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Collin May: The Canadian Bar Association just disgracefully attacked freedom of the press

Lawyer's group has no business issuing warnings to journalists about how they cover the judiciary

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In a rather remarkable and unprecedented news release, the president of the Canadian Bar Association (CBA), Calgary commercial real estate lawyer, Bianca Kratt, took it upon herself to “warn the media on dangers of delegitimizing judges.” The organization that styles itself as the advocate for the legal community has taken to lecturing journalists on how they should report on judicial decisions and those that make them.

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What makes this statement all the more surprising, is that despite its general invocation to all media organizations, it appears to clearly target one particular journalist who recently wrote about an Ontario judge’s views on factoring race into sentencing and evidentiary rules.

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The journalist is National Post columnist Jamie Sarkonak. She has 10 years of journalism experience and is particularly prolific on legal and judicial matters. This fits well with her training. She holds degrees in history and law from the University of Alberta and honed her reporting skills at the University’s student newspaper, The Gateway, where she was editor-in-chief. She is not some disgruntled blogger or activist shill.

The article that has apparently so disconcerted the CBA is a March 21 column Sarkonak wrote about Ontario Superior Court Justice Faisal Mirza. Justice Mirza was appointed to the bench by the Trudeau Liberals in 2022. Prior to his appointment, he was known for his own brand of activism, especially his efforts to link sentencing to race, working to institute reduced sentences for “racialized” criminals convicted of violent offences. It is highly likely that Mirza’s work on sentencing played heavily into his appointment to the Ontario bench.

In her article, Sarkonak lays out Mirza’s past as well as highlighting some of his judicial decisions applying his race-based theories, including excluding evidence due to racial factors. However, she ends her piece noting that, “to his credit, there have been instances where Mirza refrained from applying a racial discount, and from tossing out evidence because of racism.”

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Overall, Sarkonak delivers an informative and well-researched effort, linking Mirza’s past activism to his current sentencing approach, which she considers a reflection of his biases. More broadly, she touches on a hot button issue in the Canadian legal community and does so by highlighting her objections to one of the more prominent advocates for racial considerations, now applying his philosophy as a judge.

So, what’s the CBA’s beef? In her statement, CBA President Kratt directly refers to “recent media commentary” about a specific, though unnamed judge of the Ontario Superior Court. She goes on to label that commentary as “another crude effort at undermining public confidence in the judiciary.” Kratt’s main argument is that judges come from numerous backgrounds — prosecutors, corporate law — but when they become judges they apply the law impartially “regardless of their prior views.”

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Whatever judges are supposed to be doing, Sarkonak is arguing that Justice Mirza is using sentencing criteria based precisely on his past activism; that he has not left his prior views behind or put them aside. Sarkonak also notes that the Courts more broadly have themselves adopted racial factors in their approach to sentencing and evidence, so Mirza is not entirely out of line with the law. Still, as a past advocate for considering racial accommodations, he has been one of the seminal voices in this area.

However, apart from the sentencing issue, what is perhaps more concerning is that Kratt targeted a specific journalist with a rather vehement attack. An attack that was specific enough that leaving Sarkonak unnamed didn’t conceal the target to anyone paying attention.

As already noted, Kratt’s message is not just a statement but an outright “warning.” This leads us to wonder what right the president of a voluntary legal association has issuing a warning to Sarkonak and to journalists generally. By what authority does the CBA deign to lecture the press on how and what they report, and by what standard does she presume to label Sarkonak’s writing as “crude”?

Towards the end of her warning, Kratt wraps up with the standard CBA mantra claiming to defend judicial independence and the rule of law, which she calls “a principle that protects every Canadian.” In her final statement, speaking apparently on behalf of the CBA, she states: “We call on media organizations and public commentators to engage with questions of criminal justice and judicial decision-making with the rigour and responsibility those issues demand.”

Again, it is not clear what particular rigour and responsibility is lacking from Sarkonak’s article, nor is it clear what qualifies Kratt to make such determinations. Unfortunately, it is all too easy for those of us in the legal world to use rote references to judicial independence and rule of law in order to silence public discussion about legal matters.

After all, there are other principles that also protect Canadians, including: freedom of the press, freedom of expression and academic freedom to analyze and criticize judicial decisions and judges. Judges exercise immense authority and power in our political system, and most do it quite well. But we also need journalists who are not afraid to call them out when they don’t.

Collin May is a Calgary lawyer, Adjunct Lecturer at the University of Calgary Cumming School of Medicine, and former Chief of the Alberta Human Rights Commission. He is currently completing a book on the future of cancel culture. 

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