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Remarks of the Right Honourable Beverley McLachlin, P.C.
The Role of Judges in Modern Society
May 5, 2001
We all possess a certain image of a judge. He is old, male, and wears pinstriped trousers. He decides only what is necessary, says only what is necessary, and on no account ever talks to the press. He is respected and revered. His word is, literally and figuratively, the law, eternal, majestic. Even those of us who do not fit naturally into the traditional image tend to grow into it. The truth cannot be avoided. We judges like the old image. We cling to it. And why not? It brings comfort, the comfort of knowing one is right, at least pending the verdict of a higher court, although most of us learned to rationalize that as well. It brings security, the security of knowing what to do and when to do it. And it brings gratification, the gratification of knowing we are important and appreciated. As Lord Hewart is said to have put it to the guests at the Lord Mayor of London's banquet in 1936:
His Majesty's judges are satisfied with the almost universal admiration in which they are held.
In similar vein Lord Devlin suggested in 1979 that
The English judiciary is popularly treated as a national institution . . . and tends to be admired to excess.
In similar vein also can be cited the story of Sir George Jessel M.R., who upon learning that Lord Selborne L.C. proposed to being an address with the words "We, Your Majesty's judges, conscious as we are of our manifold defects," is said to have objected strongly, saying "I am not conscious of manifold defects, and if I were I should not be fit to sit on the bench."
Though some will say that things have not changed enough, it is inarguable, I think, that things have changed. In Canada hardly a day goes by now without some criticism being levied against the judiciary. Often the criticism relates to a particular judgment, but on occasion it relates to the role of the judiciary in society more generally, or even to the role of a particular judge. To a large extent, increased public attention reflects the fact that, since Canada adopted the Charter of Rights and Freedoms in 1982, the role of the courts has changed and, in some ways, expanded. The public is understandably more interested in what it is that we're doing. And the press has of course responded to that interest. When an important decision on the validity of Canada's child pornography laws was released in January, for example, the lobby of the Supreme Court building was overflowing with journalists. Nary a newspaper could be found that did not run at least one editorial on the decision; many ran opinion pieces as well, and most ran multiple news stories. Some even printed excerpts from the reasons. We saw the same public attention given to our recent decision in the Latimer case. Indeed, that case has stemmed a rich debate in the pages of countless Canadian newspapers, with not only journalists but also general readers weighing in on the perceived wisdom or callousness or naiveté of the Court's judgment.
As I said, much of the increased attention can be traced to the changing role of the courts in modern society - a change that, in Canada, has been underlined by the adoption of the Charter. But some of the comment and criticism on courts we more and more commonly see in the press is not so much the result of a change in the role of the courts as a result of a change in the way citizens relate to public institutions, including the courts. The prolific English lawyer and writer, John Mortimer, speaks of "a general decrease in the awe and wonder with which the population looks at its established institutions," an attitude from which the courts are not exempted. He puts it this way:
Many years ago, when I first took up the law, proceedings in court were shrouded in myth. In those days the country at large believed that trial invariably came to the right conclusion, that police officers told nothing but the truth, and that judges were miraculously conceived and were born unencumbered with the usual human luggage of preconceived ideas, kneejerk reactions, prejudices, failures of the imagination, inability to admit mistakes, or pure bloody-mindedness.
These myths have now, no doubt to the regret of many members of the legal profession, gone the way of witchcraft and the Flat Earth Society. Trials have, despite energetic whitewashing by appeal tribunals, been shown to have gone horribly wrong. Police evidence is now taken by juries with large helpings of salt. And the pronouncements of some judges, before and since retirement, have gone beyond endearing eccentricity to give some cause for alarm.
We arrive, then, at an apparent paradox. Judges are more and more the subjects of critical scrutiny. But at the same time the truth is that the public has never held the judiciary in higher esteem. This is demonstrated by the fact that it turns to the judiciary more and more for the resolution of its problems. As one writer put it, "the [Supreme] Court may be the only major national institution to escape public resentment." It must be said that this observation was made in 1990, without the benefit of the developments of the last decade. However, I think the point is still largely accurate. Some of you may be familiar with a study that the Institute for Research on Public Policy conducted last year, which found that 77 percent of Canadians were generally satisfied with the way the Supreme Court has been working. The same study also found that 66% of Canadians believe that courts, rather than the legislature, should have the final say as to a law's constitutionality.
Perhaps more important, public support for the courts is not tied to the popularity of any one opinion; rather, it appears that public approval of the Court is tied to the perceived integrity of the judicial process. The study examined public opinion of two Supreme Court of Canada cases in particular: Feeney, in which the Court suppressed evidence in a murder case on the grounds that it had been obtained in violation of the Charter, and Vriend, which forced the Alberta government to extend human rights protections to homosexuals. A solid majority opposed Feeney, but most were in favour of Vriend. The study concluded as follows:
Notably, where Canadians are generally opposed to [a] ruling, as in Feeney, these attitudes have little leverage on overall assessments of judicial institutions. In contrast, where public sentiment is consonant with the Court's decision, [as in] Vriend, . . . opinion on the case is more tightly linked to general attitudes.
In my view, the IRPP study hit upon a critical point: And the same studies show that citizens' faith in the courts is not principally the result of agreement with the court's decisions, but a result of faith in the judicial process. Canadians, at least, and I am sure it is the same in most modern democracies, appear to share a profound belief that when other institutions fail, one can count on the fairness of the courts.
I believe that the combination of these two phenomena - increasing critical scrutiny of judges and increasing confidence in judges to sort out society's problems - is not, on closer scrutiny, a paradox at all, but the other result of a radical alteration in the public perception of the role of judges in modern society. The old role of a judge as a symbol of authority, sometimes scrutable, sometimes not, whose edicts from on high must be uncritically accepted as just and fitting, has gone the way that absolutist-classist government went in the nineteenth century. The judges in modern society are not potentates: they are rather servants, servants of the people in the highest and most honourable sense of that term. The judge has a task, a more important task than ever before. It is precisely because of the importance of this task that the judge is expected to perform it well and efficiently, to be responsive and responsible.
This new view of the judge involves changes on every front. Tonight, I will focus briefly on five of them.
1) Changes in the task and duties of the judge.
2) Changes in the way they discharge those duties.
3) Changes in the process through which the duties are discharged: the administration
of justice.
4) Changes in the terms of office of judges: how they get their jobs and how
they are disciplined and removed.
5) And finally, changes in the way judges relate to the public.
1) Changes in the duties of judges
There was a time, not so long ago, when the main job of judges was to resolve disputes. The whole common law is predicated on this notion. Two parties find themselves in disagreement. They cannot resolve it. So they go to a judge for a decision. Parliament made the laws. The judge applied them to the case. That was the entire story, or almost.
Resolving disputes is still the primary and most fundamental task of the judiciary. But for some time now, it has been recognized that the matter is not so simple. In the course of resolving disputes, common law judges interpreted and inevitably, incrementally, with the aid of the doctrine of precedent or stare decisis, changed the law. The common law thus came to recognize that while dispute resolution was the primary task of the judge, the judge played a secondary role of lawmaker, or at least, law-developer. In the latter part of the twentieth century, the lawmaking role of the judge has dramatically expanded. Judicial lawmaking is no longer always confined to small, incremental changes. Increasingly, it is invading the domain of social policy, once perceived as the exclusive right of Parliament and the legislatures.
This expansion can be attributed to a number of factors. One is the trend to the constitutionalisation of rights. The new perspective of social policy which confronts modern courts is fuelled in large part by a heightened collective awareness of human rights. It is this feature, perhaps more than any other, which characterises legal thinking as we approach the twenty-first century. In Canada, a series of human rights statutes has culminated in a constitutional bill of rights, the Charter. In the European Community, similar documents shape policy for hundreds of millions of people. And the trend continues in many other places all over the world. Wherever we live, the legal dialogue increasingly centres on individual rights and liberties: the political liberties of democratic participation; liberty of religion and expression; the guarantee of equality regardless of gender, race, or age. The trend to the constitutionalisation of human rights increasingly implicates the courts in a broad range of social policy issues. The bills of rights guarantee to each person certain fundamental rights. When legislation or government action offends these guaranteed rights, people go to the courts for a ruling that the law or conduct is unconstitutional. And the courts, which were formerly compelled to accept Parliament's decree as the last word, now are obliged, if it violates the constitutional code of rights, to declare the law or action illegal. The nature of these guarantees, most particularly guarantees of equality, freedom of speech and freedom of religion, is such that the courts are, whether they like it or not, required to give judgments on matters of social policy.
Another factor in the new social policy role of judges cited by scholars is the perceived inability or unwillingness of legislative bodies to deal with pressing social issues. Much has been written of this in the United States, where the division of powers between the legislative bodies and the executive has at times led to legislative paralysis. In Canada, we have encountered the same problem: some issues, like abortion and euthanasia, are too controversial for Parliament to take on. The result has been that the courts are asked to resolve these issues. Whatever the reason, it seems clear that, as former Chief Justice Lamer once put it, the agenda of courts in the years to come is going to take on an increasingly social face. Gone are the days when judges could spend their days musing on the principles of contract, tort, and criminal law. Their field includes these, but much more as well.
The necessary concomitant of the increasing insistence on human rights and the new social face of the law is an independent judiciary, ready and able to review a wide range of government action. While the legislative and executive branches of government have a front line role to play in supporting human rights, the difficult burden of interpreting the rights and maintaining them even in the face of governmental intransigence if need be rests on the shoulders of the courts.
The new task which judges have been assigned is not easy. There is a very real question whether courts, which lack resources for gathering and collating information and opinion available to the legislatures, are the best institutions to decide complex social policy questions. But that question is increasingly moot. The reality, at least in Canada, is that judges are being required to decide these questions, no matter how difficult it may be. Former Chief Justice Lamer characterized the difficulty judges face in deciding issues of social policy in this way:
I sometimes think of these sorts of cases as being somewhat like a spider's web. If you pull on one strand of the web, the entire structure moves, but not necessarily all in the same direction. The implications are widespread and, at times, hard to foresee.
Not only are the problems difficult, they may tax existing procedures. In Canada the Charter has "stretched [our traditional adversary system] beyond its limits . . ." We may find "our traditional adversary proceedings poorly designed" to deal with cases where the issue is not the dispute between the parties so much as the validity of the legislation. Indeed, as then-Chief Justice Lamer pointed out, "quite often there are really two cases going on at the same time. There is a bi-polar dispute between the immediate parties, but, within it, there is a Charter issue that is polycentric. One can get in the way of the other." How can we as judges forsee which strand of the complex web we should pull, or what the consequences of pulling it might be? Trained in the cases, schooled in the precedent, how are we to make the difficult choices these policy questions pose? Many days I have cause to recall what a young counsel once said to me when I, as a trial judge, ventured a critique of his argument. "Well, my lady," he replied, "there are pros and cons for it and pros and cons against it."
2) Changes in the way judges discharge their duties
The changing role of judges, and in particular their greater involvement with social policy, has an important effect on the way judges work.
But before I go into that impact, let me make an important preliminary point. The fact that judges rule on social questions that affect large numbers of people does not however, mean that judges are political. There is much confusion on this point in the popular press. Judges are said to be acting politically, to have descended (or perhaps ascended) into the political arena. Judges, on this view, are simply politicians who do not need to stand for election and can never be removed.
This misapprehension confuses outcome with process. Many judicial decisions on important social issues - say affirmative action, or abortion, or gay rights - will be political in the sense that they will satisfy some political factions at the expense of others. But the term "political" is used in this context to describe an outcome, not a process. While the outcomes of cases are inevitably political in some broad sense of the term, it is important - critical, even - that the process be impartial. It is inescapable that judges' decisions will have political ramifications. But it is essential that they not be partisan. In their final form, judgments on social policy questions are often not all that different from legislation. It is the process by which the judgments are arrived at that distinguishes them. Legislation is often the product of compromise or conflict between various political factions, each faction pushing its own agenda. The judicial arena does not, and should not, provide simply another forum for the same kind of contests. Judges must maintain the appearance and reality of impartiality. It is impartiality that distinguishes us from the other branches of government, and impartiality that gives us our legitimacy.
Against this background, I turn to how changing society affects the work of judges. The nature of the questions they decide, and the public expectation that they will decide them fairly and well, place new demands on judges. It no longer suffices to be a competent legal scholar and a fair arbiter. To perform their modern role well, judges must be sensitive to a broad range of social concerns. They must possess a keen appreciation of the importance of individual and group interests and rights. And they must be in touch with the society in which they work, understanding its values and its tensions. The ivory tower no longer suffices as the residence of choice for judges. The new role of judges in social policy also demands new efforts of objectivity. Often the judge will have strong personal views on questions which a judge is asked to decide: questions like abortion, capital punishment or euthanasia. But the task of judging is not accomplished simply by plugging one's personal views into the legal equation. The judge must strive for objectivity. This requires an act of imagination. And it requires an attitude of "active humility", which enables the judge to set aside preconceptions and prejudices and look at the issue afresh in the light of the evidence and submissions. The judge must seek to see and appreciate the point of view of each of the protagonists. She must struggle to enunciate the values at issue. Then she must attempt to strike the balance between the conflicting values which most closely conforms to justice as society, taken as a whole, sees it. It is impossible to eliminate the judge's personal views. But by a conscious act of considering the other side of the matter, the judge can attain a level of detachment which enables him or her to make decisions which are in the broader interests of society. In the end, the judge can know no other master than the law, in its most objective sense. As Sir Robert Megarry put it:
The judge's duty is one of obedience to the law and to his judicial conscience. He must do not what he wants to do but what he ought to do.
3) Changes in the process: the administration of justice
The new demands on judges will bring changes in the processes by which cases are heard and judicial decisions are rendered. Not only is the scope of the issues which courts are being asked to decide expanding rapidly, but more and more people are coming to court. Moreover, they are demanding justice which is not only right, but justice which is prompt and efficient.
This places great pressure on the process. Finding dates for trials and appeals is becoming more difficult all over the world. There never seem to be enough judges. And after a case is heard, courts sometimes find themselves ill-equipped, in terms of staff and resources, to produce the judgment in a prompt and efficient manner. As a consequence of these pressures, court management has become a hot topic. In the United States, a number of organisations devoted to the subject have been established. Conferences abound. Journals are printed. The same developments can be expected, although perhaps on a reduced scale, in other common law countries as court systems struggle to keep up with the demands on them.
4) Terms of office: appointment, tenure and discipline of judges
As a consequence of their changing role and the increasing importance of the matters which they decide, the appointment and governance of judges is coming under increasing scrutiny.
The final key to the well functioning judiciary is an effective and open complaint process. We in Canada have established a system in which complaints are reviewed by a committee of judges under the aegis of the Canadian Judicial Council. If the matter is found to warrant further consideration, it may be referred to Council and ultimately to a hearing which has the power to recommend impeachment proceedings. Although few complaints ultimately prove valid, the procedure is an important guarantee of judicial competence. Everyone agrees that we must ensure that judges function with of the highest competence and integrity. Nothing less will do, given the gravity of their role.
The first focus in attaining this goal is the appointment of judges. Who should select the judges? Should the selection be made by the Prime Minister or by the Cabinet? Should it be made by a permanent representative council? If the Prime Minister makes the selection, should Parliament have the right to criticize it through a hearing process, akin to the Senate hearings on nominations to the Supreme Court of the United States. In considering the alternatives, we must beware of the danger of unwarrantedly politicizing the appointment process, something which has largely been avoided in Canada thus far. We must also beware of turning the process into a public inquisition that could deter qualified candidates who prize their privacy from standing for office, particularly when it is questionable whether the well-rehearsed questions and answers really shed much light on the suitability of a candidate to sit as judge. We need a system of judicial appointment that instills public confidence in the judiciary. But in seeking this goal, we must be careful not to turn the nomination process into exactly what it should not be, that is, a political forum.
But getting competent, independent persons of unimpeachable integrity appointed as judges is just the first challenge. The second is to ensure the impartiality of judges after they have been appointed to the bench. To this end, we must focus on security of tenure, adequacy of remuneration, and the institutional independence of the tribunal. Recent events in countries with less stable political systems emphasize that we cannot take such things for granted. Indeed, in a sense it is a luxury to worry about security of tenure and adequacy of remuneration. In many countries around the world, judges must worry about their own physical security, and about the physical security of their families. And yet the necessity of those apparent luxuries cannot be overstated. Judges whose livelihood depends on the favour of the executive or of the legislature or of particular interest groups will not be, and will certainly not appear to be, impartial.
5) The relationship of judges to the public
The new role of judges in modern society has changed, and will continue to change, the traditional relationship between judges and the public. Judges have traditionally held themselves aloof from the public. They have lived in quiet isolation. They have deliberately severed ties with old friends and acquaintances, the better to assure their independence. Save for exceptional circumstances, they have refused to talk to the press. And they have generally declined to speak out in public on anything other than the dull business of the legal process, and then only with great circumspection.
But anyone who has read the Canadian newspapers over the past few weeks is well aware that there is much controversy over whether a judge may or should speak out to answer criticism of her court, of the judiciary generally, or of herself in particular. The controversy is largely a result of the public's changing expectations. The public that pays the judges and takes its cases before them increasingly takes the view that it is entitled to know who these people are. Judges are faced with the question of whether or how to respond to the new demands of the public - demands that are underlined by the new ubiquitousness of the media.
The appropriate response is not at all clear. It is accepted by all that judges should not comment on matters which may come before them. Many think it unwise for judges to speak other than through their judgments, save for special occasions, as when a judge is newly appointed to elevated. However, some judges, particularly Chief Justices responsible for the administration of the courts, find it necessary from time to time to speak out on matters of concern to the justice system. Others would advocate freedom to speak out even where there is no necessity, arguing that there is much to gain from improving public understanding of the task judges face and how they go about it, and little danger, provided the judge stays away from controversial issues. A recent report of the Canadian Judicial Council notes that "[t]here are many instances where judges themselves may be the best messengers, and the groups they should reach may prefer to hear directly from judges themselves."
Needless to say, there is a spectrum of opinion on the issue. What seems clear, however, is that, over the last twenty or so years, the entire spectrum has shifted in favour of a greater willingness on the part of judges to speak out. This shift is a reflection of the changing role of the judiciary, and perhaps a reflection of the fact that our democracies are becoming more participatory, with citizens taking a more active interest in the way social policy is made. Judges must always remember, however, that this new openness must not be permitted to sully their perceived or actual impartiality. We must be aware of the possibility that some may construe our words, justifiably or not, as an indication of prejudice. We must also be aware that our words may colour the public's interpretation of our past or future judgments. The willingness of judges to speak out must be tempered by a constant awareness of lines that cannot be crossed, if the judiciary is to remain above the political fray and continue to effectively discharge its role of neutral, impartial, and independent decision-making. Judges are not politicians. Nor are they advocates. Judges are, quite simply, impartial decision-makers. That is their highest calling and they must, through all the changes, remain true to it.
Conclusion
Judging is not what it used to be. Judges are more important now; judges are more criticized. And judges face more difficult tasks than they ever have faced before. If judges are to meet these challenges they must be educated, competent and engaged. They must be prepared to work hard. But all this will be to little avail if the one quality which has always been required of a judge, independence, is forgotten. In discharging its new role, the modern judiciary must fall back on the source of strength it has drawn upon over the centuries - its institutional and individual independence. It is this independence, coupled with integrity and a commitment to service to society through impartial decision-making, that has made the judiciary the important institution it is and that will preserve it into the future. And on the broader political plain, it is this independence that guarantees respect for human rights and the rule of law in the countries that we as judges serve, and hence the advancement of all our peoples. The task facing the modern judge is not an easy one. But it is one of critical importance. If we fail, the rule of law will fail. It is as simple as that.
Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
The Fourth Worldwide Common Law Judiciary Conference, Vancouver, British Columbia
Saturday, May 5, 2001
