Inappropriate Remarks

Justice Abella should be criticized, not praised, for her comments on Donald Trump

In a widely noted (for example in this report by Colin Freeze for the Globe and Mail) commencement address given in the United States, Justice Abella has castigated “narcissistic populism” and, more broadly, what she perceives as the abandonment of a global commitment to human rights, independent institutions, and the Rule of Law. While the academics quoted by Mr. Freeze, and others, are either cheering Justice Abella on or at least think that these comments were acceptable, I disagree. Mrs. Abella would be perfectly free to engage in political commentary, but Justice Abella is not. That she did not recognize this calls her judgment into serious question.

It is quite obvious to anyone who has had the misfortune of following the news in the last year that the “narcissistic populism” quip refers to Donald Trump. Sure, Justice Abella did not utter his name. She did not need to. Populism in general is a broad (and worrying) phenomenon. But the reference to narcissism is a pointed one. Justice Abella was not speaking about Bernie Sanders, or even Marine Le Pen. (Her other remarks presumably did not only concern Mr. Trump ―  though I doubt she was thinking about Mr. Sanders.)

Unlike Justice Ginsburg of the US Supreme Court, who criticized Mr. Trump (by name) last year (at a time when his election to the presidency seemed impossible), Justice Abella wasn’t commenting on the potential head of a branch of government co-ordinate with that of which she is part. To that extent, she wasn’t compromising the separation of powers. Yet that doesn’t mean that her remarks were compatible with her judicial role. The United States are a relatively frequent litigant before the Supreme Court of Canada. Since Justice Abella’s appointment, they have been a party to seven cases decided on the merits, and to almost 20 additional leave applications in which she was involved. (These are mostly, though not quite exclusively, extradition matters.) There is no particular reason to think that there will no more such cases while Justice Abella remains on the Court. And so long as she does, and Mr. Trump remains president of the United States, it seems to me that questions about Justice Abella’s impartiality could be raised.

When I criticized Justice Ginsburg in a blog post for the CBA National Magazine last year, I noted that those whose unbridled admiration for her encouraged her injudicious behaviour had to take some of the blame:

As [Josh] Blackman has pointed out, “[o]ver the past few years, [Justice] Ginsburg has been showered in … sycophantic adoration” by those on the political left who see her as the pre-eminent judicial champion of their values. Prof. Blackman hypothesizes ― correctly, I suspect ― that the adulation got to Justice Ginsburg, to the point that she came to think that “she could do no wrong.” She may also have come to think that the public stood in dire need of her warnings about Mr. Trump, even though, as Paul Horwitz has observed, “her remarks [were] essentially conventional, unexceptional, and banal.” While I do not wish to absolve Justice Ginsburg, I think it is important to also blame those whose flattery has at least contributed to her developing such a high opinion of herself. Four centuries ago, Francis Bacon wrote that “those, that engage courts in quarrels of jurisdiction … are not truly amici curiae, but parasiti curiae, in puffing a court up beyond her bounds, for their own scraps and advantage.” The same goes, I think, for those who encourage judges to overstep their proper role in extrajudicial contexts. It is perhaps unfair to call parasiti people among whom sincere admirers no doubt outnumber self-interested sycophants, but the sincere contribute no less than the two-faced to corrupting the very person they love so much. There is nothing wrong with admiring a judge, or for that matter a politician. But if you well and truly wish him or her well, never tell yourself, and by all that you hold dear, never tell him or her, that the person you admire can do no wrong. Coming to believe that one can do no wrong ensures that one will.

The same lesson applies, I suspect, in the case of Justice Abella. As Mr. Freeze notes, she has become something of a judicial celebrity, and indeed “[e]arlier this year, Justice Abella received a ‘global jurist of the year’ prize.” I am afraid such things are not very good for sitting judges. Justice Abella’s injudicious remarks not only deserve criticism, but also show that she needs it.

Raising Issues

Normally, a common law court decides a case brought before it on the issues raised by the parties. But sometimes it can ― and occasionally even has to ― raise an issue on its own. When it can do so, and how it must go about doing this are the main topics discussed in R. v. Mian, 2014 SCC 54, which the Supreme Court decided last week.

The case was an appeal from a decision on a voir dire to exclude incriminating evidence because it took the police more than 20 minutes to inform Mr. Mian of the reason for his arrest, and still longer for them to inform him of his rights. The Alberta Court of Appeal, however, was concerned about a question which the defence lawyer asked one of the police officers involved during cross-examination. The Crown hadn’t objected to the question at the time, and didn’t raise the matter in its submissions on appeal, but the Court of Appeal invited the parties to make written submissions on the matter and asked them to address it at the hearing, eventually allowing the appeal on the basis that the judge of first instance had failed to recognize the question’s impermissibility and that it influenced his reasoning. And so the main question for the Supreme Court was whether the Court of Appeal was right to raise this issue on its own.

As a general matter, says Justice Rothstein, writing for the unanimous Court, appellate courts may raise new issues. But it is a power they must exercise sparingly.

First though, it is important to understand what does and what doesn’t count as a new issue. Justice Rothstein explains (at par. 30) that

[a]n issue is new when it raises a new basis for potentially finding error in the decision under appeal beyond the grounds of appeal as framed by the parties. Genuinely new issues are legally and factually distinct from the grounds of appeal raised by the parties … and cannot reasonably be said to stem from the issues as framed by the parties.

However, questions asked at oral argument do not necessarily raise new issues, whether they address “components of the grounds of appeal put forward by the parties,” including by probing them in greater detail and by raising sub-issues, “or … go outside of those grounds in an aim to understand the context, statutory background or larger implications,” which “may be necessary for the court to gain a more complete understanding of the issues at hand” (par. 32). A further category of issues that will not be considered as “new” are those “that form the backdrop of appellate litigation, such as jurisdiction, whether a given error requires a remedy and what the appropriate remedy is the standard of review” (par. 34). The idea here seems to be that since such issues can arise on any appeal, “parties should not require notice to address them” (par. 34).

If it identifies a “new” issue, an appellate court must decide whether to raise it for the parties. The two competing considerations here are the integrity of an adversarial system that lets the parties make their own cases and, crucially for Justice Rothstein, thereby allows “judicial decision-makers remain independent and impartial and are seen to remain independent and impartial” (par. 39), and the need to actually do justice under the law, which sometimes requires intervening into the adversarial debate. Balancing these considerations, Justice Rothstein concludes that an appellate court may raise a new issue only if failing to do so will risk an injustice, and only if it can do so without appearing biased. He explains that “[o]f essence here is that courts cannot be seen to go in search of a wrong to right” (par. 42).

Failing to raise an issue will risk an injustice when “there is good reason to believe that the result would realistically have differed had the error not been made” (par. 45). But, Justice Rothstein cautions, there will not often be good reason to think so. While this can happen more frequently when one of the litigants is self-represented, “[i]t will only be in rare cases that counsel on both sides will have failed to identify an issue that would realistically have affected the result” (par. 48). In addition, the appellate court must be sure of having the jurisdiction to consider the issue, of having a sufficient factual record on the basis of which to do so, and of being able to avoid imposing a “procedural prejudice” (par. 52) on one of the parties.

To avoid procedural injustice, an appellate court “must make the parties aware that it has discerned a potential issue and ensure that they are sufficiently informed so they may prepare and respond” (par. 54), whether the response is written, oral, or both. At all times, “natural justice and the rule of audi alteram partem will have to be preserved” (par. 59). And, while courts should be careful to avoid giving the impression, in the notice they give to the parties, of having prejudged the issue, it is not necessary, save in rare cases, for a judge or panel who raised a new issue to recuse themselves.

Practically, this is all logical, sensible stuff, although I think there is some tension between Justice Rothstein’s suggestion that an appellate court may intervene in the adversarial process when it sees a risk of error that affects the outcome, and his claim that such cases will be very rare. Is the claim really right? Is it the case that lawyers will seldom miss material issues? I hope that this is indeed so.

On a theoretical level though, I wonder whether Justice Rothstein is right that the reason why courts should be reluctant to raise new issues is the danger of appearing biased. That’s surely a part of it. But I would have thought that no less, and perhaps more, important is the need to limit judicial power. As Fabien Gélinas argues in this fascinating paper, various rules that prevent courts from considering issues ― such as the rules on standing, ripeness/mootness, and justiciability ― all serve to circumscribe the courts’ power, justifying the well-known description of the judiciary as the “least dangerous branch” of government. I thought that the presumption against raising new issues serves the same purpose. Justice Rothstein suggests otherwise.

Be that as it may, he goes on to find that in this case, there was no need to raise the issue of the impermissible cross-examination question. It was not as significant as the Court of Appeal made it out to be, and Crown lawyers clearly did not think it was. The Court of Appeal should not have second-guessed them.