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January 24, 2001

'Think that ye may be mistaken'

Ian Hunter
National Post

There is sometimes more common ground between opponents and proponents of judicial activism than either side readily acknowledges. This was made clear in the National Post's special report on the Supreme Court of Canada in Monday's paper.

There may be a handful of know-nothings living in a cave somewhere who deny any scope for judicial creativity, but I have not met them. Whatever law is (and philosophers have debated that issue at least since Plato's Academy), it is more than an abstract set of rules, a "brooding omnipresence in the sky," awaiting only discernment and application to a given set of facts. If law were no more than that, justice would be utterly predictable and often unbearable.

So judging, of necessity, is a more human and uncertain process than feeding facts into a computer. It is as much art as science. A judge must consult conscience and intuition no less than reason in reaching a just decision. No rational person denies that.

But there are those who contend that a judge should follow conscience wherever it leads, that he or she should refuse ever to be bound by the arthritic grip of precedent, venturing forth instead wherever justice (in our time, often indistinguishable from ideology) leads. Madam Justice Claire L'Heureux-Dubé, to judge by her own extrajudicial pronouncements, would appear to fall into this category.

In between these two schools are fantasists who imagine the whole problem would vanish if only Parliament could be induced to legislate clearly. Perhaps clarity would be improved if law had its own language, like mathematics or music, but I doubt it. And even if absolute clarity were attainable, it would be undesirable. People are entitled to read and understand the laws that govern their liberty and property. No matter how technical legal language became, it could never anticipate and provide for all the cases that the random chaos of human affairs throws up.

The law tells drivers to exercise due care and attention; it does not tell them what that means. It leaves that to a judge. Why? Because there is no way of saying beforehand precisely what a driver should do or not do until all of the particular circumstances of the case have been proved.

So what does a judge do? He or she reads the statute, tries to find out how Parliament intended the words to be applied. He or she looks to see how other judges, in similar cases, have interpreted the same or similar words. At each stage of this process, there is scope for creativity.

Having recognized that, the conservative says the judge must decide the case on the law. He must not substitute his own view of what the law should be. Why not? Because then we no longer have government by the people's representatives, but government by judges; we would no longer live under the rule of law, but under the law of judges.

Learned Hand was a great American jurist. Born in 1872 (his grandfather was the majestically named appeals court judge, Augustus Hand), Learned was educated at Harvard Law School, then appointed to the bench at the callow age of 37. Forty years later, he was asked what had most influenced his judicial career; he replied: "Oliver Cromwell's words before the Battle of Dunbar: 'I beseech ye brethren in the bowels of Christ, think that ye may be mistaken.' " These words, Learned Hand went on, should be inscribed above "every church, every courthouse, and every crossroads in the nation."

On May 14, 1935, Learned Hand spoke on the topic: How far is a judge free in rendering a decision? Although his conclusion was uttered more than half a century ago, I have not seen it improved upon: "The judge must always remember that he should go no further than he is sure the government would have gone, had it been faced with the case before him. If he is in doubt, he must stop, for he cannot tell that the conflicting interests in the society for which he speaks would have come to a just result, even though he is sure that he knows what the just result would be. He is not to substitute even his juster will for theirs; otherwise it would not be the common will which prevails, and to that extent the people would not govern."

A decision like Latimer is an example of the Supreme Court taking to heart Learned Hand's advice; unfortunately there have been many Supreme Court decisions (M v H. Vriend. and Marshall to name but three) in recent years where Learned Hand's words stand as an indictment of the court's decision.

Ian Hunter is professor emeritus in the Faculty of Law at the University of Western Ontario.

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