CBRM Mayor John Morgan has convinced Jim Meek of the Chronicle-Herald, Wendy Bergfeldt of CBC-Cape Breton, and Gillian Cormier of AllNovaScotia.com that the Nova Scotia Barristers’ Society is trying to punish him for criticizing a judicial decision.
Nonsense. Anyone can criticize a judicial decision. Lawyers do it all the time. Even the most cursory review of Morgan’s comments makes it clear that his offense was not criticizing a decision but impugning the impartiality of Nova Scotia judges in general, and Supreme Justice John Murphy in particular.
Morgan’s comments came in an interview with CBC-Cape Breton’s Information Morning host Steve Sutherland on April 24, 2008, the morning after Murphy threw out a CBRM lawsuit against the province. The key quotes come about two minutes in:
We knew this was going to be a long process from the outset, and one of the challenges we face as we work through the Nova Scotia system is [that] virtually all of the justices—not to their discredit—but a reality is that all of them are part of the political structures that are endemic in the province of Nova Scotia. And as we move to justices outside the Nova Scotia system, you do get away from that internal provincial government system where judges are appointed by political parties. And this justice in particular had ties to the Conservative party—not to his discredit—but it’s a reality we were dealing with.
I would have preferred to have one of the Cape Breton justices dealing with the case rather than a Halifax one. But it was a challenge that we were facing from the outset. That having been said, you had to go through the first level of determination in order to get to the later determinations.
Sutherland asked if Morgan was suggesting political bias in the judge’s decision. “No, no,” said Morgan, “I don’t mean to suggest that.” But of course, that’s exactly what he suggested:
I mean everybody involved in the judicial process in Nova Scotia gets there because, ah, or principally they have ties to political parties in political structures, and so they are not tree shakers, I guess is the best way to describe it. They are there because they are for the most part a part of the establishment. So it is difficult to get a Nova Scotia judge, I think, to arrive at a different conclusion than the one we’ve arrived at.
This is not criticism of a decision, it’s accusation of judicial bias—a clear affront to a lawyer’s professional obligation. It’s also outrageous. Murphy is widely regarded as an excellent judge, and there exists not a speck of evidence to suggest he trims his judicial sails to political winds. It’s also cowardly on Morgan’s part because, as a judge, Murphy cannot fight back.
One can reasonably argue that the Barristers’ Society ought to make an exception for lawyers who also happen to be politicians, allowing them to impugn the integrity of the courts in pursuit of their political agenda. Notwithstanding the shameful content of Morgan’s comments, I’m inclined to think they should. Freedom of political speech is such an overriding value in a free society, it ought to trump the equally valid but less critical principle of a lawyer’s obligation to treat courts with respect.
But let’s not get into high dudgeon over the pretense that Morgan was merely using colorful language to take issue with a decision.
[Update] The Contrarian Research Bureau confirms that John D. Murphy, whom Morgan accuses of Conservative Party ties and consequent reluctance to decide cases contrary to the wishes of the MacDonald government, was named to the Supreme Court on March 2, 2001 by Jean Chretien, a Prime Minister who has never been accused of Conservative Party ties.
The merits of His Worship’s equalization lawsuit (which was also rejected by unanimous decision of the Appeal Court) are also worthy of comment, but that’s for another day.