Crumbling Judges: On Humanity, Stress and Mortality @BCProvCourt

"I miss the good old days", said a senior Provincial Court of BC judge to me, "nowadays, I have to bring my A game. Everyday. Don't get me wrong Dom I love what I do, but some days sitting can be a challenge." In my meetings with judges on what can be done to help self-represented litigants prepare for their conferences and trials, our conversations sometimes have taken us to a personal level.

Penning the Crumbling Lawyers last May 2017 was not easy but was necessary to support @LawSocietyofBC laudable initiative to provide support to its members in order to better protect the public; and I had put off writing about the Crumbling Judges for the same reasons. I recently came across R. v. Colpitts, 2017 NSSC 200 which involved 2 self-represented litigants, Judge Kevin Coady in dismissing an Application for Leave for mistrial, conveyed what had to be a difficult recognition of how his health had impacted this case:

"[21] Judges are human beings.  We are not immune to the physical and mental demands inherent to long trials. Those demands are heightened where, as here, the evidence is of a highly complex and technical nature, the trial involves self-represented litigants, and the proceeding spans a period of years.  There may be occasions where the stresses of a long trial adversely impact the health of one or more of the participants and a recess is necessary to resolve those issues.  The fact that a proceeding is interrupted for a period of time to address a trial judge’s health concern – whether triggered by trial-related stressors or other factors entirely – does not, without more, create a presumption that previous rulings were unfairly influenced by that health issue."

More,

Sitting as a judge is stressful. The tsunami of changes lapping at the shores of the judicial court steps is unrelenting; I am hearing of an increase in afflictions from cancer to Alzeimer's disease. These leaves of absence, whether short or long, result in judges covering for their colleagues; still judges are still expected to meet their goal of releasing reasons for judgment within 6 months.

Supreme Court of Canada Chief Justice McLachlin recognized this when she spoke last Canadian Association of Provincial Court Judges Conference last September 29, 2016. (She was very gracious to send me a copy of her remarks for this blog.)

"The job has the usual stressors all judges experience. A distinct lack of positive feedback, for one – you only get feedback when you get overturned or criticized. In addition to the usual judicial stressors, Provincial Court judges have their own set of unique pressures – crushing case-loads; shortage of support resources; soul-searing successions of heart-breaking stories; the sinking feeling that the person they saw six-months ago is back before them on the same charge."

Retired Chief Judge Baird shared her personal views:

"My perspective is a little dated, and there may be more initiatives now to deal with the mental health of judicial officers on the provincial court bench, since I have left. 

When I was involved in judicial administration, the issue of mental health support was a fledgling topic. Thanks to the candour and initiative of Justice Patrick LeSage who presided over the case of Paul Bernardo, there was recognition of the toll that presiding over particularly heinous cases could take on a judge, and encouragement to seek counseling and assistance if it was needed. Justice LeSage spoke to groups of judges at their annual conferences, and to groups of chief judges at their own gatherings, to emphasize the importance of encouraging judges to seek help. We as chief judges passed that information on to our courts, and made sure that judges were aware of resources. Those resources include the Judicial Counseling Program, which is similar to the Lawyers' Assistance Program. It is funded through the judges' extended benefits program and provides judges with access to a kind of employee assistance program. 

As far as whether there are "crumbling judges" the phenomenon may be less common that amongst the members of the bar, because the camaraderie is somewhat better in most judicial communities. Colleagues are often the first to note signs of trouble, and most judges are attuned to the need to encourage colleagues if they appear to be having difficulty. As chief judge I oversaw complaints against judges, which could sometimes serve as a red flag, and was able to encourage judges who showed signs of trouble to seek the necessary assistance. 

Having said all of that, as with most professions and vocations, there is still a stigma attached to an admission of difficulty, at least from the sufferer's perspective. I would be much happier to see the topic of mental health normalized - it is a view I developed while campaigning last year, in speaking with first responders about post-traumatic stress treatment. I think in some professions we need to presume that post-traumatic stress is an inevitable result, and judging may be one of them. Over the years most judges hear some pretty dramatic cases, dealing with life and death, injury and emotional upheaval, broken families, and human misery. I believe that a presumption of the need for counseling would de-stigmatize the problem. My view is that people in high risk professions, such as police and firefighters, and perhaps including judges, should have mandatory counseling for PTSD built in as part of their continuing education, at appropriate intervals. There is much more of this presented at judges conferences than when I was on the bench, but I don't know if it goes as far as providing the tools that a person would need to address the aftermath of dealing with a steady diet of traumatic material. 

Apart from traumatic material, judges' workload has been steadily increasing over the years, and that has caused an increasing stress level. Administrators and governments are always keen to achieve court efficiency (as are judges) but often the political initiatives that derive from those sentiments result in case overloads, briefcases bulging with reserved decisions, delays in decision delivery, and eventually, burn-out. That is another large topic - how we can best achieve efficiency without burning out our judges, which I will leave for another day, but it certainly contributes to the need for support and counseling from time to time."

What support is out there for judges?

All judges in Canada have access to the National Judicial Counselling program. It provides work/life solutions, support services and a wellness library. Consider reading Judge Wallace's moving experience with cancer.

In BC, there is the Lawyers' Assistance Program, which is open to everyone in the profession.

Hearing their stories and how their humanity and mortality makes them just like us, I have nothing but respect and admiration for the work that judges, masters and registrars do.

Dom Bautista is the executive director of Amici Curiae Friendship Society which provides free legal forms workshops for self-represented litigants in BC. Click here for volunteering information.