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
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).
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.
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.
Tuesday, June 27, 2017
Sunday, June 4, 2017
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 CaseMr. 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, 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 JudgmentThe 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. ConclusionThe 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.