Saturday, August 19, 2017

A Chief Justice’s Power to Assign and Schedule and the TWU ‘Intervention Affair’*

Introduction

     There was a lot of discussion about the Supreme Court of Canada's (SCC) recent decision to permit additional interveners in the upcoming Trinity Western University  (TWU) case, see e.g. here and here.  The ‘intervention affair’ is the latest in series of developments that have highlighted the independent scheduling and assignment powers of top judges in Canada.
     There remains an uncertainty about this important aspect of judicial independence.  In this context, this blog briefly highlights how this power relates to the 'inherent discretion' of Courts, and describes two other notable developments where this authority has also created controversy.  It concludes by describing the circumstances of the use of the Chief Justice's assignment and scheduling power in the recent TWU proceedings.

     In my view, this important part of judicial independence, central to rule of law, requires further clarification generally.  More specifically, the SCC should take some further action to appropriately acknowledge or recognize this authority in the context of its own recent actions, which may have created some unfortunate misperceptions about rule of law and judicial independence in the administration of justice.
1.     Judicial Scheduling and Assignment
     Judicial independence in Canada is usually viewed in the context of several ‘dimensions’ that include tenure and remuneration, see e.g. the case law in the line starting with Valente v The Queen.  Judicial authority for assignment and scheduling falls within the third administrative dimension, which has both an individual and an institutional aspect.
     Individually, this part of independence is perhaps best captured in the concept of the ‘inherent discretion’ of the Courts.[i]  This power can be described as the authority of judges to control proceedings over which they preside, but I would say also imbues the 3rd branch of government with a broad authority in Courts' administration and is a source of a Chief Justice’s power to act to appoint judges to preside in locations and over cases.  ‘Inherent discretion’ has some likely limits, see e.g. here, but remains a poorly defined reserve of additional judicial powers. 

     The examples below illustrate challenges created by this ambiguity, focusing on the exercise of a Chief Justice’s power to assign and schedule.[ii]
2.     2017 New Brunswick Legislation
     Last spring, New Brunswick passed legislation that provides the provincial Attorney General (AG) with a veto power over the Chief Justice’s assignment of judges to geographical locations, see hereThis recent law likely touches on the recognized authority of judges for assignment and scheduling, see the SCC decision in MacKeigan v Hickman.

     Given provincial constitutional responsibility for the administration of justice, to provide things like a physical office space, human resources and administrative support, the involvement of the provincial executive in these decisions makes sense.  Media reports paint government involvement in assignment elsewhere as a facilitative process, where the executive and judicial branches work together, see the examples of Alberta and Saskatchewan highlighted in this articleHowever, New Brunswick’s recent law faced judicial opposition when Chief Justice Smith of the provincial Court of the Queen’s Bench raised concerns that it impermissibly trenched on the recognized independent authority of judges to assign and schedule, see e.g. here.
      Since there few, if any absolute discretions in Canadian law, see e.g. the well-known case of Roncarelli v Duplessis, this legislation must respect judicial independence, but also be balanced against the public interest. If these New Brunswick amendments purport to vest in the provincial AG an absolute discretion to determine sitting locations, absent appropriate considerations of judicial independence and other public law principles, then they may well prove untenable within Canada’s constitutional framework. 
     In the end though, the question of whether or not this recent legislation inappropriately breaches judicial independence remains a live issue.  
3.     Alberta Court of Appeal 2017 Decision in R v Gashikanyi
     Recent obiter comments in the Alberta 2017 decision in R v Gashikanyi have also created controversy and focused attention on judicial assignment and scheduling.  In that case, Justice Berger asserted that the Court of Appeal Chief Justice’s assignment to judicial panels was not random.  Justice Berger’s comments raised the possibility that individual judges are being assigned on the basis of their approaches to law, which could influence the final outcomes of some decisions, as I discussed in a previous post.
     The SCC decision in Mackeigan, noted above, suggests that assignment and scheduling is within the exclusive purview of judges.  But some recent case law also supports the proposition that the assignment and scheduling power may also be reviewable in the context of determining sitting locations, see the 2000 Alberta case involving a provincial court judge in Wachowich v Reilly. 

     Ultimately, there appears to be little evidence advanced in Gashikanyi to support Justice Berger’s obiter comments (see para 114 of the decision).  As noted by the dissent there, such a proposition faces a high bar of proof as a potential breach of the presumption of judicial impartiality (at para 117 of the decision).  However, the decision does raise the question of the scope of a Chief Justice’s powers to schedule and assign, and whether they might also be subject to a measure of external scrutiny.  
4.     The TWU ‘Intervention Affair’
     In addition to the legislative and jurisprudential examples above, the recent Supreme Court orders in the TWU litigation, which is scheduled for hearing in the Fall of 2017, appears to present a procedural example of uncertainties in the exercise of this power.
     The proceeding involves the authority of provincial law societies to accredit a law school in British Columbia which imposes a ‘community covenant’ on its students not to engage in sexual relations outside of marriage, which is defined as between a man and a woman.  Leave to intervene in the case, out of matters arising in British Columbia and Ontario, see here and here, was initially denied by Justice Wagner for a number of parties. The first decision to exclude some parties was subject to the criticism on social media, that these groups had an interest in the litigation and their distinct perspective was being unjustly excluded, see e.g. below:




      A few days after Justice Wagner’s order, the Chief Justice issued a subsequent order, which added an additional day to the hearing and granted leave to 17 of these excluded groups to make submissions in the case, see here.    Whether or not the Chief Justice’s order ‘overruled’ the earlier decision, or simply ‘varied’ it, could also be a matter of dispute.  However, either characterization fails to address the lack of explicit authority for the Chief Justice to make a later change under the existing rules of the Court, see Rule 75, here. The change to the first decision by the Chief Justice also appears unprecedented, see here.

     The Supreme Court does not usually issue reasons for its leave decisions. The lack of reasons in the intervention affair left some questioning the legal basis for the change, see here.  Further compounding the unprecedented nature of the Chief Justice’s decision, the Court subsequently issued a rare press notice, that appeared to provide some supplemental explanation for the Chief Justice’s decision to change the initial order.  The unusual nature of these developments was further complicated by Justice Wagner's subsequent media interview discussing the case, in which additional details of the Court’s internal deliberations seemed to be revealed, suggesting that the change was made in part because of the negative reaction to the initial decision by some on social media, see here.

     The press notice and subsequent media interview appear to fly in the face of the longstanding practice of the Court and its judges to only comment on litigation in open proceedings or in judgments, see discussion of this point here.  In this case the matter is still pending and therefore also subject to the sub judice rule, see a good scholarly treatment of the principle here, which stands for the proposition that all public officials should avoid comment that could adversely impact the perception of impartiality of the administration of justice.   Possible misperceptions in this case include that the Chief Justice acted without legal authority to overrule another judge, or that one or more judges had their independence and decision-making in an ongoing matter influenced by public criticism. 

     For now, these perceptions remain largely unaddressed.
Conclusion
     The indeterminacy I’ve identified in the judicial scheduling and assignment power is one that has created challenges.  Given the centrality of judicial independence to rule of law, this lack of clarity is particularly disconcerting, especially when it manifests at the highest Court.  I think there is little doubt, based on the discussion above, that there exists some legal basis for the Chief Justice’s intervention in the TWU litigation, given the broad reserve of powers available to the Court as a matter its inherent jurisdiction.
     But all of these cases highlighted also suggest that some clarification of the scope and limits of a Chief Justice’s authority in this area may be needed.  At a minimum in the intervention affair, the fact that SCC leave decisions can be re-visited in some fashion should be recognized, and, if necessary, acknowledged in the rules governing proceedings before the Court.  At a time when democratic rule of law is being challenged around the world, see e.g. here and here, it is important that Canadian Courts and judges continue to be as open and transparent as possible in the exercise of their independent powers. 

   hhttps://twitter.com/egalecanada/status/891029002852413440ttps://twitter.com/egalecanada/statu  

* The views and opinions expressed in this work are my own.  From 2003 to 2011 I served as judicial counsel, in several capacities, in the Office of the Chief Justice of the Superior Court of Justice of Ontario. My recent  2016 PHD in law examined the principle of ‘independence’ for lawyers and judges in the Canadian justice system, see "Between Principle and Practicality: A Dynamic Realist Examination of Independence in the Canadian Justice System".


[i] The seminal article is I.H. Jacob, “The Inherent Jurisdiction of the Court” in Current Legal Problems (1970).
[ii] See e.g., discussion of ‘inherent jurisdiction’ by Canadian Judicial Council document "Alternative Models of Court Administration", at pp 42 – 47.

Monday, August 7, 2017

Harry's 'Call to Arms' Comes With a Canadian Caveat


Harry Leslie Smith is a hero from another age with a cautionary tale about politics today.
The 94 year old has written books, like Harry’s Last Stand, and is a well-known contributor to numerous publications, including The Guardian and The New Statesman.  Together with a popular podcast, Facebook presence, and almost 100,000 Twitter followers, Smith has become a world-wide social media phenom.  His message, that forgetting our shared past risks the future, has also brought him national attention in Canada, as described recently in the Globe and Mail.
It was a pleasure to hear Smith speak recently.  A World War II veteran, Smith told the story of his early days of extreme poverty, to a small gathering at the public library in Prince Edward County’s Picton branch in late July.  He warned that the benefits won in hard fought past battles, in both war and social policy, are being threatened by today’s events.
Harry Leslie Smith, his son John, and me.
“I have seen all this before.  In the 1930s people gave fascism a chance because they felt betrayed by politicians who promised a better life, but only delivered material wealth to the one percent of the day.”  Smith’s described his early days as filled with hunger, cold and deprivation.  “I lived in a neighbourhood where no one could afford sentimentality,” he told us. 
“Workhouses existed just like in the novels of Dickens.  They were places for people whose only crime was being poor.”
His own father dug coal six days a week, 10 hours a day, but the family always lived on the edge of extreme poverty. “There is no dignity in labour exploited for extreme profit,” he said.  “It is evil.”
 Children at Crumpsell Workhouse in England, 1895 - 1897

There were few basic social services in the working class northern English town of his youth. “People screamed their way to death” he said and he recalled “walking down the street at 6 or 7 and from behind the windows hearing screams of people in pain from illness, who could not afford to go to the doctor.” Smith’s own sister contracted tuberculosis, died, and had to be buried in a pauper’s grave
At age 18 in 1941 Smith joined the Royal Air Force. “Before we could fix the tyranny of unmitigated capitalism at home, we would have to stop the tyranny of Nazism,” he said. At the end of the conflict, grateful to have survived and mourning those lost in battle, he celebrated victory.  But he also foresaw the “genuine possibility” that people could build a better and fairer society.
But, Smith noted, the political will to improve social conditions did not last.  He described how governments in the 1970s slowly began instead to favour corporate over public interests, in a trend leading to the present day.
A physically unimposing five feet or so in height, the bespectacled nonagenarian spoke sitting down, with a quiet Yorkshire accent, his reading hampered by poor eyesight and low light.  Yet his conclusion, borne of his own experience, was a forceful warning about recent events: “Brexit and Donald Trump are what happens when nations deprive their citizens of social security & good paying jobs.  In the twilight of my life, I am watching the tide of civilization creep out to sea, like the tide in the Bay of Fundy.”
Smith’s son John accompanied him, and helped to flip through the many pages of his speech, prompting when he lost his place.  There was something very familiar about Harry Leslie Smith, and I felt a little déjà vu, when we met at the library.  Turns out there is a Canadian connection to this story.
John said his father liked to think “his life began” when he immigrated to Canada in 1953.  Following the war, Smith moved to Scarborough, Ontario.  In fact, the family were my neighbours. 
Of a similar age, Harry’s son even graduated from one of my rival high schools, in the Toronto suburb that we both called home.  I mentioned to him that I had also worked as a teenager as a sales clerk at the Canadian Tire store near to where we lived, and he said he had visited there “many times” in the past. 
It’s a small world indeed.
Canadians have been getting attention, and praise, for how well our democratic institutions seem to be holding up in the face of a perception that democracy is failing in other places, see e.g. here.  But Smith had a further warning for us too, suggesting that similar democratic challenges to social policy could soon be faced by this country.
“Canada is no different”, he said.   It is “in as bad a shape as the rest of the western world.” 
He noted multiple public crises here including in housing, personal debt, health care, lack of wage rises and a shrinking middle class, and suggested the seriousness of these issues remains obscured only now by Canada’s large geography and small population. 
Neither did Smith spare current political leaders from scrutiny in his remarks.  “Never believe the good intentions of a provincial premier who raises the minimum wage while gutting ordinary services,” he said.About federal politics he observed critically that, “a PM who takes selfies and talks of the politics of inclusion, while reneging on promises to make Canada more democratic and selling our infrastructure off to the private sector, will not protect the country from demagogues.
In another bit of synchronicity, Smith is both a former and current neighbour of mine, who lives part-time at his Belleville home in Ontario’s Quinte region.  Reached there for further comment he said,“the suffering I endured coming from a working class family was no different for working class people in Canada during the dirty thirties.  The erosion of the Welfare State in Canada is almost identical to what occurred in Britain.” 
He also mentioned his new book, “Don’t Let My Past Be Your Future: A Call to Arms”, which he said, “is universal in its condemnation of neo-liberalism or the bogus ‘middle of the road’ of politics of Justin Trudeau.”
Despite his relative fame, and local connections, his son said that they get surprisingly very few speaking requests here.  It may be that in the face of Canada’s apparent exceptionality to the decline of democracy elsewhere, Smith’s message doesn’t get much traction here. 
A Black Swan   -  "Fir0002/Flagstaffotos"
And I hope his fears for this country are wrong.  But agree or disagree, I think it wise for Canadians to take note of his warnings to be on guard against these dangers.  As everyone has witnessed south of the border, there seem to be some once-in-a-generation, ‘Black Swan’ type changes occurring in politics now, which are both rare and unexpected, see e.g. Donald Trump: The Black Swan President. There is little reason to think that Canada could not be similarly at risk.

In the end, Harry Leslie Smith’s remarks were a provocative message from the past that has caught the ear of some important people elsewhere.  His new book, due out this September, has been endorsed by British Labour Party Leader Jeremy Corbyn.   

Tuesday, July 25, 2017

Why Not Schrödinger's Judge'? The Process of Legal Decision-Making

1.      Introduction

     I've been having a little fun over the holidays thinking about different ways in which judicial decision-making is conceived.  This blog briefly examines external influences on decision-making implicit in some traditional conceptions and suggests representations of the legal judgment process could use an updated model. 

     One alternative considered below is Schrödinger's Cat, a well-known analogy in physics that has achieved a kind of pop culture status, see here.   I suggest that adapting a version of this comparative model to law provides a modern conceptual framework that better describes how judges function to preserve indeterminacy, to enable their impartiality in decision-making.

Erwin Schrödinger

2.      Historical Divine Influences?

     There is a long historical connection with the belief that judging in law involves divine intervention.  For example, compurgation involved the recitation of a long passage by a potential witness, typically religious text from the Bible.  If someone misspoke, it was evidence that God had interceded to trip the tongue of the prospective witness, so that everyone would know they were lying. 

     Compurgation has long been abandoned, but the belief that a person's verbal missteps or assuredness can reveal something about the truth of their testimony remains a potential powerful influence in all assessments of human behaviour.  In legal proceedings, elements of using behaviour to judge the quality of testimony is, in my opinion, related to the modern discussion in law about 'demeanour evidence', which has vexed Canadian courts, see e.g. here

     Other divine involvement in past legal procedures were thought to occur in trial by combat, made popular in recent times by its depiction on television in the Game of Thrones.  There two disputing parties were set directly against one another in a physical confrontation.  The winner was the champion whose cause was just and victory showed them to be 'favoured by God'.

A Famous Trial By Combat From 1409

     The only weapons used in today's court battles are words, legal reasoning and persuasion based on evidence (though invoking the right to trial by combat in modern times has been attempted, see here). But adversarial advocacy, rooted in past tradition remains an integral part of the modern legal system.  Perhaps most importantly, the adversarial approach to law lets judges maintain impartiality to receive and assess opposing arguments, the relative merit of which remains finally undetermined until judgment is rendered (1).

3.     External Influences in Other Legal Theories

     The above examples all focus on past instances from the Natural Law tradition.  However, other legal theories also include descriptions of judicial decision-making that incorporate significant external considerations.  For example, Formalism took legal rules derived from precedent to be knowable, universal principles, that could be determined and applied in subsequent cases.

     Even here though, the Formal model was not legal, but rather sought to mimic the scientific method and process.  By comparison, the core criticism of legal Realism was that judges manipulated legal principles to do, outside of the law, what they instead intuitively or subconsciously felt was 'right' in the circumstances (2).

4.     Inherent Indeterminacy in Law

     While relying on things outside of law, many theories also tend to diminish the role of indeterminacy in the course of decision-making.  In proceedings, ideally arguments advanced by independent advocates are held in suspension until judgment, as an aspect of the adjudicator's impartiality.

     In this characterization of judicial decision-making, the ambiguous outcome of a legal dispute is an uncertainty that is necessary for a judge to maintain an independent mindset.  I would say that the inherent indeterminacy identified here also lies at the heart of law and legal systems and forms part of what Jeremy Waldron has identified as the "essentially contested" nature of some law, or what Neil McCormack described as its "arguable character"(3).

     More specifically, only at the conclusion of a particular legal dispute do parties know the outcome of their proceeding.  In this way, rather than divine intervention in a trial, or scientific methods, or something else, a better comparison for adjudicative decision-making is the modern physics metaphor of Schrödinger's Cat, which describes quantum uncertainty, but can be adapted to describe the judicial function.

5.  Why Not 'Schrödinger's Judge'?

     Schrödinger's physics experiment attempted to explain the seemingly bizarre operation of quantum mechanics.  Imagine a cat placed in a box with a device that could, completely randomly, cause its death.  As an imaginary exercise this experiment was of course not real.  As I understand it, the cat was in fact a symbol for the uncertain behaviour of an elementary physical particle.

     The point about opening the box was that the act of observation might itself have a determinative effect on the outcome of what the particle, as symbolized by the cat, would do.  Until observation the particle was theoretically in two possible states - ie, the cat was both dead and alive at the same time.

My barn cats

     Adapted to law, a similar thought experiment could also be used to illustrate the process of judicial decision-making in a legal proceeding.   Here, I imagine the judge's mind is like the box in Schrödinger's metaphor.  The state of the cat is like the final determination or judgment, which remains necessarily indeterminate while the adjudicator hears both sides of an argument. 

     That is, the final state of the legal argument before the Court remains unknown, and is possibly both meritorious and unsuccessful at the same time.  Only when the box, or here the mind of the decision-maker is opened to crafting a judgment, are the determinations of the judge revealed.

6.     Conclusion

     As a representation of judicial decision-making, my proposed metaphor of 'Schrödinger's judge' does not rely external factors or interventions.  As a symbol of the judicial reasoning process, the metaphor also better respects the ideal and necessary indeterminacy that exists in adjudicative decisions, described above. 

     Despite the emphasis in modern legal writing on law's predictability, see eg Waldron's paper on this here, at 9, there always remains some potential ambiguity about the application of legal principles to factual circumstances.  But more importantly, the uncertainty of law in proceedings being heard by a judge is an essential part of the way that decision-makers maintain their judicial independence. 

     Instead of relying traditional approaches to judgment that seem subject to outside influences, and don't acknowledge the role of legal indeterminacy, we should update the model.  Not sure how far this analogy might be taken, but its been an entertaining summer diversion to think about these comparisons. If we want to modernize our justice system, maybe we should start with updating our descriptions of legal processes like decision-making.  In other words, in law, why not Schrödinger's judge?


1.  As Lon Fuller asserted in his well-known article on "The Forms and Limits of Adjudication" (1978) 92 Harv L R 353, esp at 357.
2.  On these two approaches and other concepts of law generally a good background is available online at the Stanford Encyclopedia of Philosophy.
3.  See Rhetoric and Rule of Law: A Theory of Legal Reasoning, (Oxford: Oxford U P, 2005).  In my PHD dissertation I looked at both of these as part of what I identified as a primary constitutive tension in law, of  'inherent indeterminacy', see Between Principle and Practicality: A Dynamic Realist Examination of Independence in the Canadian Justice System, at Chapter 2.












Tuesday, June 27, 2017

Rub-a-Dub-Dub: Stare Decisis & Judicial Independence in R v Gashikanyi (2017 ALTA CA)

Rub-a-Dub-Dub
Three (men, maids or fools) in a tub
And who do you think they were?
The butcher, the baker, the candlestick maker...

- Old Nursery Rhyme

1.     Introduction

     Are Canadian judges no different than butchers, bakers and candlestick makers? 

      This question, referring to an old nursery rhyme, was posed by a judge in the 2017 Alberta case of R v Gashikanyi.  The case also raises interesting questions about the complicated role of stare decisis in Canada's common law legal system and judicial independence.  This blog briefly examines the case and discusses judicial independence in the context of these issues, especially in light of some critical obiter comments made in the case. 

     I conclude that the case highlights a basic ambiguity in the function of precedent, that independent judicial authority  to assign judges may be subject to review, and that diversity in the assignment of judicial cases generally is a factor that should be acknowledged and supported more explicitly in Canada.

2.     Background Facts

      This case involved a sentence appeal for a criminal conviction of sexual interference with a minor of two years less a day.  The majority of the three-judge Court of Appeal panel allowed the appeal contrary to a couple of precedents.  In its previous 2016 decision in R v Hajar, a majority of a five-judge panel of the Alberta Court of Appeal established a 'starting point' of three years in sentencing for major sexual interference crimes (para 40).  However, in Gashikanyi Justice Berger considered the reasoning behind this 'starting point' (paras 37 - 48), and concluded that the earlier 2016 decision was wrong (para 52). 

     Justice Berger also found that 'starting points' practically constrained "the discretion afforded to sentencing judges" (para 19). Here the judge quoted with approval his own earlier judgment in R v Lee, where he found that the promotion of 'starting points' to the level of legal imperatives was a serious legal error (para 22), because they operate improperly "as a form of mandatory prescription for the imposition of minimum sentences below which sentencing judges fear to tread" (para 34).

     The majority also did not follow the holding in the earlier Alberta case of R. v Arcand  (para 52).  That case is jurisprudential authority in Alberta for the proposition that Courts should respect the principle of horizontal stare decisis, which is that appellate courts should follow their own precedents (para 2). Ultimately, Justice Berger determined that the lower court decision in Gashikanyi, imposing a custodial sentence well below the starting point, should be upheld. (para 67).  Justice O'Ferrall concurred in the result in separate reasons (para 76).  Justice Rowbotham for the dissent would have both allowed the Crown's appeal, and imposed an higher custodial sentence (para 89).

      Following his holding in the case, Justice Berger also made extensive obiter comments about the stare decisis and raising a potential criticism of how judges may be perceived to be assigned to cases at the Alberta Court of Appeal (paras 68 - 75).  For example, in contending that panels should be randomly composed of judges of diverse viewpoints, he said (para 72),

     "Judges are no different than butchers, bakers, and candlestick makers. All are human  beings with different backgrounds and life experiences, different views of the world, and different philosophies."

     Justice O'Ferrall concurred in the result, but did not accept Justice Berger's critical comments about the exercise of judicial assignment authority, which he described as "implicit in the office" of the Chief Justice (para 87).  The third judge on the panel, Justice Rowbotham, also rejected the contention that cases at the Alberta Court of Appeal were not randomly assigned (para 114), and dismissed the proposition that legal decisions may be the product of the sensibilities of individual judges, and therefore not impartial (para 115), "in the strongest possible terms" (para 117).

3.      Discussion
    
     Given Justice Berger's unusually explicit and direct criticisms of the Court and judicial administration in Alberta, it is perhaps understandable that the decision in Gashikanyi has become the subject of some discussion, see here.  Aside from the tenor of Justice Berger's remarks, the issues in the decision raise several interesting points about precedent and the nature of judicial independence in Canada, examined below.

i)    Vertical and Horizontal Stare Decisis - A Tempest in A Teapot

      While seemingly straightforward, the principle of stare decisis is actually pretty complicated in a couple of ways.  I've noted before its temporal complexity, see here, but stare decisis also has an added degree of structural complexity, especially as it operates within Canada's legal system.  On the one hand, precedent is 'vertical' in the sense that lower courts are usually considered bound by the decisions from higher up the adjudicative hierarchy.  On the other, Gashikanyi highlights the variable nature of horizontal stare decisis in Canada, which involves court decisions at the same or a similar level and whether they are binding. 

     The traditional approach, set out in the 1944 British decision of  Young v Bristol Aeroplane Co. LTD (CA), allowed for only limited exceptions to horizontal stare decisis.  This strict approach has been complicated within the context of Canada's highly decentralized federation.  There are potentially many possible horizontal precedents in Canada, because there are multiple appellate level bodies of comparable authority across the country.  As Debra Parkes describes in her excellent article on the nature of the principle, other aspects of horizontal stare decisis in Canada are similarly unsettled and dynamic (pp 154 - 159).

     A derivative question in Gashikanyi is raised by the practice of panels of three judges deferring to decisions of larger panels within the same provincial appellate Court.  While this appears as the norm in Alberta, it's also a relatively new refinement to precedent, that Professor Parkes notes has now been recently adopted in other Canadian jurisdictions (pp 154 - 155).  The general practice of smaller panels of judges deferring to larger panels, in Alberta or elsewhere, seems consistent with general rules of precedent.  But overall a strict adherence to horizontal stare decisis appears instead to be slowly giving way to a more "liberal, functional approach to overruling in provincial courts of appeal" (p 154).

     No precedent is ever wholly binding on a judge anyways.  All judges can avoid being constrained by past decisions through the legal technique of  'distinguishing' a case, see eg, Paul (now 'Justice') Perrell's  article, "Stare decisis and techniques of legal reasoning and legal argument."  Consequently, and as I argue in my recent PhD, while our legal system tends to promote the idea of legal predictability and stability, the operation of stare decisis within the common law also contains a substantial (and I would say necessary) degree of inherent indeterminacy (see esp Ch 2).  One can never be absolutely sure that a precedent will apply, or apply in the same way, in any legal case.

     Given this, Justice Berger's recent determinations and remarks about the operation of precedent are really a bit of a tempest in a teapot in my opinion.  While not following some established precedents, Justice Berger's comments and decision fit readily within constitutionally recognized independent right of individual judges, to not follow what is apparently settled law, by using widely accepted approaches to legal reasoning.

ii)   Judicial Assignment Authority

   The far more interesting legal issue raised in Gashikanyi, is the question about the operation of judicial assignment authority. Here, Justice Berger's comments suggest that there is, at least, the appearance that Court of Appeal judges are not assigned randomly to panels, but rather based on their approaches to the law.  This is the point of Justice Berger's allusion to the nursery rhyme, which is meant to suggest that explicitly random judicial assignment better respects a potential diversity of legal perspectives.  This issue has at least 2 dimensions.

     The first dimension of Justice Berger's comments highlights the nature of the judicial assignment authority.  The implication of Justice Berger's comments, that the composition of judicial panels are, or may be perceived to be, manipulated to favour certain jurisprudential outcomes is a little troubling.  Since the 1989 Supreme Court of Canada decision in McKeigan v Hickman, assignment of judges and cases has been considered to be a part of the administrative authority of the judicial branch of government.  This authority which has been accorded constitutional protection as part of the independence of the judiciary in Canadian jurisprudence, in a line of cases starting with the 1985 Supreme Court decision in Valente.

      However, as I've recently noted in the context of a proposed requirement for judicial education currently before Parliament, see here, the principle of judicial independence is conditional.  In this instance judicial administrative authority for assignment and scheduling in the court system likely also has some limits and may be subject to review, see eg Wachowich v O'Reilly.   If this precedent also applies in the context of the issues in Gashikanyi, then the Court may not have an absolute discretionary authority in this area.  It is not clear if there is any evidence to support Justice Berger's criticisms (see eg para 114 of the decision).  However, possible limits on this aspect of judicial independence could mean that either assignment practices, or their appearance as the case may be, could also be subject to additional scrutiny in the future.

     The second dimension goes to the heart of law, legal reasoning and the role of judges.  Do the legal philosophies and prior experiences of judges make a difference in their decisions?  Are judges mere technicians who apply the law, as suggested in more formal approaches? From yet another alternative 'realist' viewpoint, should judges take into account a wide range social and other factors?   Justice Berger's comments seem to suggest an inclination towards the latter view, but the foregoing are only a few of several big questions raised by his obiter dicta comments.

     In my view, the kinds of uncertainties raised by these questions are a large and vital part of the law.  I discuss this issue in detail in my dissertation, noted above, and will discuss this in further detail in a future blog.  Suffice to say for the moment that the commitment by many to law's apparent stability can sometimes make discussion about its more ambiguous and unpredictable nature difficult.  In fact, some refuse to acknowledge the uncertainty and reject it outright.  Like Justice Rowbotham's dissent in Gashikanyi (para 117) for example, many would dismiss the bald assertion, that judgments could be affected by a judge's background, as improperly challenging the presumption of judicial impartiality.  To be fair though, these questions raise deep and longstanding issues, which touch on the very essence of what is law and how we identify it.

4.      Conclusion

     The critical obiter dicta comments in this case raise some concerns about how precedent operates in Canadian law. While the idea of common law precedent is pretty simple, this case highlights one aspect of the complicated nature of stare decisis.  Ultimately, as a matter of horizontality, the operation of one of the most basic principles of our legal system still remains unclear.  In this case though, because judges can use legal reasoning techniques like 'distinguishing' cases, the majority decision to reject some Alberta precedents was not pivotal to the outcome of the decision in Gashikanyi.

     Another issue touches on the institutional independence of the Court and in particular the operation of the judicial authority to assign judges to cases.  It is not entirely clear if the judicial authority to assign individual judges is subject to review.    However, as it has developed in Canada, judicial independence is not an absolute principle. Given its importance as a public value, some of the more worrisome implications of Justice Berger's comments should likely be further addressed in some fashion. Whether in this or in some future case, there is some authority in Canadian law to suggest that judicial assignment may not be totally insulated from external scrutiny in any event.    

      On a final note, regardless of how these specific issues are resolved in Alberta, the case illustrates a profound question about impartiality in the legal system.  Should the backgrounds and experiences of judges be considered in assigning cases?   By comparison, these personal factors seem to be considered of some current importance with respect to the appointment process of the federal judiciary, see eg here.  Perhaps it's also time to acknowledge that the diverse background and ideological perspectives of judges is also a strength in the assignment of individual cases, which should be more explicitly acknowledged and supported.

     

Sunday, June 4, 2017

Issues In Imposing Criminal Costs Raised by the 2017 SCC Decision in Jodoin


1.         Introduction

     This blog looks at the Supreme Court of Canada’s 2017 decision in Quebec (Criminal and Penal Prosecutions) v Jodoin, ("Jodoin").  The main issue in the case was the capacity of the Court to impose costs on criminal defence counsel.  In addition to describing the case, this blog critically examines the Court’s determinations and highlights a few points of concern in the Supreme Court’s reasoning, including the distinctions drawn by the court in terms of its own inherent powers to manage lawyers compared to law societies.

     The blog also questions the Court’s description of  ‘guideposts’ for seeking costs in criminal matters and considers several possible implications arising from the decision.  This includes the possibility of seeking costs from the Crown and some potentially unfortunate side-effects, which may either hinder judicial economy or discourage forceful advocacy by criminal defence counsel in the future.  While this case raises a number questions and concerns, it fits within a line of jurisprudence that is continuing to develop a distinct Canadian approach to the principle of Bar independence.  

2.         Background to the Case
     Mr. Jodoin was an “experienced criminal lawyer” (para 2) who filed two series of motions alleging bias against two different judges on the same day. The 1st set of writs would have resulted in a postponement of the hearing (para 5), but for the fact a different judge ended up hearing the matter and the motions were put aside. 

      The new judge attempted to begin the proceeding, but defence counsel objected to calling an expert witness on the basis that he had not received required notice and that he had not been able to examine the expert’s resume (para 6).  The presiding judge permitted the adjournment, but only until after the lunch break, during which time defence counsel drew up a 2nd set of writs challenging jurisdiction, and also alleging judicial bias (para 7).  The matter was subsequently adjourned and the Crown sought costs

      The Quebec Superior Court found the lawyer's actions to be unfounded, frivolous and of questionable legal value (para 9).  The Court determined that Jodoin’s actions represented a “deliberate” and “serious” abuse of the justice system at (para 11).  For its part, the Quebec’s Court of Appeal upheld the judgment disposing of the writs of prohibition, but set aside the costs award against the defence counsel.  While it acknowledged the power of the court to award costs in criminal matters, it found that the instant case did “not have the exceptional and rare quality” sufficient to attract such a sanction (para 14).

3.         Discussion of Supreme Court Judgment
     The majority of the Supreme Court, led by Justice Gascon, upheld the Superior Court decision to award costs against the lawyer as a “deliberate abuse of the judicial system” (para 3).  Though such awards are rare, the high court agreed that these circumstances represented an “exceptional” case that satisfied the criteria applicable (para 4).  In reaching this conclusion the Court raised several notable issues, which are examined below.

i)                                 Inherent Powers & the Primary Role of Law Societies?

     Though the Court found the power of the courts to impose criminal costs was ‘settled’, it later devoted several paragraphs to explaining the scope of the Court’s “inherent jurisdiction” on this issue(para 21). The Court also discussed the powers of courts and law societies to manage lawyers.  Here, the majority noted that Canadian law societies play a “primary” role of “public protection” (para 22), which is a wording choice that raises some issues.

     The Court’s focus on ‘public protection’ contrasts with the more usual jurisprudential description of legal regulators to act in the ‘public interest’.  In at least some jurisdictions the statutory mandate to act in the ‘public interest’ though, is something that is relatively recent, see discussion of this point e.g., here.  As I’ve noted before, this description of lawyers and legal regulators acting historically in the public interest is also flawed in the sense that it ignores a long and complicated history, where the law, lawyers, judges, and the court system have all sometimes demonstrated a mixed record in the advancement of public values, see here.

     In addition, the role of law societies is usually regarded in the context of broader principles like rule of law.  In this sense, though authorized by statute, Canadian law societies are usually not regarded principally as government bodies dealing with public or consumer protection.  More frequently, they are described as democratic associations that historically have acted as intermediate institutions between governments and citizens, see e.g. here.  Consequently, the Court’s identification of ‘protection’ as a law society role, but also as its primary purpose, is potentially a significant variance from the traditional view, which could presage a new emphasis on legal regulators as governmental bodies, akin to other kinds of administrative consumer protection tribunals.

ii)         ‘Preventative’ vs ‘Reactive’ Roles of Courts and Law Societies?

     The court also distinguishes more clearly its role in legal professional regulation.  While other courts have suggested the role of law societies to regulate the profession is unqualified (see e.g. the OCA 2016 decision in Groia at para 102), the Supreme Court describes the ‘preventative’ role of the courts to protect the administration of justice.  By contrast, it also describes the complementary role of law societies as “reactive” (para 22)

     On this point not a lot of detail is provided to define what the Court sees as appropriately within the scope of the “reactive” role of law societies.  However, the Court immediately jumps to what at first appears as something of a non-sequiter, since it does not actually seem to be a current issue in the case, when it says subsequently, “there is nothing to prevent the law society from exercising in parallel its power to assess its members’ conduct and impose appropriate sanctions” (para 23).  

     However, the court’s assertion about the “parallel” power of the law society may strategically speak to that same issue, the respective roles of the law society and the courts, that will likely be considered in the future Groia litigation.  There, a substantial position of the dissent opinion was that the management of in-court proceedings is exclusively within the constitutional authority of the judiciary.  The Supreme Court’s comments on the “parallel” authority of law societies in Jodoin could thus be read to pre-empt that future line of argument in the Groia appeal, currently scheduled to be heard in November 2017.

iii)        Guideposts For Imposing Costs?

     The Court also provided what it called two ‘guideposts’ for cost awards.  For the 1st guidepost the Court distinguished between awards of costs in civil and criminal proceedings.  Here, the Court observed that in criminal proceedings awards of costs are purely punitive (para 31).  The Court also contrasted the role of civil lawyers to promote dispute resolution in contrast to the more adversarial role of criminal defence counsel to challenge (para 32).  While in many cases the distinction drawn by the Court might be valid, the contrast between the relative adversarialism of criminal defence and civil litigation lawyers seems incomplete.  That is, arguably there are plenty of civil counsel who, despite their obligation to promote resolution, can be just as adversarial and zealous as their criminal defence counsel colleagues.

     The 2nd guidepost described by the Court suggests that it is not appropriate to consider the lawyer disciplinary record in imposing costs (para 33).  Here the majority suggests, courts should only consider whether or not the lawyer was acting in bad faith.  This point by the Court would perhaps have been more persuasive if in later discussion it had not in fact raised the prior record of the lawyer and discussed it (paras 46 – 48).  However, to be fair, the Court notes it was not raising the prior record as improper evidence of a general propensity or bad character, but instead as admissible evidence of the respondent’s state of mind when he filed the proceedings (para 48).

     Though not addressed in the decision, a further guidepost that would have been helpful is whether or not the principles for seeking costs in criminal matters also apply to seek costs from the Crown. The last few years have seen a shift in the willingness of courts to allow for the review of the professional behaviour of prosecution lawyers.  This has included the movement away from the traditional view, that Crown exercises of discretion were unreviewable, to a less strict position that some Crown behaviour may be subject to scrutiny by the regulator and the courts, including exercises of prosecutorial discretion and trial management authority, see e.g., my comment on this issue here. 

     It is presently unclear whether or not the same guideposts for the imposition of costs would apply in a criminal case involving a Crown counsel.  However, there appears to be nothing in the reasoning of the decision that would preclude it, and the possibility that Crown Attorneys could be similarly responsible for costs would be consistent with the broader trend towards increased scrutiny of Crown behaviour in Canadian law.

iv)        The Dissent and the Appeal to Judicial Economy

     In Jodoin the Court found the lawyer’s conduct “particularly reprehensible” motivated by an attempt to postpone, rather than based in sincere belief as to the merits of the writs of prohibition (para 42).  In this case the lawyer’s behaviour warranted an extraordinary response since his conduct was “for a purely dilatory purpose with the sole object of obstructing the orderly conduct of the judicial process”.

     The dissent took issue with this characterization of the lawyer’s behaviour in this case.  Here they pointed out that the applicable rules actually had entitled the lawyer to an adjournment.  The dissent also noted the hearings judge had wrongly suggested Jodoin had already examined one of the witnesses.  In this respect, the dissent concluded that while the incident could “easily be seen as an error of judgment”, it was “hardly one justifying a personal costs order” (para 74).

     A curious aspect of the majority’s characterization of the lawyer’s behaviour is its further appeal to judicial economy to justify imposing a costs award.  Here, Justice Gascon noted the Supreme Court’s recent widely publicized decision in Jordan which “emphasized the importance of timely justice and noted that all participants in the criminal justice system must co-operate in achieving reasonably prompt justice” (para 56).

      The point of the majority seems to be that permitting potentially frivolous proceedings to pass without consequence risks further burdening an already overtaxed system.  However, as noted by the dissent, the lawyer’s behaviour in this case, though perhaps injudicious, was not entirely unwarranted.   Given these circumstances, the decision in Jodoin raises the question of the Crown’s capacity to raise and successfully seek costs awards against forceful defence advocates in the future.  Ultimately, in my view this may have two alternate, but equally unfortunate side-effects.

     On the one hand, it is hard to see how recognizing the Crown’s authority to seek costs in criminal matters is going to speed up the justice system.  In this respect, imposing costs on criminal defence counsel was previously unusual.  If the Crown attempts to seek costs more frequently as a result of this decision, it may well increase the amount of court resources used to address this issue.  On the other hand, if instead this decision has a ‘chilling effect’ on criminal defence counsel and causes them to hesitate to raise novel or unique legal and procedural challenges, then this decision will be detrimental, not only to all criminal defendants, but to the rule of law itself in our justice system.

4.         Conclusion
     The Jodoin case fits within a line of decisions refining Canadian approaches to lawyer independence and law society regulation over the last few years. This includes the 2017 Supreme Court decision in the professional lawyer disciplinary case of Green v. LSM, which I commented on prior to its hearing at the Supreme Court last fall. Green ultimately lost that appeal, in which the provincial law society sanctioned him for not complying with his mandatory CPD obligations. 

     Interestingly, in both Green and Jodoin, Justices Abella and Coté joined together in dissent to support the views of an individual lawyer facing sanctions for his professional behaviour.  The arguments of the dissent and majority in these cases may well set out the fault lines for future determinations by the Supreme Court on these kinds of legal questions. 

      Further cases in this series will likely include the Groia decision, which will consider many similar issues, as well as the upcoming hearing involving Trinity Western University, which will also consider the institutional role of law societies. Ultimately, despite some unanswered questions and concerns about the decision, the recent Supreme Court of Canada decision in Jodoin falls well within this line, which is dynamically shaping a unique approach to both the individual and institutional independence of the Bar in the Canadian legal system.