Can a judge go too far?

Did a family court judge in Hamilton overstep the proper boundaries of his position when he made extensive remarks in a decision ostensibly about a woman’s application for a restraining order against her husband?

As reported by the Toronto Star at the time, Justice Pazaratz took the opportunity to make highly critical comments about Legal Aid Ontario (LAO) because it had provided both parties with legal aid certificates when he felt this was unwarranted. He also made extensive critical comments about the two litigants who are immigrants to Canada and who receive financial assistance from the Ontario Disability Support Program.

The wife had raised the issue of domestic abuse and sought a restraining order when she applied for a divorce. While Justice Pazaratz claims he takes the issue of domestic abuse seriously, his criticism of LAO for issuing a certificate – for which the woman was fully qualified – would seem to belie this claim.

Judgemental judges

University of Calgary law professor Alice Wooley commented on this case in Slaw magazine in March.  In her well-argued opinion piece, she points out that judges do not have a mandate to comment on issues of morality outside the law or public policy. She analyzes Justice Pazaratz’s decision in some detail, asking whether his comments exceeded his mandate to the extent that they constitute misconduct.

Wooley looks at the endorsement written by Justice Pazaratz (who is well-known for his colourful writing style) and notes key problems with it. Ultimately, even though she is highly critical of his comments and notes that he comes close to misconduct for the “contempt with which he treated the poor, racialized and vulnerable parties who appeared before him,” she concludes that his decision is a mistake rather than misconduct.

She ends her article, which is a must-read for anyone engaged with family or criminal court, with these comments:

I am pleading with Justice Pazaratz and other judges to be more restrained in their ambitions and more careful in their reasons. To remember that it is enough to be a judge. To decide what happened. To analyze, identify and interpret the law. To apply the law to the facts.

Read Alice Wooley in Slaw, “Judgemental Judges”

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