Globe and Mail

Many judges uneasy with Charter powers

Expanded role creating 'crisis of legitimacy'

Tuesday, December 22, 1998
KIRK MAKIN
Justice Reporter

Half of the most powerful judges in the country are uneasy with their new role as lawmakers, and even more -- two-thirds -- worry that their closely guarded independence is in jeopardy, according to a survey of appellate judges.

Their ability to strike down and refashion laws has created a "crisis of legitimacy," although virtually all of them have come to accept it, according to the first-ever survey of senior judges who hear appeals.

Judges view the chief threats to their independence as "some interest groups, overzealous politicians and administrators, and journalists more interested in a sensational story than an accurate one," says a book by five political scientists titled Final Appeal, which is based on the survey results.

"The threats are often attributed to those who do not appear to appreciate the importance of judicial neutrality," says the book by political scientists Ian Greene, Carl Baar, Peter McCormick, George Szablowski and Martin Thomas.

More than 100 of the 125 judges who make up the courts of appeal in each province, the Federal Court of Appeal and the Supreme Court of Canada agreed to be interviewed anonymously for the survey.

The Supreme Court of Canada had its own viewpoint on both the new role for judges and their independence. Only one judge was concerned about the perception of lawmaking efforts, but six of the seven who responded felt their independence was threatened.

The authors said their surprise mounted steadily at the extent to which subjective discretion permeated even the most boring and run-of-the-mill cases.
They quote one appellate judge as saying: "After the Charter gave the judges the right to strike down a statute, altering the common law was a piece of cake."

Some judges also expressed unhappiness that a handful of provincial attorneys-general openly criticize court decisions. They were also concerned about the manner in which politicians or bureaucrats irritated by particular judgments can manipulate court funding.

"More than one judge reported an impression that provincial governments had cut back on administrative support services to the appellate courts because they were unhappy about the direction of appellate court decisions," the book says.

"The fact that two-thirds of Canadian appellate judges perceive threats to their independence is cause for concern."

Other revelations in the book:

Some judges are worried about the power that chief justices wield to discipline individual judges. They said that under certain circumstances, they "would feel pressured to stay on their chief's good side, for example, by supporting his or her point of view in hard cases where the court was split."

Many appeal-court judges are frustrated by the number of separate, concurring decisions the Supreme Court of Canada has produced in recent years. They say that by not signing their names to a single, majority decision, the Supreme Court is confusing litigants while at the same time diluting the value of its jurisprudence.

The Quebec Court of Appeal and Ontario Court of Appeal appear to lag significantly behind other appeal courts in clearing criminal appeals off their case lists.

Out of the scores of judges interviewed, only one said he would refuse to ever depart from legal precedents set by the Supreme Court. The rest said they can get around Supreme Court precedents when they feel the need to by "distinguishing" their case. However, 25 per cent of the judges went so far as to "openly admit that they would not follow a Supreme Court precedent they considered would result in injustice," the book said.

The party appealing a criminal case wins 33 per cent of the time. The success rate of the Crown is striking. It wins 64 per cent of its appeals, while the accused person wins only 26 per cent. This is particularly marked in Ontario -- where the Crown wins 74 per cent of cases it appeals -- and in Nova Scotia, where it wins 85 per cent.

Judges prize fairness, compassion and collegiality as the most important traits a colleague can have. "One-dimensional lawyers, law professors or trial judges who neglect their families and have few interests outside of law were not considered good candidates for a career as an appellate court judge," the book says.

Appellate judges tend to look down on colleagues who take too long to produce written judgments as well as "prima donnas" who write too many separate but concurring reasons in majority decisions.

The authors found that while most judges spend a great deal of time preparing for each appeal, they cannot hope to read all the written material in advance.

The role of judges changed dramatically in 1982, when the Charter of Rights and Freedoms thrust on them the job of measuring laws against the fundamental rights laid out in the Charter.

In the years since, judges have frequently been called upon to weigh the legitimacy of laws that govern everything from abortion to gay rights, enforced retirement and the artistic merits of lap-dancing.

The authors of Final Appeal conclude that since the arrival of the Charter, Canadian judges have moved from near-universal resistance to the idea of being lawmakers to an almost total acceptance of it as an integral responsibility.

JUDICIAL FINDINGS

The following excerpts are from Final Appeal, Decision-making in Canadian Courts of Appeal:

"We asked the judges if the judges on their court could be divided into philosophical groups. A third said yes (a small-l liberal versus small-c conservative split was often mentioned), and only two judges said no. However, half said that they can't be neatly classified because the philosophical issue changes for each case. A judge might be a 'liberal' on human rights issues, and at the same time might be a 'conservative' on criminal law matters. The key point is that personal values do make a difference."

"It was most certainly the case prior to the charter that nearly all Canadian judges resisted a lawmaking role for the courts. . . . They espoused the legal positivist school of thought that good judges merely interpret the law. It is striking how quickly and completely this traditional view has faded: all but two appellate court judges now admit to having at least some lawmaking role. However half were clearly uncomfortable with this newly visible role. . . ."

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