Should Judges be Specialists?

Our own Moin Yahya was quoted extensively in today's Edmonton Journal on whether judges assigned to criminal cases (OK, the article refered to judges appointed to "criminal courts", but I'm trying to pose the issue a little more accurately than the Journal did) ought to have specialized during their years of practice in the criminal law.  He pointed out - I think correctly - that most criminal cases turn on issues of credibility, which can be resolved by anyone without such experience (or, for that matter, without legal training).  In the complexity department, most criminal cases pale in comparision to, say, causation issues in med-mal cases or general average calculation in maritime cases or almost any substantial issue in commercial-corporate cases that actually see the inside of a courtroom.  There are, of course, exceptions (particularly but not exclusively on the commercial crime side) but the Teskey case (which appears to have prompted the article) is not one of them.

It's a little disappointing to see in the article that some (one hopes few) members of the criminal bar have come to think that their area of the law is so precious that only they have the received wisdom to determine proper outcomes.  Shortly before I was called to the Bar of BC, my articling principal was appointed to the Supreme Court (of BC).  He had developed, over the years, a practice in criminal law.  When confronted with his first personal injury trial, during argument he had the candour/humility to advise counsel that he knew nothing about the "thin skull" rule and needed a refresher.  Now, this is just one case (as is Teskey) but, perhaps based on this event (and based on the criminal bar's logic), we ought to be appointing fewer criminal lawyers to the bench and more torts lawyers.  (What's more, most of us in the torts field can point to lots of decisions, including decisions from Alberta, which suggest that we actually need more torts experts on the bench.)

The converse view was, I thought, well put by Chief Justice Wachowich:  "experts" may be perceived, because of their past adversarial role as counsel, to have a predisposition favouring one side, be it the accused or the Crown.  (In fact, it may well be more than perception).  There is a strong tradition in Canada favouring generalist benches.  While I'm not entirely satisfied that it works well, I do think that such arguments needed to be accounted for by those who advocate appointing more specialists in any field or one appointed assigning them alone to hear cases in their field.

Above all, I think it is this statement from today's Edmonton Journal article that will likely raise eyebrows:

"In the end, Yahya suspects there is an element of envy when criminal lawyers complain about commercial and corporate lawyers becoming judges. 'I think it's just because they want to be judges themselves."'

Moin is, of course, speculating, but I think there's some basis for such speculation.  Many lawyers in Canada crave judicial appointment, and (aside from the opportunity to serve in another aspect of the legal system) for good reason:  it's well-paid, the job security's not too shabby and neither is the pension.  Furthermore, unlike retired federal politicians who are precluded by double-dipping rules from taking government work for a period of time after their careers end, retired judges have no such limitation.  (The benefits extended to Canadian judges in the name of "judicial independence" seems to have no temporal limits).   

Comments

[David Cheifetz]

"In the end, Yahya suspects there is an element of envy when criminal lawyers complain ..."

Given the recent guffuffle over the subject matter of a certain Maclean's article reviewing a recently published work of non-fiction, a cynic might ask if the adjective in the phrase "criminal lawyers" is redundant.

Of course, since I'm not that cynic, I'll simply make a rhetorical comment. I've yet to see in Robert Thornton's updated "Lexicon of Intentionally Ambiguous Recommendations" - here: >> http://www.amazon.ca/L-I-R-Intentionally-Ambiguous-Recommendations/dp/1402201397/ref=sr_1_1/701-2261583-7772352?ie=UTF8&s=books&qid=1186980748&sr=8-1 << (admitting that I've not finished reading it, at least in part because I've again given away my copy) any suggestion that "he / she will make an excellent criminal lawyer" should be considered ambiguous.