Don’t Piss Off the Crocodile

As promised, I have some comments on the B.C. Supreme Court decision striking down hearing fees, which I summarized here yesterday. In fact I’ll have a lot of comments, too many for just one post. I start off today with some thoughts on what I take to be the main line of argument in Justice McEwan’s judgment: the claim that the imposition of the fees is a violation of the separation of powers, encroaching on the superior courts’ protection by the judicature provisions of the Constitution Act, 1867, and violating the principles of the Rule of Law and the independence of the judiciary.

There is a saying (in Russian anyway) that one should not piss off a crocodile before having swam across the river. Now imagine that you’re constantly swimming in that river, back and forth. You really, really don’t want to piss off the crocodile. That seems to be the message implied and to some extent explicit in Justice McEwan’s decision. The river, that’s the courts. The government, and specifically the Attorney-General, is the guy always swimming there. And the crocodile, well, that’s Justice McEwan himself (and presumably his colleagues too).

In fact, as the BC Injury Law Blog reports, all the crocodiles in the river were already quite unhappy before this particular fight came about. But now, this crocodile is mad as hell. The government thinks the river is about to burst its banks because there are too many people going in there. It has decided to build bridges (i.e. steer litigants away from the courts―in private or judicial mediation,  settlement programs, etc.) and to charge people for going into the water. The longer they stay there, the more they need to pay. But this is not really, or at least not primarily about the money. “Cost recovery is only the secondary purpose of the fees according to the AGBC. The first is rationing court time. ” (Par. 309). That, says the crocodile, changes the nature of the river. And the river is his, not the government’s, so he won’t stand for it. Continue reading “Don’t Piss Off the Crocodile”

One’s Day in Court: Priceless?

In 1998, British Columbia started charging litigant stiff “hearing fees” for each day of a civil trial. Last week, Justice McEwan of the B.C. Supreme Court issued a monster of a judgment declaring them unconstitutional. The decision is very interesting for all sorts of reasons, but it is also abusively long. Fortunately for you, I have read it – well, much of it – so you don’t have to.

Before getting into the substance of the case, I want to say a few words about the decision; specifically, about its length. First, the facts: about 175 pages; 432 numbered paragraphs, many of them including multi-paragraph block quotations; more 70 000 words. That’s the length of a mid-sized novel. For a judgment, well, jugement-fleuve is a polite way of saying it. Perhaps it is a severe case of ‘I didn’t have the time to write a short decision so I wrote a long one’, except that it took Justice McEwan more than two years to produce it. Be that as it may, judges impose limits on the length of written submissions by lawyers. They should impose the same limits on their own work. Justice McEwan  makes much of the courts’ work being for the benefit of the public. It’s not when the product is of such length that no reasonable member of the public can be expected to read it. (I’m not exactly a reasonable member of the public. But I must admit that I barely skimmed the restatement – I cannot call it a summary – of the parties’ submissions, which runs for something like 250 paragraphs. I did read all of the judge’s analysis though.)

Now to the case. The facts are simple. A couple separates, and there is a dispute over whether the plaintiff, who wants to move back to Spain, can take their daughter with her. They go to trial, unrepresented by lawyers, and the trials takes up 10 hearing days. The plaintiff is hit with a “hearing fees” bill of over 3500$ (some of which the defendant might have to cover). The fees are so high, in part, because they are imposed on a sliding scale – the longer a trial is, the higher the fee imposed for each additional day. She cannot pay, and asks the court to relieve her. The court might do this by finding her to be “indigent”. Indigent litigants have traditionally been exempt from having to pay court fees. But, Justice McEwan insists, ‘indigent’ means really, really poor. So poor one can’t afford to pay a $100 filing fee, for instance. “It is an awkward word to use to describe a middle class family’s inability to pay a month’s net salary for the two-week ‘rent’ of a courtroom” (par. 26). The exemption does not apply. The only way the plaintiff can get out of having to pay is if the fee is unconstitutional. That’s what the decision is about.

There are at least three strands of argument running through Justice McEwan’s reasons. He does not distinguish them, but they are in fact quite different. One is that the fees infringe an individual right – access to justice, the right to have one’s day in court. Another is that there is something wrong with a chooser-user-payer model of government services; a court is a public service, and should be available to all, regardless of ability to pay. The third – and I think the most significant for Justice McEwan – is that the imposition of the fees proceeds from and results in a redefinition of the courts’ role by rationing access to courtrooms and trying to steer dispute settlement to other venues. This, in Justice McEwan’s view, subordinates courts to the legislature and violates the separation and equality of the branches of government.

All of these reasons lead Justice McEwan to conclude that hearing fees are unconstitutional because they violate unwritten constitutional principles and the federal division of powers. Limiting access to courts runs counter to the Rule of Law. It is also undemocratic because court participate in the elaboration of law, and going to court thus amounts to participating in the democratic process (which is not limited to voting). A redefinition of the courts’ role, especially one that limits people’s access to courts, is beyond of provincial powers over “the Constitution, Maintenance, and Organization of Provincial Courts” under subs. 92(14) of the Constitution Act, 1867. Justice McEwan did not consider the applicability of the Charter, which was also raised in argument.

Well, that’s enough for a summary, though this only skims the surface of the judgment. I will have some comments tomorrow.

What Makes a Judge Great?

Most students of law – not just law students – probably have a favourite judge, or judges. Someone whose judicial performance – his or her decisions and opinions – we regard as outstanding and exemplary. But what is it that makes a judge great? Or, more modestly, what makes a judge good?

There several ways to think about this, as Lawrence Solum argues in a number of papers, for example this one. An obvious one is to say that a judge is good because he happens to agree with you, or you with him or, to put the point more generally, to make adherence to some standard of substantive justice or to some decision-making procedure, whatever you happen to find most attractive. So if your preferred standard of substantive justice is a commitment to civil liberties, you will think that Justice Fish of the Supreme Court of Canada is great. If your favoured decision-making procedure is looking for original intent, you will be an admirer of Justice Scalia of the US Supreme Court.

Another way of thinking about judicial excellence, which Lawrence Solum advocates, is in terms of “judicial virtues” (and vices). A good judge is one who has the peculiar virtues the judicial office requires; an excellent judge is one who has these virtues to an exceptional degree. But what are these virtues? Solum lists quite a few in his various papers on the topic:

(1) incorruptibility and judicial sobriety; (2) civic courage; (3) judicial temperment and impartiality; (4) diligence and carefulness; (5) judicial intelligence and learnedness; (6) judicial craft and skill; (7) justice; and (8) practical wisdom.

(I am lifting the list from the abstract of an essay called “A Tournament of Virtue.”)

Richard Posner, in his book on How Judges Think, has a list of judicial vices, some (but perhaps not all) of which are the opposites of some of Solum’s virtues. Posner observes that

[o]ne cannot be regarded as a good judges if one takes bribes, decides cases by flipping a coin, falls asleep in the courtroom, ignores legal doctrine, cannot make up one’s mind, bases decisions on the personal attractiveness or unattractiveness of the litigants or their lawyers, or decides cases on the basis of “politics” (depending on how that slippery word is defined).

The problem, as Solum recognizes, is that many of these virtues are strongly contested.

Take one that might seem obvious: justice. For one thing, it has a range of meanings, from the very thin “natural justice” (consisting of two Latin maxims, audi alteram partem and nemo judex in causa sua), to Aristotelean equity (knowing when to make an exception to a too-general rule), to the always contested substantive visions of justice. But even justice’s being a judicial virtue is sometimes denied, perhaps most famously by Oliver Wendell Holmes who, according to Learned Hand, responded to the latter’s exhortation to “do justice” by sternly observing that that was not his job. And Justice Holmes would, I suspect, make anyone’s list of judicial greats. The one great stain on his name, his angry, heartless “[t]hree generations of imbeciles are enough” opinion for the majority in Buck v. Bell (upholding a law providing for forced sterilization of “mental defectives”) is, it seems to me, a failure not so much of justice as of empathy or of detachment from one’s ideological commitments.

There might be other ways of thinking about judicial greatness too, not captured by the theories I have so far discussed. For example, we might think that a great judge is an original thinker (one reason I admire Justice Beetz, for example), or a particularly good writer (one reason, though of course not the only one, Lord Denning is everybody’s favourite). I don’t think that either originality or literary talent are necessary to be a good (as opposed to excellent) judge, so I would hesitate to qualify them as judicial virtues.

The moral of the story, if there is indeed a story here and if it actually has a moral, is that judicial greatness, as greatness in anything else, is probably impossible to define in any way that would not generate serious disagreement. But that’s precisely what makes trying to define it, and coming up with lists of greats, so entertaining, isn’t it?

Federal Court Roulette

Professor Sean Rehaag of Osgoode Hall has recently posted on SSRN a disturbing statistical analysis of the Federal Court of Canada’s decisions on applications for judicial review of refugee protection determinations by the Immigration and Refugee Board. His main conclusion, based on a study of more than 20,000 cases filed between 2006 and 2010, is that there shocking variations in the rates at which individual FCC judges grant leave for such applications to be heard on the merits (with one judge granting almost 80% of leave applications, and several in over 25%, while for some others, the rate is below 5%), or allow the applications on the merits (with several judges allowing over half of the applications they hear, while many others allow less than 20%). Having clerked at the FCC (for a judge who, on both scores, is somewhat less favourable than average to the applicants), I have to admit that I had no idea that these variations would be so large. I knew that different judges had different approaches to these (as well as any other) cases, but the extent of the disparities is startling.

Prof. Rehaag thinks that leave is not granted often enough, and that in the perfect world the requirement to seek leave would be abolished legislatively or, failing that, declared unconstitutional. If that’s not possible, he suggests a number of other reforms that would make obtaining leave easier. My anecdotal experience makes me wonder if he is right. The experience is one-sided, because I was not at all involved in leave decisions (nor were, I believe, any other clerks). But among the couple dozen merits cases I worked on (including reviews both of refugee status determinations and of other IRB decisions), there certainly were some where the leave grants looked very soft. Nonetheless, prof. Rehaag’s numbers show that applications on which leave is granted by “generous” judges are not necessarily less likely to succeed on the merits than those granted by more “stringent” ones, which means that he seems to be right that many applications that have merit are thrown out simply because the judge reviewing them at the leave stage was a “stringent” one.

Whatever one thinks of the FCC’s overall treatment of immigration cases – whether one is convinced that it is insensitive to the immigrants’ and refugees’ plight, or that its judges are a bunch of pro-fraudster obstructionists, as Jason Kenney apparently believes, one ought to be distressed at these findings of inconsistency between the court’s members. For my part, having had the privilege of interacting with some of them and helping in their work, I am convinced that they are decent, conscientious, and hard-working people. But the fact that conscientious, hard-working people seem to fail so miserably at producing consistent results, to which, I am sure, they would all agree they aspire, is all the more disturbing.  As prof. Rehaag writes, judges are only human, and some discrepancies between individual approaches are inevitable, but surely not such glaring differences.

The Court of Public Opinion

What is the place of the court of public opinion in the judicial hierarchy? Sometimes, courts of justice are in effect sitting in appeal of judgments of the court of public opinion. This is perhaps the case in defamation cases, and most obviously in cases involving judicial review of the constitutionality of legislation. But sometimes the court of public opinion is higher than the highest courts of justice. A story  reported by Radio-Canada is instructive.

Lassonde, The makers of the Oasis juices sued the makers of “Olivia’s Oasis” soaps to try to prevent them from using this name and to recoup their profits from such use as had already occurred, alleging that the mark was confusing. It lost. But the trial judge not only rejected the suit; in addition, upon a request made by the defendant’s lawyer at the end of the trial, the judge ordered Lassonde to pay the defendant $125,000 – $25,000 in punitive damages, and $100,000 in extra-judicial fees – on the basis of a provision of the Code of Civil Procedure which allows courts to sanction “improper” actions or pleadings. The trial judge found that

[p]laintiffs, using their economic power and experience used a shotgun approach to attack Defendant simultaneously on several fronts with their full might, attempting by the present proceedings to intimidate and thwart Defendant from its legitimate use of its trade name and trade-mark. Obviously Plaintiffs expected that, given the threat which the action represented to Defendant’s very corporate existence, given that Defendant was still a fledgling business, given the projected cost of such proceedings and, given the obvious disparity in the respective power and resources of the parties, that Defendant would retreat and succumb to their demands, and cease using its mark and change its corporate name or, perhaps would ensure its survival and avoid an economically and resource draining battle by signing a licensing agreement with Plaintiffs – as others have done in the past.

Lassonde appealed against this portion of the judgment, and won, in a unanimous decision by the Québec Court of Appeal. The court points out that there was no evidence of bad faith on the part of the appellants, who simply acted consistently with the usual practice in such cases. Besides, there was no evidence to justify the amounts of the damages set by the trial judge (who, indeed, went beyond what the plaintiffs had asked on this point).

End of story? No. La Pressed seized on the story, in a “David against Goliath” report unabashedly sympathetic to the soap-maker which does not once present Lassonde’s position or the views of a lawyer on what constitutes standard practice in such cases. Lassonde’s Facebook page, says Radio-Canada, was deluged with negative comments and even calls for boycott by minor celebrities. Whereupon it swiftly capitulated, and agreed to pay the $125,000.

Thus in a few hours the court of public opinion heard and allowed an appeal from the Québec Court of Appeal, without minding such troublesome technicalities as listening to the other side or looking for evidence of allegations on which a claim is based. And in this instance, its judgment is not subject to appeal.