced) letter detailing the aspects of the bail application that should not have been so easily dismissed by the Justice, punishment would not be appropriate. Given the novel nature of this case and the uncertainty of predicting when the Supreme Court will have another opportunity to speak on a lawyer’s professional freedom of speech, my hope is that a clear standard and delineation of acceptable and unacceptable speech will be drawn.

Minimum Impairment

Next, the court found that Article 2.03 of the Code of Conduct did not absolutely prohibit free speech (para. 48). Additionally, the court noted that the serious consequences involved do not seem unreasonable with respect to a serious ethical breach. If we accept the seriousness of the offence and the need for punishment, then the precise punishments in place are appropriate in a case like this where there was a temporary suspension for a flagrantly personal letter that constituted a serious breach.

Proportionality

In keeping with the tenor of the decision to this point, the court determined this law was proportionate as it did not restrict rights more than necessary, and only sanctioned purely offensive behaviour.  The offensive nature of the comments in the letter made the conclusion of proportionality seem more obvious then it really is. To have reasonable penalties in place to stop vile, offensive, and personal insults seems to be a rather obvious limit on freedom of speech in this context.

On the other hand, whether sanctioning everything that falls short of being “objective, moderate, and dignified” can be held as a reasonable limit is a slightly different question. It will be interesting to see how much the Supreme Court sticks to the facts in this case as opposed to dealing with the entirety of the provisions that are under review.

Conclusion

Reviewing freedom of speech issues can often put the reviewer in the somewhat awkward position of defending a person’s right to make comments that are far less defensible on their own merits. Here, having a judge basically take a broad-side shot at your professional credibility for no apparent reason would no doubt be infuriating, but Mr. Doré’s response was equally petty, albeit much less public. In my opinion, the tragedy in this case is that Mr. Doré did not simply have the Judge excoriated through the formal process of reviewing judgments.

I wait with anticipation to see where the SCC draws the line on a lawyer’s ability to criticize a justice. It would be nice to see a discussion of the context of a lawyer’s intemperate comments, especially in an age where it is increasingly easy to put your opinion out there for the world to read.