A View From the Bench with Madame Justice Ellen Picard
By Anubhav Chaitanya
On November 1st of this year , Madame Justice Ellen Picard spoke to law students about her experiences as a justice on the Court of Appeal of Alberta. Justice Picard is on judicial leave in our faculty until mid-December. Prior to becoming a judge, Justice Picard was a professor at the University of Alberta for fifteen years, and in 1975 she started the Health Law Institute at the Faculty of Law. She has served as a judge for fifteen years, starting on the Court of Queen's Bench before joining the Court of Appeal.
Here's what we talked about.
© 2001-2002 Anubhav Chaitanya
- How do judges on the Court of Appeal do their work?
After the factums and everything else that needs to be filed have been filed, the information is given to the panel of judges hearing the appeal. The panel is set up at random, usually consisting of three or five judges. The panel judges' legal counsel and the articling students summarize and brief the case information for the judges.
The panel usually has a discussion before hearing the case. We play Devil's Advocate with one another so we can demonstrate our analysis to one another. The chair of the panel (usually the most senior judge) determines whether in-house research should be done by the judges before hearing the appeal. Judges today prepare more prior to hearing a case than in the past. Considering how complicated the law is today, this preparation allows judges to be more efficient in handing out their judgments.
- In this extensive preparation, is there not a chance for a judge to develop a bias before hearing the appeal?
The concern about bias is always there. A judge has to be constantly aware of that. You have to know yourself, and be honest with yourself. Be prepared to discuss this bias with colleagues and, if appropriate, a friend that you trust. A question I ask myself is: In the end, no matter what I think about my bias, how does it look to the public if I were a part of the panel? That is why for my first three years as an appeal judge, I did not sit on any cases concerning the U. of A. After fifteen years, the connection is gone.
- How do judges come to a decision?
Amongst the panel, the chair usually speaks first, saying the appeal should be allowed or dismissed based on his or her opinion. A judge may dissent but, typically, will look at the majority draft and consider it first. Although the articling students are often used to prepare draft judgments, I try to do my own first draft as I feel that's my job.
We do have difficulties amongst ourselves when trying to reach a decision, but it is the sort of exchange that is healthy. There is very good comradery amongst the judges.
- How does a trial judge feel when a decision is changed?
Some are professional, but underneath, most are mad. They work so hard on a case, go over all the possibilities before reaching judgment, and then it may seem that all is for naught. No judge likes having his or her judgment reversed or modified, but all accept it.
- How do you feel when you have to give a judgment that you feel is not fair or just?
Sometimes, I come to the end of an appeal, I know what I have to do, but I hate it. I want to see the victim succeed but I have to follow the law. Occasionally a judge will do what he or she feels is right, expecting the judgment to get reversed on appeal.
- The biggest perk of being a Court of Appeal judge?
The opportunity to work with the law. The ability to make law, change law, and describe law.
- The biggest drawback?
The responsibility, the workload. I feel the weight. As a judge, you are making decisions that are changing people's lives. There are huge amounts of reading before a judgment can be reached. Writing judgments is more difficult than any work I did as an academic.
- Your favorite course as a law student?
Torts, because it's about people and actions.
- Your least favorite course as a law student?
Some days in real property were okay, but honestly I enjoyed them all.
- What is the best way of becoming a judge today?
You have to apply, obviously, but having a career in practice or academic law where you can show you have made a contribution to the profession and to the people. On top of that, getting involved with community work and student organizations is helpful as well.
- What is the one thing a person should ask themselves before considering becoming a judge?
It's a lonely life. Are you prepared to accept you are to some extent segregated from others in the legal community? You are not segregated from the ordinary community, such as your neighbours and friends. I am talking about the legal community. People recognize a judge as meriting a level of respect. This is not a bad thing but it may create a barrier to personal relationships at first. Nonetheless, it is important to recognize that respect for the position of judge is important. Judges must act accordingly.
- Being an authority on the subject, what is your opinion on the following famous quotes concerning the law:
- Plato: "What I say is that 'just' or 'right' means nothing but what it is in the interest of the stronger party."
- Arnold Bennett: "The price of justice is eternal publicity."
It can be.
- John Mortimer: "No brilliance is needed in the law. Nothing but common sense, and relatively clean fingernails."
Hmmm, Interesting. Brilliance helps in the proper and necessary development of the law. The leaders have more than common sense. These words by Mortimer are just a basic requirement.
Opinions expressed in this publication are those of the writers or content producers and not
necessarily those of the publishers. Opinions and articles are not official opinions of the
Faculty of Law nor the University of Alberta unless otherwise stated.
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