A judge in canada is nothing more than a lawyer with a minimum of 10 years experience. There is no special judge school to instill the wisdom of Solomon. If there were, I believe Justice Richard Schneider would have rethought his decision to file a $3 million libel suit against Q107 morning man John Derringer, who made some intemperate remarks criticizing the judge's decision back in May to sentence 20-year-old Yong Jun Kim to nine months' house arrest and community service for possessing and distributing child porn. A transcript of the offending comments filed in Schneider's statement of claim shows Derringer was so indignant about Schneider's decision that one would have thought the judge had sentenced the offender to house arrest at Derringer's home.
The transcript quotes Derringer as saying that Schneider is a "disgrace" to the justice system and society, and "as much as I would like to see it, I can't bring myself to hope that one day it is your kid who is doing what was performed on the videos in Yong Jun Kim's possession."
Before Schneider filed suit, Derringer had apologized on air, explaining that "although I remain outraged by the sentence that was given, I know Judge Schneider applied the governing law to the circumstances as presented. I did not mean to suggest anything improper at all."
I know very little about the specific facts of this case, but I do know Richard Schneider. He is one of the better appointments in recent years. It's ironic and regrettable that he would be singled out for ridicule or condemnation in a world filled with judicial mediocrity.
And like it or not, conditional sentences with house arrest have been routinely granted in child pornography cases that are devoid of elements of exploitation and large-scale distribution. Schneider was acting according to established precedent and authority.
Nonetheless, Judge Schneider should have thicker skin. No doubt, an attack on one's personal integrity can and should be combatted under the long arm of the law. I just have trouble when judges take flight from the comfy confines of the bench to wrestle with critics.
Although the current libel laws may permit a lawsuit in these circumstances, I've got a gnawing feeling that it is our constitutional right to expose public officials to ridicule and condemnation, as long as the attack pertains to professional activity and not personal and private behaviour.
It's virtually impossible to remove a judge from public office or cut a judge's pay. We give them honorary titles and stand when they enter the room. They can authorize intrusions into our homes and imprison us for life. So I think they should be able to take a bit of criticism, polite or profane. With all due respect, if you can't take the elevation, get off the fucking bench.
Although the criticism of judges is often ill-informed and misplaced, if critics like Derringer aren't allowed to caustically attack a judge's decision once in a while, we'd probably never even notice what our courts are doing.
When it comes to sensitive issues concerning the physical, psychological and sexual integrity of our children, there's a tendency to drift toward the hysterical that is fuelled by the media. The cycle of a moral panic is fairly transparent: The police or politicians hold a press conference announcing that Toronto's fast becoming a mecca for child porn distribution. It's always unclear whether the announcement is based on fact, but it nonetheless receives extensive media coverage. Then the media go out and carefully look for examples to support the flimsy thesis the state has promoted as official truth.
So Derringer finds a case in which an offender receives a lenient sentence and parades it around like Judge Schneider just wrote us all a one-way ticket to Sodom and Gomorrah.
Perhaps Derringer should be sued for wilfully promoting yet another moral panic, but this is not a cause of action recognized in law. The law does allow a person who has been blessed with security of tenure and all the trappings of prestige and power to sue an ill-informed lay person. I just don't see the point of this type of lawsuit unless the result would be a court order that journalists do better research before launching into intemperate tirades.
Alan Young is a professor of law and author of Justice Defiled: Perverts, Potheads, Serial Killers And Lawyers, published by Key Porter Books.