Lawyer faces hearing after
CBC Jan 17, 2005
ST. JOHN'S - A St. John's
lawyer may be penalized for critical comments he made about the
skills of judges.
Jerome Kennedy one of the
province's highest-profile defence lawyers told a conference
in July 2003 he was disappointed the Lamer Inquiry into the
justice system would not be examining the role of judges.
From July 28, 2003: Inquiry
should hear from judges, jury: lawyer
"It's the trial judges, some
of whom don't know what they are doing," Kennedy said at the
"Part of it is as a result of
political appointments. Part of this is as a result of
intentional or unintentional biases."
He asked the inquiry to
examine the role of judges and juries, but he was denied.
Kennedy's remarks drew a
complaint from Derek Green, the chief justice of the
Newfoundland Supreme Court.
Green wrote to the Law Society
of Newfoundland, complaining that Kennedy's comments were a
general condemnation of the judges of the Supreme Court, and
that they suggested systemic bias and deliberate
The Law Society of
Newfoundland is scheduled to hold a disciplinary hearing
While Kennedy is not speaking
publicly about the matter, his law practice partner, Bob
Simmonds, says lawyers should not be disciplined for criticizing
"It's not the penalty that we
are concerned about here," Simmonds says.
"It's the fact that they' re
going to tell us they're going to say to us, 'No, no, no, you
can't comment.' You can't do that. I'm sorry, I'm not willing to
swallow that not without a fight, anyhow."
If the Law Society hearing
finds that Kennedy did commit a misconduct, he could face a
reprimand, or even be disbarred.
The Lamer Inquiry, headed by
retired Supreme Court of Canada justice Antonio Lamer, is
examining how the justice system handled the cases of Randy
Druken, Ronald Dalton and Gregory Parsons.
Each man was convicted of
murder. Druken was released from prison while his case was being
appealed, and the Crown later stayed charges.
Parsons was exonerated for the
murder of his mother, while Dalton was found not guilty of his
wife's murder during a second trial.
Criticizing the judges
Globe and Mail ,
Editorial , January 17, 2005
It is time that the judiciary
was dragged kicking and screaming into the 21st century of free
speech. It is time that the bench stopped thinking of itself as
a fragile flower and accepted that lawyers will from time to
time make harsh and intemperate criticisms. A case in
Newfoundland and Labrador offers the perfect opportunity for the
judiciary to accept that free speech means that sometimes the
gloves come off.
Chief Justice Derek Green of
the province's trial division complained to the Law Society of
Newfoundland about the harsh public comments of lawyer Jerome
Kennedy, an advocate for the wrongly convicted. Mr. Kennedy
faces a professional misconduct hearing this week.
Mr. Kennedy was upset in
2003 that a public inquiry into three wrongful murder
convictions (all three of which he helped reveal as wrong) would
not look at the role that trial judges and jurors may have
played. He said in a speech that "trial judges who don't know
what they are doing" are one cause of wrongful convictions. He
said part of the problem is appointments made for political
reasons, rather than merit, and added that some judges have
"intentional or unintentional biases in other words, the
forming of a belief in guilt before all the evidence is in."
This is rough stuff by the
standards of the legal profession. At one time it might have
been cause for contempt-of-court hearing, under a common-law
rule against "scandalizing the court" designed to maintain the
public's faith in the administration of justice. But since the
Ontario Court of Appeal ruled in 1987 that this common-law rule
was overly restrictive of free speech under the 1982 Charter of
Rights and Freedoms, the rule has become nearly obsolete in
The Ontario ruling came
after a maverick lawyer, Harry Kopyto, told a Globe and Mail
reporter that the courts are "warped in favour of protecting the
police. The courts and the RCMP are sticking so close together
you'd think they were put together with Krazy Glue." One of the
appeal court judges, Peter Cory (later a member of the Supreme
Court of Canada), wrote that "the courts are not fragile flowers
that will wither in the hot heat of controversy." He also said
it cannot be expected that "criticism will always be muted by
restraint," and added that "hyperbole and colourful, perhaps
even disrespectful language may be the necessary touchstone to
fire the interest and imagination of the public"
Judge Cory's defence of free
speech is worth remembering in Mr. Kennedy's disciplinary
hearing. The Newfoundland law society's code of professional
conduct says "the lawyer should encourage public respect for and
try to improve the administration of justice." A tension exists
in that sentence: To offer a sincere criticism is to try to
improve the justice system, but criticism may undermine public
respect. Of course, a system that does not permit public
criticism and does not work on its flaws will lose more respect
in the long run.
Mr. Kennedy made an
extremely serious criticism in saying that some judges lack
open-mindedness. Did he believe his criticisms were true, and
did he hope to improve the justice system by making them? Or
was he simply trying to wound or spite the bench for personal
reasons? From what has been made public thus far, there seems
no reason to doubt Mr. Kennedy's sincerity. The law society
should send a message that the justice system won't wilt if
lawyers criticize the conduct of judges.
accused of misconduct
By KIRK MAKIN, JUSTICE
REPORTER, Globe and Mail, January 15, 2005
A prominent Newfoundland
defence lawyer, Jerome Kennedy, faces professional discipline
for allegedly slurring the entire judiciary.
A disciplinary hearing before
the Law Society of Newfoundland set for next week has been kept
under tight wraps since it was spawned by a 2003 complaint from
Chief Justice Derek Green of the trial division of the
Newfoundland Supreme Court.
The unusual proceeding
highlights a potential clash between judicial impartiality and a
lawyer's right to speak freely on issues of public importance.
In 2003, Mr. Kennedy, who has
helped bring to light several high-profile wrongful murder
convictions in the province, said trial judges "who don't know
what they are doing" rank as one of many reasons for wrongful
"Part of this is as a result
of political appointments," Mr. Kennedy said in a speech that
was carried in media reports.
"Part of it is as a result of
intentional or unintentional biases -- in other words, the
forming of a belief in guilt before all the evidence is in."
He made his comments on the
eve of an inquiry into three notorious Newfoundland wrongful
convictions, involving Greg Parsons, Randy Druken and Ronald
Dalton, all cases that Mr. Kennedy worked on.
Mr. Kennedy took umbrage at
the inquiry's refusal to examine the role that trial judges and
jurors may have had in the cases.
In a letter of complaint to
the Law Society of Newfoundland, Chief Justice Green said that
the comments could destroy public faith in the impartiality of
"These imputations strike
directly at the heart of the judicial oath," he said. "If true,
they would be grounds for removal from office of every judge
affected by the allegations.
"My concern with Mr. Kennedy's
comments is that they appear to be a generalized condemnation of
the judges of the Supreme Court, reflecting on their general
competence as well as suggesting not only inherent and systemic
bias, but also deliberate -- i.e. intentional -- partiality and
After Chief Justice Green's
complaint, Mr. Kennedy wrote to the law society to say that he
never intended to disparage the judiciary as a whole, and had
simply been pointing out that their role deserves scrutiny.
Bob Simmonds, Mr. Kennedy's
law partner, defended his colleague's right to speak out.
"He said that some
appointments are political," Mr. Simmonds said in a telephone
interview. "No lawyer in Canada would deny that is a fact."
Experience also shows that
some judges indeed fail to grasp the law or prejudge cases, Mr.
He said the disciplinary
hearing is "an absolute farce" that could chill other lawyers
"It is unbelievable that the
law society would proceed with this complaint," Mr. Simmonds
said. "Critical comments are made about lawyers all the time.
Does it mean that, as counsel, we have to keep our mouths shut?
"Because if it does, I'm in
the wrong profession.
"On the one hand, Jerome is
sometimes very forthright and blunt," Mr. Simmonds added. "On
the other hand, he is dead right about this. Somebody had to say
Mr. Simmonds said there is
rising public concern in Newfoundland about the province's
record of judicial miscarriages, and that any attempt to
suppress a champion of the wrongly convicted will be deeply
"How can such an integral part
of the trial process not be examined, when we've got more
wrongful convictions across Canada than I have fingers and
toes?" Mr. Simmonds said.
The ultimate punishment for
misconduct is disbarment.
However, if a disciplinary
panel rules against him, Mr. Kennedy is more likely to face a
reprimand or suspension, and perhaps an award of legal costs
Why Keep Judges on a
Prime Time Crime, April, 2005
Even in Canada's alleged
democracy, freedom of speech is still a right right? Well, sort
of, I guess, unless you are in the legal system and dare to
raise questions about the calibre and competency of those
running the show in the closed-shop system.
It is not just journalists or
victims wronged by our courts who criticize the judiciary in
Canada some lawyers actually dare to speak the truth, too,
with much more serious consequences for them than the
predictable letters of outrage and 'circle the wagons' responses
that usually follow any attack on our (in)justice system from
The roles that judges play,
and the political reasons of why some are appointed to levels
far beyond their incompetence, are legitimate targets that
should be open to public examination and discussion by anyone,
right? Well, sort of, I guess. Any rant from this corner or from
those such as former police officer Leo Knight and his
about the mollycoddling of the judiciary has little impact on
the honourable men and women who wear the robes. Yet when "one
of their own" attempts to shed more light into the murky depths,
all hell breaks loose.
Case in point is that of
Newfoundland lawyer Jerome Kennedy who now faces disbarment for
comments made about the sacrosanct judiciary back in 2003. Mr.
Kennedy, representing several wrongfully-convicted men, was
upset that an inquiry into the cases would not look into the
role that trial judges played in those convictions. He even went
so far as to maintain that some judges might be biased, and
(gasp!) "don't know what they are doing"; and he questioned the
politics that had helped to land them on the bench in the first
Well, that was something up
with which Newfoundland's Chief Justice would not put. His
Wonderfulness Derek Green complained to the law society (also
known as the cadré of lickspittle toadies), ands now Mr. Kennedy
faces charges of professional misconduct. That was his reward
for charging that some judges are guilty of you guessed it
Vancouver Sun columnist Peter
McKnight (not related to Leo, to my knowledge), wrote last month
about the plight of Mr. Kennedy, and compared the treatment of
this one minor Canadian dung-disturber to that of reformist
lawmakers in Iran who are jailed for the "offence" of
criticizing the judiciary.
Omigod! Canada is like Iran
that bastion of non-democracy surely you jest? Nope, surely it
is an accurate comparison when it comes to this issue. Mr.
McKnight cited other instances of maltreatment of lawyers who
dared to raise any questions about their "learned friends" on
He acknowledged that any
comments or opinions expressed by lawyers about the
administration of justice must be carefully and legitimately of
substance, and there is no argument here about that. But for the
system and the judges to bully and threaten any LLB who dares to
question their actions is not the kind of democracy that most of
us believe we have a right to expect in Canada.
Back off, your Honours, back