The Role of Judges

Head Table Guests

Mary Lou Benotto, Partner, Chappell, Bushell, Stewart and a Director, The Empire Club of Canada; Bryan Finlay, Q.C., Partner Weir & Foulds; Francois Rolland, Partner, Martineau Walker; Jane Pepino, Q.C., Partner, Aird & Berlis; The Hon. David Smith, P.C., Q.C., Chairman, Fraser & Beatty; Dennis O'Connor, Q.C., Partner, Borden & Elliot; The Hon. Mr. Justice Robert Sharpe, former Dean of University of Toronto Law School, now Justice of the Ontario Court (General Division); The Hon. Roy McMurtry, Q.C., Chief Justice of Ontario Court of Justice; His Eminence G. Emmett Cardinal Carter, C.C., Archbishop Emeritus of Toronto; Julie Hannaford, Partner, Borden & Elliot and 1st Vice-President, The Empire Club of Canada; Paul Lamek, Q.C., Partner, Genest Murray; Earl Cherniak, Q.C., Partner, Lerner & Associates; The Hon. Mr. Justice D. Carruthers, Ontario Court (General Division); The Hon. Madam Justice Kathy Feldman, Ontario Court (General Division); and The Hon John Morden, Associate Chief Justice of Ontario.

Introduction by John Campion

Job's Cry to Gallileo

In the cool, wet desert dawn of a middle-Eastern morning, a man lay dying in pain, suffering from an inglorious and unknown malady. The pathways for a cure were clouded in a mist of inadequate science. He endured his incapacity without comfort. He felt that life and his God had abandoned him. He called out:

"Let me but call a witness in my defence. Let the Almighty state his case against me. If my accuser had written out his indictment I would not keep silence and remain indoors."

So cried a Jewish man named Job in the pre-dawn of Western culture. In his extremis, he had chosen a legal metaphor to express his cry for help. At the centre of this very personal, and arguably commonplace but heroic experience, the notion of a charge, a trial and necessarily a judge, stands central in our culture.

Similarly, each great epochal transformation in the history of the Western mind appears to have been initiated by a kind of archetypal sacrifice. As if to consecrate the birth of a fundamental new cultural vision, in each case, a symbolically resonant trial and martyrdom of some sort was suffered by its central prophet. Thus: the trial and execution of Socrates at the birth of the classical Greek mind, the trial and crucifixion of Christ at the birth of Christianity and the trial and condemnation of Galileo at the birth of modern science.

In each of these four grand events, there was fundamental to it, a trial and a judge.

In our age and time, major issues have been played out in a courtroom and before a judge:

1. the role and dignity of women in the trial of Queen Caroline in the 1820s;
2. cultural and political prejudice and expediency in the trial of Alfred Dreyfuss;
3. the enduring Canadian theme of ethnic and linguistic differences in the trial of Louis Riel;
4. the debate between accepted faith and the philosophical pre-eminence of modern science in the Scopes trial in the United States in the 1920s;
5. the scourge of ethnocentric dictatorship and violence at the trials at Nuremburg, in Rwanda and elsewhere in the world;
6. the remnants of Colonial oppression in the trial of Nelson Mandella; and
7. the abortion debate in the trial of Dr. Henry Morgenthaler.

Each of these passionate courtroom events illustrates the enduring significance of the trial and the seemingly mysterious but broadly accepted role of the judge in our society.

Many Canadian judges are not known to the broad public. They and their predecessor judges have laboured somewhat anonymously in the service of the public, imposing the rule of law on a case-by-case basis. Accepted wisdom would have that this key role of the judge was unchanged from Socrates to Morgenthaler.

And yet, we know that change is upon us. The harbinger of change may be the O.J. Simpson trial. Judge Lance Ito no longer has the benefit of anonymity. He is playing out his role and exposing the entire judicial system to the unforgiving and intimate scrutiny of a soap opera and tragedy in full public view. The mystery is disappearing. The process seems excessive and flawed. The trial is less about guilt and innocence and more about racial politics. This trial may be the beginning of a new popular cultural vision brought on by technology.

Whatever the long-term significance of the Simpson trial, it raises to renewed prominence, the role of the trial and the judge in our society.

The Chief Justice of Canada represents the best of the old traditions of a sober and intellectual independence. His training was carefully chosen and extensive. He graduated from the University of Montreal in 1956. As a lawyer, he practised and taught criminal law. He was active in the governance of the profession, is a founder of the Association of Defence Attorneys for Quebec, National Chairman of the Criminal Justice Section of The Canadian Bar Association and a Member of the Disciplinary Board of the Quebec Bar.

He was appointed to the Superior Court in the Queen's Bench of the Province of Quebec in 1969; Vice-Chairman of The Law Reform Commission of Canada in 1971; member of the Board of Directors of Canadian Human Rights Foundation in 1974; Chairman of The Law Reform Commission of Canada in 1976; the Court of Appeal of Quebec in 1978; the Supreme Court of Canada in 1980 and Chief Justice of Canada in 1990.

He is a member of the Privy Council of Canada, Deputy Governor General, Chairman of the Canadian Judicial Council, Chairman of the Advisory Council of the Order of Canada and has received distinguished awards for his contributions to society, including an Honorary Fellow of the American College of Trial Lawyers and Honorary Doctorates from the Universities of Moncton, Ottawa, Montreal and Toronto. It is with great respect and pleasure, I ask you to welcome The Rt. Honourable Antonio Lamar.

Antonio Lamer

Mr. Chairman, distinguished guests, I am pleased to be able to take part in your series on Law and Society. I believe that a skilled, dedicated and independent judiciary is a central element in a healthy democracy. I also believe that the judicial branch of government is probably the least understood. Although I think there is plenty of' evidence to support that conclusion, one recent study perhaps clinches it. The study found that, notwithstanding the similarity between my ceremonial attire and that of Santa Claus, more Canadians could name Santa's reindeer than could name the 9 judges of the Supreme Court. I congratulate you for providing opportunities in this series to promote better knowledge and understanding of our judicial system and indeed of our system of justice more generally.

I am proud of our judiciary and of our system of justice. This is not a pride based on ignorance of the challenges or of the problems. I am not here to give you some utopian view expressed in platitudes. I am here to speak about the importance of the role of judges, to give you very briefly the basis for my pride, and to share with you very candidly some of the challenges and problems which confront us.

I approach my task with optimism and confidence. I find it very encouraging and comforting that the Canadian public has great interest in the courts and a strong commitment to public officials conducting themselves properly and legally. The public is intolerant of injustice--consider the reaction to wrongful conviction. The public wants and expects its officials to act within the law and to be treated like everyone else when they do not. The conduct of everyone working in public institutions is scrutinised according to very high expectations. In short, the public wants a just system of government based on the rule of law.

Why do I find this encouraging? The answer is simple, but important to our society. The Courts exist for the public. Their ultimate purpose is to protect and vindicate everyone's rights and freedoms in a system based on the rule of law. The public interest and expectation that I have just described is a sign that the rule of law is a vibrant force in the community; that the desire for justice according to law is a strong public aspiration. It is in the spirit of our people. This is good news, because that sort of interest and aspiration is essential to maintain the rule of law--law applicable to every person, regardless of status. This, in turn, is essential to the preservation of democracy itself. As Chief Justice Dubbin put it so well recently:

"The rule of law is not one good amongst many, but is indispensable to a free and democratic society."

I believe that public interest in the courts is increasing. This is a by-product, probably the inevitable by-product, of the way that the role and responsibility of the courts have evolved over the last 26 years that I have been a judge.

Unlike England, we have never had a pure system of parliamentary supremacy in Canada. Our federal system makes that impossible. Where, as in Canada, the power of Parliament and of the legislatures is limited by assigning certain matters to one and certain to the other, there has to be a way of obtaining an authoritative determination of what those limits are. In Canada, that role has been assigned to the Courts. In other words, our courts for a long time have been in the business of ruling on the legality of laws passed by our elected representatives.

Then, in 1982, came the Charter of Rights and Freedoms. As a result, the responsibility of the Courts in this area was greatly expanded. The Charter means that courts not only have to decide whether the federal division of powers has been respected; it requires legislation to be tested against broadly worded guarantees of fundamental rights. The result is that Courts are required to adjudicate a new range of debates about fundamental questions: What is equality before the law? Is a particular law demonstrably justified in a free and democratic society? These are Charter questions which courts must answer. And the answers are not in the back of the book.

Given these new responsibilities, enhanced public interest is not at all surprising. It is also not surprising that the nature of these new responsibilities is not well understood. Some people speak as if these new responsibilities under the Charter are simply the instruments of judges seeking more power. Nothing could be further from the truth. The judiciary did not seek these responsibilities and we certainly did not assign them to ourselves. They were given to, indeed imposed upon, the judiciary by the politicians. It was a job given to us, either deliberately or by default, by the democratic process. As for the suggestion that judges intrude into the legislative sphere, the truth is that many of the toughest issues we have had to deal with have been left to us by the democratic process. The legislature can duck them. We can't. Think of abortion, euthanasia, same sex benefits, to name a few. Our job is to decide the cases before us properly, to the best of our abilities. We can't say we are too busy with other things or that the issue is too politically sensitive or set up a royal commission. We do our duty and decide. How doing this is somehow undemocratic, as some claim, is, quite frankly, beyond me. Perhaps part of the explanation is that in 1980 the public debate was focused on patriation, the amending formula and the guaranteeing of rights in the Charter. The inevitable re-adjustment of the relationship between courts and legislatures was not at the centre of debate. I was on the Supreme Court at the time and was both surprised and concerned that there was so little apparent consideration given to this shift of responsibilities.

The decisions of judges are the subject of considerable public attention. This is as it should be. Sometimes the attention is well informed and sometimes not. From the public perspective, the courts do not just decide a case. The case itself often serves another public purpose. It provides a platform to draw attention to important questions of public policy--an occasion to debate an issue. The questions the court was called upon to answer get lost. Some people are quite ready to comment on court decisions without either reading or understanding them. More significantly, perhaps, the whole legal context of the dispute is missing. Sometimes the case becomes a vehicle for publicity as much as a dispute about the law.

What must not be forgotten is that the judge's fundamental duty is to decide the questions before the court impartially, independently and according to law. A judge cannot approach a case as a legislature would. The scope of the judge's decision is defined by the question submitted by the parties. The answer which the judge gives is constrained and dictated by the legal context in which the dispute arises. This is an element that so often is lacking in public discussion of judicial decisions. Consider, for example, the issue of assisted suicide. One often hears it said that a majority of the Supreme Court is opposed to assisted suicide, as a result of the Rodriguez decision. But that way of describing the case misses the whole legal context in which the Court was called upon to rule. The legal issue was whether Parliament may, under our Constitution, make assisting suicide a crime. There was no suggestion that Parliament was prevented from making the opposite decision. That is what the Court had to decide, not whether assisted suicide was a social good. The difference is more than a semantic quibble; it goes to a point of fundamental importance about the role of judges.

A second aspect of the role of the judge is closely linked to the first. A judge's obligation is to decide, independently and impartially, according to his or her best judgment, what the law requires. The nature of that duty makes its exercise likely to attract controversy. This is especially true when the dispute involves constitutional guarantees of fundamental rights. The basic reason for such guarantees is that the popular will cannot always be relied on to protect the rights in question. In other words, the protection of these rights may sometimes be unpopular in the short term. This is not to say that judges are always right, or that they should try to be unpopular, or even that the unpopular decision is always right. But it is important to remember that judges are not in the business of making decisions with the objective of pleasing as many people as possible. Judges are in the business of deciding difficult questions according to law, whether it pleases or not. A high level of public interest, or even deliberate pressure tactics, must not distract a judge from this fundamental duty.

There is a difference--an important difference--between having public confidence over the long term and being popular. Some judicial decisions are inevitably unpopular; that does not mean they are wrong or that the jury did not do his or her duty. Of course, public interest in the courts, debate about what is just, and how well courts do their job, are all important in a democracy. But we must remember that the role of the judge is to decide, to give judgment, and to be faithful to the rule of law--not to make propaganda.

This is why honest and accurate coverage of the decisions of courts is essential. And that can be achieved only if adequate resources are made available to cover the courts and if those who do the covering are competent and fair. As in any other area, specialisation and experience are also important. Reporters need a chance to learn how to cover justice issues--a process that takes time and the opportunity to cover the area in depth. There must also be enough space and time devoted to these matters so that reports that start out as accurate and fair are not published in so truncated a form that they lose those qualities.

Courts increasingly recognise that they need to be of more help to journalists. I have raised with my colleagues on the Canadian Judicial Council the question whether there are not more ways in which the judiciary collectively could be helpful, perhaps by offering courses or seminars for journalists. The Canadian Journalism Foundation has some promising initiatives under way, and I believe we should be supportive of serious efforts to improve the quality and quantity of reporting about the work of the courts. Specialised fellowships are another idea and it may be that the legal profession--law firms, corporate law departments and so on--can be of help.

So I welcome public interest in the courts and in what judges do, even if sometimes that interest is not well-informed or well-directed. It is nonetheless a true sign of health in a democracy. What better news could there be?

All of this means that the quality of the judiciary is extremely important, as are our efforts to maintain and enhance that quality.

Of course, one of the most important factors is the process of appointment. That is a matter for the elected representatives, not for the judges, but no discussion of quality of the judiciary can start anywhere else. This fundamental point should never be forgotten.

After appointment, the two areas of judicial responsibility are conduct and continuing education. With respect to conduct, I can speak to you with intimate knowledge of the federally appointed judiciary, because I preside over the Canadian Judicial Council, which has the statutory responsibility to receive complaints about federally appointed judges. I believe we have an excellent complaints record. With about 1000 federally appointed judges, we get only a handful of complaints alleging misconduct each year. Of course, we get lots complaints from the losing parties that the judge must have been pretty stupid because they didn't win. But real misconduct is very rare.

This is not say our process is perfect. We have commissioned a major study of conduct process and many other issues, which study we will receive late this summer. When we receive it, we will examine its recommendations systematically, issue by issue, to determine what might improve our conduct process and what might not. We are also developing, for the first time in Canada, a Code of Conduct for federally appointed judges. No doubt these are important and useful steps, and there are valuable changes to be made. But that should not detract from the core message that the conduct of our judges is exceptionally good.

There are also important developments in continuing judicial education--the second key area to ensure high standards among those who have been appointed to the bench. It is obviously crucial that judges are able to stay up-to-late and improve their skills. There has been great emphasis on training in equality issues, particularly pertaining to race and gender. When I became a judge in 1969, there was nothing like this. As one senior colleague put it, all a new judge got was a Bible and a pencil. Now every newly appointed judge gets materials and videos on family violence and race relations, and has access to training opportunities we could not even have dreamt of 25 years ago.

To conclude, let me touch on one of the greatest challenges facing us. I refer, of course, to the combined effects of pressure of work, delays and the expense of litigation. There is a great deal of effort being expended to try to address these problems. But I believe that much more public concern is essential for the discovery of the solutions to many of our problems.

Since I became Chief Justice in 1990, I have been inciting the legal community to wage war on delay in the Courts. While there is a long way to go, a lot has been accomplished. Delays have been reduced in many courts across Canada and innovative programmes have been put in place to provide quicker and more economical dispute resolution. All of that said, there are still some tremendous problems.

Like so many other areas in the public sector, resources are scarce and the workload is increasing. Public expectations of service are not always matched by the commitment of public funds. Delay and expense in litigation are not under the sole, or even the primary, control of the judiciary, but I can tell you the judiciary is doing everything it can to try to improve the situation. These efforts have been successful in many areas.

I will give just a couple of examples. On the civil side, there are success stories with pre-trial procedures. Pre-trial conferences have been found to contribute significantly both to the settlement of actions and to the narrowing of issues so that precious court time is saved. The use of summary trials and mini-trials also helps considerably to reduce the time it takes to get a case heard and decided. The success of these techniques has required changes to the Rules of Court, training for judges in pre-trial techniques and genuine desire on the part of lawyers and their clients to get the case resolved. On the criminal side, one example of good news is in the provincial courts, that is, the courts presided by judges appointed by the provinces. I meet with representatives of all the provincially appointed Chief Judges each year. At our meeting this year, I was happy to learn that in most provincial courts, delay is well within acceptable levels and in several courts there is no undue delay. In several courts, the situation has improved markedly over the last few years.

Public interest and concern here are vital to ensure that adequate tools are given to the courts to allow them to function effectively. There are a lot of dedicated people trying to make things better. Too often they are not getting the tools they need. More resources would not solve all of our problems, but they would solve some of them. Public expectations are very high--in some cases much higher than the level of resources devoted to the task. As Chief Justice McMurtry said recently, quoting Chief Justice McRuer, the administration of justice is too often the poor cousin of government. The justice system is like a fire station: It cannot decide, simply because the resources are not there, to answer only every second call. The system must cope as best it can. We must use scarce resources wisely. But I also hope that our commitment of resources matches our expectations. This hope is more likely to be realised when the public interest in their courts and their justice system is strong and well-informed.

I also believe that we need to assess aspects of our system at a more systemic and institutional level. Some trials are so long that one wonders whether the process will not collapse under its own weight. How can society expect jurors to devote months of their lives to jury service on very long cases? How can a jury absorb and apply instructions on the law that go on for days? Does our thoroughness, at times, place substantial justice out of reach? Of course, the process must be fair, but so must be the result. Do we run the risk, at times, of concentrating on micro justice so that we lose sight of macro justice?

I think our greatest challenge over the next several years will be to cope with complexity and prolixity in legal,, proceedings. We must find ways to retain a fair process, but in the context of a process that can achieve practical results in a reasonable time and at reasonable expense. If ways to do this cannot be found, I fear that our legal system will become simply irrelevant for most purposes. Moreover, if we do not rise to the challenge of complexity and prolixity, will we not be forced to re-examine fundamentally our trial process? May we not, for example, reach the point at which some might question, in a way probably somewhat appealing to the general public, whether the jury trial demands too much of our fellow citizens who must serve on the jury? Might not this, in turn, lead us to conclude that, in our free and democratic society, some limitation is not only necessary, but justified? Of course, I would rather see us adapt and reform our process rather than ration it. But fundamental to achieving that goal will be keeping the process manageable and practical. To meet this challenge will require tremendous imagination and great public interest.

My concluding thought is simply this: Our system faces important challenges. Well-informed public interest in the justice system is not only essential for a strong democracy, but the necessary starting point for needed reforms.

The appreciation of the meeting was expressed by The Hon. Mr. Justice Robert Sharpe, former Dean of University of Toronto Law School, now Justice of the Ontario Court (General Division).