"Shame on you for criticizing [a] government official..."

"Maybe you are too detached from everyday life to see it..."

I recently received an email from a member of the public. The individual expressed frustration about statements from CBABC responding to deeply concerning comments made by a government official on a criminal case.

There has been an uptick of government officials commenting on justice system matters in a troubling manner. Recent examples include:

• Politicizing the issue of bail.
• Inferring that a sentence imposed in a criminal case was not appropriate and that judges lack sufficient training and education.
• Commenting on criminal cases in a manner that could lead to a perception that the prosecution service is not at arms-length from government.
• Indirectly criticizing defence counsel on a specific criminal matter and implying that the government will push for justice system changes in response.

These comments show a misunderstanding of, or worse, a disregard for principles of judicial independence, independence of the Bar, and prosecutorial independence and discretion. They also risk undermining public confidence in the justice system.

Lawyers have an obligation to contribute to greater public understanding of and respect for the legal system. This obligation includes defending the judiciary when it is the object of unjust criticism. As expected, the profession responded swiftly and appropriately to the problematic comments. In recent months, CBABC, the Law Society of BC, the Trial Lawyers Association of BC and others issued statements that were timely, forceful and articulate. Individual lawyers also provided informative quotes to the media and published educative and thoughtful opinion editorials.

The feedback CBABC received from members of the profession was supportive and appreciative. The feedback from members of the public, albeit small in number, not so much.

Comments by elected officials are generally intended to appeal to a broad spectrum of people and often politicize an issue. More specifically, their comments on justice system matters are often rooted in a false narrative that the system is broken. Or that the actors are self-interested or out of touch. Or that we should be angry or afraid.

Unsurprisingly, our task in responding to such comments is an uphill battle.

As lawyers, we are used to discussing complicated legal concepts and facts with judges, other lawyers and clients. Thus, we are typically dealing with people who have a similar or greater level of legal knowledge (in the case of judges or colleagues) or subject matter expertise (in the case of clients).

It’s a completely different circumstance when dealing with members of the public. Explaining concepts like prosecutorial discretion to someone with limited legal knowledge is a difficult task. Explaining these concepts in the context of an unpopular position is even more challenging. Nevertheless, to meet our obligation to educate members of the public, we must work on our ability to communicate with them in ways that they can relate to and understand. As President, it’s a skill I’ve been working on, with varying degrees of success.

Fortunately for most of us, our interactions with the public are not through statements or media interviews, but rather in conversations with family and friends. As lawyers, we can view these as opportunities to educate others on concepts like judicial independence — although perhaps not using that exact term! Equally important, we’ll learn about the concerns and fears that non-lawyers may have, so we can hopefully work to address them.

Not all of these interactions will be productive. For example, I never responded to the email that contained the quotes above. I did, however, receive another where the member of the public expressed forceful, but respectful, disagreement with CBABC. She concluded by saying she really needed to voice her concerns and thanked me for my time. I responded, and then she replied:

“After reading your email, I have a better understanding of why it would have been inappropriate for the AG to make such comments.”

One at a time.