A Few Comments about Judges
The family courthouse at 47 Sheppard Avenue East, Toronto, is a busy courthouse. It houses many courtrooms that try family and children’s aid cases which fall under the umbrella of the Ontario Court of Justice (Family Court). I was there on a first appearance matter regarding a child protection case involving one of my clients whose two children were apprehended by the local children’s aid society. My client was asking if the judge who was going to preside over the first appearance temporary care and custody motion is biased. I told my client that most judges are fair and reasonable, which is the truth, but sometimes judges render wrong decisions. That is why appeal courts are there to correct these errors.
The Element of unpredictability
Judges have been objects of study for decades, but there has been an explosion in recent years of empirical research about how judges decide cases. The bottom line is that Judges are like anyone else – they differ in their approach at work, can be assessed in a multitude of ways, and do not perform in isolation.
One of the ways that determine how a judge will decide a particular case is the element of what is known as "a reasonable apprehension of bias", which in turn somehow reduces the element of unpredictability. Let me illustrate this by an example.
On April 9, 2013, three distinguished judges of the Ontario Court of Appeal, the highest Court in the Province of Ontario, were listening argument concerning the appeal of two persons who were convicted of conspiracy to produce marijuana for the purpose of trafficking. On August 26, 2011, the judge who presided over the trial without a jury convicted these two accused, John Huang, and Ying Huang. John Huang was sentenced to four and one-half years’ imprisonment, after six months’ credit for pre-sentence custody and restrictive bail conditions. (see note 1 below for the case citation)
John Huang (the appellant) appealed from his convictions. His principal ground of appeal was that the trial judge’s conduct during the trial; in particular, his intervention during the Crown’s cross-examination of the appellant, gave rise to a reasonable apprehension of bias and undermined the appearance of fairness in this case.
The appeal judges agreed that the trial judge’s impugned comments gave rise to a reasonable apprehension of bias that fatally compromised trial fairness. They found that there was a miscarriage of justice and a new trial is required.
The charges against the appellant arose in connection with his role as a real estate agent for the purchasers of several properties in eastern Ontario that were used as the locations of marijuana grow operations. The Crown’s theory was that the appellant, using his position as a realtor, acted in concert with others to acquire the relevant properties for the purpose of producing large quantities of marijuana plants. Alternatively, the Crown maintained that the appellant aided or abetted others to produce the marijuana plants. The appellant claimed that he was an innocent dupe. The appellant was tried before a judge alone, together with his co-accused, Ying Huang. The Crown maintained that the appellant and Ying Huang were co-conspirators, and that the appellant had represented Ying Huang on the purchase of a property that was used for a marijuana grow operation.
During his examination-in-chief, the appellant agreed that he had acted as the realtor for the purchaser of this property. However, he testified that the buyer was Yan Huang, not Ying Huang. He said that he never met Ying Huang until after his arrest and that he had only met Yan Huang once, when he first showed her the Hickory Grove property. The Crown countered that Ying Huang had impersonated Yan Huang, and that Ying Huang was the real purchaser of the Hickory Grove residence.
During the Crown’s cross-examination of the appellant, Crown counsel challenged the appellant’s assertion that he had only met Yan Huang once, in February 2009, when he first showed her the Hickory Grove property for potential purchase. In doing so, counsel confronted the appellant with a mutual release document regarding the Hickory Grove property that appeared to have been signed by Yan Huang and witnessed by the appellant in mid-March 2009.
At this point in the cross-examination, the following exchange took place:
Q. Did you ever see Yan Huang after that?
Q. Yan Huang, Peng Zeng’s wife, did you ever see her after that first trip?
Q. I wonder if you could turn to page 15 of Mr. McKinney’s file...Do you have page 15 there?
Q. This is the mutual release.
A. Yes, I, I did, made it.
Q. Pardon me?
A. I made this, ah, ah, mutual release paper.
Q. And it’s signed March the 12th, ’09 by Yan Huang and you witnessed her signature?
A. Yes, should be her signature.
Q. But you told me you only saw her once, at the property?
Q. And that was early February?
Q. This is March, March 12th?
A. Yes. I remember I made this paper. I think my wife took the paper and asked her to sign it.
Q. But that’s your signature, isn’t it, Mr. Huang because you witnessed your boss’s signature right below it?
Q. That is your signature, isn’t it?
Q. And this is an important document, isn’t...
Q. I believe you told us yesterday that this was getting out of a real estate deal and for you that means losing commission which in this case is about $6,500.00?
Q. This document is worth $6,500.00 to you?
Q. You must have seen her a second time?
Q. You didn’t?
A. I never, I never saw her again. There was, there were signatures several times, other times all my wife who brought the paper and ask her to sign them.
Q. But Mr. Huang, if we look at page 15, you are signing this document saying that you witnessed Yan Huang sign it on March the 12th?
Q. Is that false?
A. I don’t think it is false.
Q. Well, did you or did you not...
THE COURT: I’m going to have you stop right there for a minute. Do you understand what perjury is, Sir? Do you want to take a minute with your counsel, and she will instruct you what perjury is and that usually it incorporates about a year in custody?
THE WITNESS: I don’t think it’s, it’s false.
THE COURT: Counsel is standing. Just a minute. Yes? Do you want to take a minute and speak to him about what perjury is about?
COUNSEL FOR THE ACCUSED: Well, Your Honour, with all due respect, Your Honour, I don’t think that it is proper for Your Honour to interject and caution him about perjury at a point when he is trying to explain an answer. It hasn’t...
THE COURT: Either he is present, or he is not present. He has testified that he didn’t witness the signature, whereas the document he signed says he did.
COUNSEL FOR THE ACCUSED: Well, the document itself...
THE COURT: Either he is there, or he is not there, all right.
COUNSEL FOR THE ACCUSED: I think he has already said he wasn’t there.
THE COURT: All right, you don’t have to caution him about perjury, counsel. Thank you.
COUNSEL FOR THE ACCUSED: Well, Your Honour, it’s not whether I should caution him or not about perjury, but I have concerns that if Your Honour believes that we are entering into perjurious evidence, you are obviously the Trier of fact and I have concerns about this trial, frankly. If Your Honour has those concerns, then...
THE COURT: I have concerns, Counsel. I’ll tell you that right now, but he may be able to explain them. I just wanted to make sure that he didn’t get himself entrapped into something that might cause some other charges. That’s all I’m saying, all right.
COUNSEL FOR THE ACCUSED: Okay, okay. I don’t think that...
THE COURT: Do you want to counsel him with respect to what perjury means? That’s all.
COUNSEL FOR THE ACCUSED: No I don’t. I don’t think that...
THE COURT: That’s all I’m looking for, all right.
COUNSEL FOR THE ACCUSED: Okay.
THE COURT: I just want to make sure he doesn’t get himself in a real jam here.
COUNSEL FOR THE ACCUSED: Okay, understood, Your Honour.
THE COURT: All right. Thank you. Go ahead, Counsel.
THE CROWN: Mr. Huang, did you sign this document having witnessed Yan Huang’s signature?
A. Yes, I signed the paper.
Q. Did you witness Yan Huang sign it?
The appellant argued on appeal that this interjection by the trial judge reveals that he had pre-judged the appellant’s credibility before the appellant had been given an opportunity to explain himself and before all the evidence and the submissions of counsel had been heard. The trial judge’s remarks, the appellant said, were improper and gave rise to a reasonable apprehension of bias.
The Court of Appeal agreed and concluded that a miscarriage of justice occurred regarding both accused, allowed the appeals, set aside the convictions, and ordered a new trial for both appellants.
The Court of appeal also made a final observation; it stated that that was the second time in less than one year that the Court of Appeal had allowed appeals relating to judgments of the same trial judge based on reasonable apprehension of bias. In both instances, the perception of bias arose because of improper and unwarranted interventions by the trial judge during the examination of witnesses. The three judges emphasized that the judges, at bottom, are listeners and that it is counsel’s job - not the trial judge’s - to explore inconsistencies in a witness’ testimony.
Just because this judge behaved the way he did, do not assume, however, that other judges would do the same. I had a situation where every lawyer was telling me that my client would be convicted on the serious charges he was facing because the trial judge (not the judge mentioned above) was known as a "judge who convicts". Despite these warnings, I pressed on – not that I had any choice on the matter because the judge was assigned with this case and I could not find a justifiable way to avoid this judge. At the end of a seven-day trial, the trial judge rendered a decision acquitting the client of all counts. Had he been convicted he would have been sentenced to at least five years in jail. What helped in this case were meticulous preparation, good presentation, and extreme civility without appearing weak. During the trial, I totally ignored the warnings of other counsel and concentrated on the merits of my case. The moral of the day is that what counts at the end is the totality of the evidence – not the inclination of one judge.
Also remember that some judges are incredibly good at wearing a "Poker Face", and you will never know what the judge thinks inside.
We can take it as given that some judges can be influenced more readily than other judges by the following circumstances:
The Attribution error
Known as the "attribution error", this is a tendency to jump to conclusions based on the person’s behaviour either during the trial or on the events that preceded it. Judges, as most of us, many times ignore your surroundings, your circumstances and series of events that had let you to do what you had done. As the mind struggles to make sense of the world, we are always searching for explanations as to why people are behaving the way they do. Our brains love to take shortcuts and fail to take notice of other events and extenuating circumstances that point to the power of the situation. Judges too sometimes commit the fundamental attribution error by believing the plaintiff’s or defendant’s actions derive from the sort of a person he/she is and have nothing to do with the setting. Thus, knowing this tendency will assist you in presenting yourself to the court in a likeable manner projecting respect for the rights of others and elaborating in a most persuasive way possible on the special and extenuating circumstances that led to your actions.
Their ego tells them that their opinions are the result of years of experience and rational, objective analysis.
Many judges have big egos. They were lawyers before they became judges and had to deal with all sorts of situations. Their egos served them well in resolving issues and managing the intricacies of their legal practices. After they read the material (yours and the opponent’s) and before you have a chance to make any submissions on the matter, some judges will have made up their minds about the judgment they would render. Thus, in giving reasons, they would seek out information in the pleadings and other evidence that would confirm their beliefs and avoid contradictory evidence and opinions or discount such contradictory evidence and opinions and find faults with them. It is incumbent upon you, the party litigant, to present your pleadings and your evidence in the most persuasive way possible to avoid this element of unpredictability. You can do this in many ways, one of which is the thorough preparation of your witnesses.
Familiar situations and predictability
This is not necessarily a negative or positive attitude, but it is part of life’s realities. During their careers, judges hear and decide many cases. Many of these cases have a familiar theme, as for example, parents having their children apprehended by the local child welfare agency because of allegations of drug or alcohol abuse, or mental health concerns. Many of these cases have a familiar theme: Any time someone will quit something cold turkey, the brain will make a desperate effort to return to the old habit. Although the onus falls on the agency to prove child neglect, these judges, in their minds, have this onus reversed because they learned from experience of trying so many cases with similar facts that point to a high probability of many of these parents being unable to master the resources or resolve their issues that would propel them to be better parents and enable them to take care of their children. And yet, in many situations, parents do come around and manage to beat the odds against them. The adage "I’ll believe it when I see it" applies. Knowing this tendency will propel you to demonstrate by deeds that the progress in your case is material and long lasting and that the probability of relapsing is minimized with supports in place. That is why preparation of your case – and doing what is expected of you – is one of the most important aspects of winning.
Appearance and words forming impressions
Judges and juries are supposed to judge cases based on facts – not impressions. And yet, many times we hear stories of commentators telling people how they should dress for court. Appearances can be deceiving but we allow them to deceive us! Judges are no exception. Judges thoughts change based on the words witnesses conjure. Using words as "hard", "cold", "slow", "mean", "ridiculous", "terrible", "mean", "awful" can invoke a corresponding sensation.
Most Judges cannot read your mind or your thoughts
Judges are busy people. They are inundated with many cases with numerous issues and many participants. They expect the people who appear before them to articulate their positions in a succinct and clear way. Many read the pleadings and know ahead of time what your positions are. But if your pleadings are sloppy or if your ‘story’ is not in those pleadings, they cannot read your mind and your thoughts.
Judges learn from experience. There is no secret recipe for good decision making. Is the evidence there? Is the evidence circumstantial? Is the evidence consistent with a particular conclusion and inconsistent with any other reasonable explanation?
Judges know they do not need to know everything there is to make a good decision. There is no universal solution to a good decision making. The law has evolved through the years of trial and error and certain principles are proven to be more time-tested as more sound than other.
If you want the judge to know about the circumstances of your case, is incumbent upon you to mention it in your pleadings and in your argument. If you want a particular outcome, you will have to ask for it. Is interesting but happens many times, when people speak to the judge and do not articulate what they want. Spell out what you want.
WHAT JUDGES KNOW ABOUT HUMAN NATURE AND HOW THIS CAN AFFECT YOUR CASE
Judges have learned from different cues when assessing someone`s credibility. They look for so called predictable patterns and weight the evidence stepping back and looking at the totality of the evidence. When the case is considered as a whole, then they can make the best possible decision. The term used in civil cases is `on the balance of probabilities. ` In criminal cases, the onus is on the prosecution to prove the commission of an offence `beyond a reasonable doubt`.
In trying cases, judges have learned that every action is guided by a desire or intention. That is why, for example, in criminal cases intention is very important. The best judges have a high ability of common sense, the ability to see the people before them as they really are; they do not dilute themselves of seeing things that are simply not there. Besides, making findings not supported by evidence is a good ground for an appeal. They see the situation as it is; they understand the facts of the situation and they act on them.
There are certain indisputable principles the way people really behave. Legal disputes that result in lawsuits are expressions of human behaviour rooted in behavioural and cognitive psychology. I began studying court decisions on a variety of issues and represented hundreds of people. What is pervasive on these decisions is that more than anything else judges understand that everything people do is driven toward achieving something; that is why motives are important. People want to improve their lives; people are ambitious. It is normal and natural to desire more. Thus, individual ambition is neither bad nor good. It is the way people pursue their ambition that may bring them in conflict with the rights of others and in conflict with the law. That is why there are limitations imposed by law and by societal norms.
Many sound court judgements are balanced pronouncements and are based on what I call the three D`s theory of human behaviour. The first `D` stands for `Dissatisfaction`. People end up in courts because they feel dissatisfied with the status quo or a particular situation. For example, parents go to court to get their children back into their care and custody because they are dissatisfied with the child protection agency apprehending their children. The second `D` stands for `Desire`. People desire a particular outcome. In this example, they want their children back. The third `D` stands for `Decision`. The third `D` is the crucial element of the three `D`s and has to do with the actions people will take – and the price they would have to pay – to reach a desired outcome.
People progress from the first `D` to the third `D` if they feel that they have the means and the capacity to do something to change their situation. All three `D`s` would have to be present for people to end up in court seeking a particular redress. For, example, if they are dissatisfied about a particular situation but have no desire to change it – or they can tolerate it to a certain degree – they would not progress to the third `D`. Or, they may be dissatisfied (the first `D`), they have a desire for a certain outcome (the second `D`), but they cannot make a decision because, say, the degree of unpredictability is very high, or the cost of litigation is very high in proportion to the desired outcome, or the stand to lose more than they hope to gain, or they cannot possibly find themselves capable of doing the things that are required of them in order to effect a desired outcome, they will not progress to the third `D`.
The thee `D`s` apply in other areas as well. When rendering judgments, for example, the three `D`s` can influence a judge`s decision in terms of ‘fairness’ based on the standard of a ‘reasonable’ person. For example, if a judgment contains terms that people who are affected by it perceive as plainly unenforceable, unreasonable, or too strict, judges know that most people will not comply with its terms, or – even if they wish to comply – they find it impossible to do so due to their situation and circumstances. If such is the case, we have what I call `hopelessness` and the person will not do much to improve himself or herself. In child protection or CAS cases, for example, where I happen to have more exposure to as a defence lawyer representing parents in Toronto, most judges will stay away from imposing too strict terms of supervision on parents as invariably strict terms will not work, and the parents will give up. In the same vein, judges know that outside community services, counselling and treatment are so important in ensuring that a particular decision will have a chance of being implemented to the point that it will have a lasting and beneficial effect.
But there will be situations where unreasonable orders can be granted if, for example, a person fails to appear in court or fails to file the necessary documents (such as disclosure) required of him. The judge, although perfectly capable of using common sense, may succumb to pressure from the opposing party to grant such an order, especially if the person affected by it is not present to make any submissions or his submissions are short of persuasive quality for lack of sophistication. I have seen this happening a lot in family cases where an unrepresented parent is pinned with an obligation to pay a large sum in child support based on ‘imputed` income. When time comes to enforce the order, the party in whose favour the order is made may discover that she cannot collect because the payor cannot afford to pay. Sanctions may ensue which will take the parties to one more round of litigation until someone realizes that the original order cannot be practically enforced. To avoid being entangled in this undesirable web of consequences, ensure that what is expected of you is realistic and doable and that you do your part by providing at a minimum what is expected of you. If the other side is unrealistic or uses questionable tactics by demanding every bit of paper and information to delay the case or harass you, the experienced judge will step in and put a break to these tactics. If you decide to challenge the other side and not just allow the process to drift along, Judges who sit on so called ‘Motions’ can deal with these kinds of tactics. This takes us to the concept of ‘Minimum Effort’.
Judges also know that people – especially those dragged to court as defendants or respondents – will do everything possible to conserve energy. The path of least resistance and the exertion of minimum effort is the name of the game here. All human beings are inherently lazy. Laziness is not necessarily a bad attribute. If it is manifested in better ways and methods or faster processes, laziness is beneficial because it propels progress. But if laziness prevents you, for example, from doing your part of the bargain will invariably lead you to shortcuts with unforeseen consequences. Judges can forgive a person if he is lazy with certain things. But judges take notice of habitually lazy people who have no regard for punctuality, fail to file on time despite repeated requests for extension of time, or fail to do what is expected of them. The exertion of minimum effort makes people want things without considering the price they would have to pay to get it. Violations of the law are rampant due to this attribute alone, and the judges take notice of that. Laziness can cause parents problems in Children’s Aid, or CAS cases, as, for example, the parents who fail to get up on time to prepare their children for school or to take them to their doctors’ appointments. You can be forgiven for occasional transgressions, but if your laziness causes harm or injury to children, judges will not hesitate to hold you responsible for these ‘neglects’.
Another concept is greediness. Judges also are too familiar with people who are greedy to a point that they would not accept any offer to settle their case. Naturally, people, when given a choice, will chose more than less. People end up suing because they believe they are entitled to the relief they are seeking. It is important to recognize that in Family Law cases people are not being labeled greedy by pursuing what is rightfully theirs to have. Their desire for more applies to all human desires. Greediness makes people improve their performance and become better persons or achieve wealth and fame. People are inherently greedy. That is a fact of life. Good judges do not punish people for being greedy. For example, people come to court because they hope to get a better spousal support settlement than what is offered to them. However, you are not forgiven for being greedy if at the end up dragging others to court seeking to affect a result that proved to be unreasonable or you got less than that originally offered to you out of court. You have won your case, but the judge will have the discretion to penalize you in costs. Yes, greediness is inherently human, and you should not make any excused for it! Be aware, however, that if you go too far with your expectations and demands with your support claim, the judge will not hesitate to mention it – and make you pay for it!
Related to the concept of greed is the concept of ‘Immediate Gratification’. Courts recognize that people prefer immediate gratification instead of delayed gratification. Judges know that if people give up something now, they expect to have something better in the future. You will not be penalized for seeking interest on your money if it took too long to have your money back, for example. People are inherently impatient, which includes the judges. People appear before them seeking instant solutions that sometimes judges cannot deliver. To avoid disappointment with the courts and the ‘legal system’ in general learn to exercise self-control and self-mastery to delayed gratification. Being impatient with your expectations and demands may dissuade a judge from giving you what you are asking for just to teach you to wait until the time is right. For example, removing your children from their home and taking them away to some other country, state, or province because you are sick and tired of the other parent may backfire if you bring a Motion for custody of the children. You want immediate gratification, but the law does not see it that way.
Who would have thought that vanity will feature prominently in legal writings, but it does. It is disguised in the form of egotistical and self-centred actions, expressions, and desires. All of us are vain one way or another. Judges are not immune! They hate to be undermined or disrespected. They dislike litigants who are equally vain, but they seldom forgive them for that! You can never hope to win a battle of words with the judge, even if you are right and he is wrong. The best thing to do under the circumstances is to swallow your pride and listen. If the judge makes a decision you think is wrong, you can politely and respectfully disagree and hope for a better result on an appeal. On this topic, it is perfectly proper to register your objection to some uncalled-for remark or undeserved criticism from the judge. It is also quite proper to air your objection to a point that the judge raises and finds against you and you think that is not fair or not supported by the evidence. Judges are not immune to human error and judging cases is not a scientific quest for the absolute truth. This equally applies to child protection and family law cases. As a family lawyer, I have seen this happening many times.
Like lawyers, judges read a lot! They are supposed to know more than the average person about law, legal principles, and procedures. But - as the rest of us to a greater or lesser degree - they are still ignorant. Why is that? Simply put, they can never know everything there is to know about a subject matter, even if they know and apply the rules with admirable knowledge and expertise, and even if they can site cases and use legal precedent to guide their decisions. They can also use techniques to distinguish one case from another and find ways to reach a decision that they feel is the soundest based on the known facts as they find them to exist. Many disputes-especially in family and CAS cases- involve situations that call for expert opinion and expert evidence to assist the court. But even experts can disagree amongst themselves.
You will never know how a judge will decide your case. Surprises are known to happen.
1. R. v. Huang 2013 ONCA 240 (CanLII) from https://www.canlii.org/en/on/onca/doc/2013/2013onca240/2013onca240.html
© Andreas Solomos, Barrister & Solicitor. All rights reserved.