Judge's actions left door open for appeal

Lots of people make mistakes at work, but judges are rarely subjected to disciplinary measures no matter what the cost of their errors

By Daphne Bramham, Vancouver Sun
June 29, 2009

We all make mistakes; we're only human. But we expect more of some people in our society -- judges, for one.

The bar must be set higher for them since the consequences of their decisions have more serious effects on people's lives and the public purse than most others.

And what we especially don't expect is that they will make such glaring errors that a serial killer's conviction could be overturned or that their decision is so off-base that both the Crown and defence appeal.

But that's what B.C. Supreme Court Justice James Williams did. Because of his errors, Robert "Willie" Pickton will get a hearing in the Supreme Court of Canada and a chance for a retrial.

This is a sorry chapter in Canada's biggest mass murder trial -- a grisly, sordid case.

One of three Court of Appeal justices who reviewed the case said Williams' mistake in his charge to the jury was inexcusable. Judge Ian Donald said Williams failed to properly instruct jurors on the law of aiding and abetting a crime and how it might apply in this case.

"This was an error of law," Donald wrote in his dissenting opinion. "The failure to instruct created a miscarriage of justice."

That's not the only mistake Williams made. All three appellate court judges said Williams was wrong to sever six of the 26 cases for trial.

That decision's legacy is that 20 families of murdered women may never get the justice they seek unless the Supreme Court orders a retrial.

Throughout the trial, the judge reportedly did a number of unusual things. After week 23, a story in The Globe and Mail noted Williams' "unusual state-of-the-nation address" to the jury when -- among other things -- he gave them a two-week vacation during the 11 months of hearings.

Another unprecedented decision was to have his law clerk, robed and sitting close by him in court. It apparently didn't help any.

Although this was one of the biggest trials in Canadian history, Williams was a relative rookie with only three years experience on the bench.

He took over the Pickton case a few days into the pre-trial hearings after the other judge suddenly found he had a scheduling conflict.

However, he'd had big-trial experience from the other side. He was a prosecutor in the case of Reena Virk, a Victoria teen who was beaten and killed by two other teens. He was defence lawyer for hockey star Marty McSorley, who was charged with the on-ice assault on former Canucks player Donald Brashear.

Judges are not oracles, as Chief Justice Beverly McLachlin of the Supreme Court of Canada has said. Instead, they are men and women with legal training, appointed and well-paid to sit in judgment until they are 75 years old.

But unlike most people who mess up at work, they are rarely subject to disciplinary measures.

"In fairness, the conduct of a judge should not be measured in the context of a complaint arising out of a single proceeding, but rather against a wider test of performance."

That's what former B.C. Court of Appeal chief justice Allan McEachern said in a speech given while he was chairman of the Canadian Judicial Council.

He noted the difficulties of disciplining judges. Appointed either by the provincial or federal government, they can only be removed by the government.

Still McEachern argued against anything short of removal or anything more severe than review by judicial councils, which are limited (in his words) to expressing disapproval in words that range from "unfortunate," "unwise," "inappropriate," or "in some very few cases, something stronger."

Anything in between -- suspensions or sanctions -- would undermine the authority of the court and judge's independence, he said.

But from the beginning, almost everything about the Pickton case has undermined people's faith in the judicial system.

The victims were women who had no faith in the protection of police or courts. Survival sex workers and drug addicts rarely get a fair hearing from them.

The families can't help but distrust a system so callous that it took years before anyone would even take their reports of missing mothers, daughters and sisters.

That fact that Williams chose to hear only six of 26 cases only further damaged what little trust some had that justice might ever be done.

I'm sure Justice Williams is sorry for his mistake. And maybe I can even accept that public humiliation is as good a punishment as any.

But it's absurd to think that disciplining him-- even removing him from the bench -- would make things worse.

dbramham@vancouversun.com

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