Critiquing the Judicial Narrative


In Abdulaali v Salih, 2017 ONSC 1609, Justice Pazaratz controversially wrote:

  1. The next time anyone at Legal Aid Ontario tells you they’re short of money, don’t believe it.  It can’t possibly be true.  Not if they’re funding cases like this.
  2. The facts are simple.  There are no complicated legal issues.  Hardly worth a written endorsement, really.
  3. But every now and then taxpayers ought to be told how their hard earned dollars are spent.
  4. The Applicant wife is 32 years old.  She came to Canada from Iraq five years ago.  She has never worked in this Country.  She receives monthly assistance from the government through the Ontario Disability Support Program.
  5. The Respondent husband is 43.  He came to Canada from Iraq seven years ago.  He has never worked in this Country.  He receives monthly assistance from the government through the Ontario Disability Support Program.
  6. They met in Canada.  They were married here on September 19, 2014.  They separated five months later on February 6, 2015.
  7. They have no children.  No jobs.  No income.  No property.  Nothing to divide.
  8. It should be a simple case.
  9. They appeared before me March 9, 2017 both wanting a Divorce.  Again, simple enough.    
  10. But the matter was contested because the Applicant wife also wanted a restraining order against her husband.  He opposed the request…

Many are saying that Justice Pazaratz crossed the line. First by commenting on the use of government resources. And second by implying that the parties were unworthy of legal aid. (I agree that Justice Pazaratz crossed the line on commenting on matters beyond the issues between the parties. )

But at what point does criticism of judicial commentary take on a chilling effect?

Regardless of political leanings, judges should be allowed to comment on the implicit premises their cases touch on.

The law does not operate in a vacuum. All decisions have political statements hiding beneath the surface. Whether it be assumptions about how property should be held, what equality means, how gender should be expressed, how government programs should be funded and so on. So to make the implicit explicit is to breath openness and honesty into judicial writing.

Judges should be honest about the real reasons behind their decisions.

(Views expressed in this blog are my own and do not reflect the views of any organization.)