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.

A Pull Towards Goodness?

WARNING: This post is an adapted version of a passage in my “candidacy paper,” which is meant eventually to be part of the first chapter of my dissertation. Caveat lector.

***

Explaining their decisions is an important part of the judges’ work. It is valuable for all sorts of reasons. It forces judges to be honest – not just with the parties and their colleagues, but also, and perhaps most importantly, with themselves – about the issues at stake and the reasons that lead them to resolve the issues this way or that. It reassures the parties that the court has listened to their arguments and given them some thought, even if it ultimately rejected them. It makes judicial decisions more public, more transparent, and more amenable to criticism (and eventually reform). In these different ways it also disciplines the judges – it forces them to produce decisions that are more legally sound, because they address the relevant legal issues and materials. But could it do even more?

Some theorists, notably Lon Fuller, have argued reason-giving can make judicial decisions not merely legally sounder, but also better on some substantive criterion. As Fuller wrote in the context of his famous debate with H.L.A. Hart, “when men are compelled to explain and justify their decisions, the effect will generally be to pull those decisions toward goodness.”  (Lon L. Fuller, “Positivism and Fidelity to Law-A Reply to Professor Hart”, (1958) 71 Harv. L. Rev. 630, 636 .) In a similar vein, in an interesting (and/but incredibly romantic) essay on the role of the judge in relation to the corpus juris, especially in a common law system, Sarah M.R. Cravens contends that, as part of “virtuous judging,” reason-giving can help “take decision-making beyond simply the legally correct” and “is a component of a larger cycle that defines, develops, and achieves justice.” (1643)

Is that right? I am very skeptical, despite my sympathy for the view of law, and especially the common law, as inherently valuable and good. Fuller might just be right that reason-giving cannot lead “toward a more perfect realization of iniquity,” (636) because iniquity dares not speak its name, although we know that it does sometimes, as for example in Justice Holmes’ opinion in Buck v. Bell, which I described as “angry [and] heartless” here. But there is a great deal of disagreement about what iniquity is, and even more about what goodness or justice are, making it impossible to say whether reason-giving, or any other practice, actually helps realizing them. One way around this problem is to say, as Prof. Cravens seems to, that goodness or justice are to be found within the four corners of the legal system itself, so that reason-giving helps achieve them merely by situating judicial decisions within the system, but surely many will dispute that the our legal system, as it currently exists, is substantively good or just.

The most that can be said is that the existence of a legal system, or more specifically of a body of law comprising and connecting individual judicial decisions, is itself valuable and good, as for example Jeremy Waldron argues in his essay on “The Concept and the Rule of Law.” Fuller (and probably prof. Cravens) would agree with that claim, but his (and her) view goes rather beyond it and, much as I admire him, I cannot follow him there.

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?

Emergency Wiretaps and Privacy Rights

Well, the Supreme Court of Canada has great timing. Or maybe I do, but saying that would be immodest, right? In any case, the day after I wrote that the Court latest privacy decision was a mess, it has released its decision in R. v. Tse, 2012 SCC 16, addressing the conflict bewteen the right to privacy protected by s. 8 of the Charter and s. 184.4 of the Criminal Code authorizing warrantless interception of private communications by a peace officer if

(a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained … ;
(b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and
(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.

The Court’s decision is unanimous, and authored by its two newest members, Justices Karakatsanis and Moldaver. The Court holds s. 184.4 unconstitutional, because it does not create any mechanisms by which the peace officers engaging in warrantless wiretapping can be held accountable. Parliament now has a year to re-write the legislation to bring it in conformity with the Charter.

Generally speaking, warrantless searches (including interceptions of private communications) are contrary to the Charter. But they can be justified in emergencies. The question in this case, says the Court, is whether s. 184.4 “strike[s] a reasonable balance between an individual’s right to be free from unreasonable searches or seizures and society’s interest in preventing serious harm?” The Court spends a considerable time on clarifying the interpretation of s. 184.4, ensuring that it remains a narrow and exceptional source of authority, to be used only in circumstances of “dire emergency.” It also expresses concern at the fact that this authority might be conferred on too many people – not only police officers but other “peace officers”, including mayors and prison guards. But since this case implicates police officers, there is no record on the basis of which to conclude that this renders s. 184.4 over-broad.

The trouble with s. 184.4, says the Court, is that, unlike other provisions allowing interception of private communications, its use is subject to no after-the-fact accountability measures. At least one such measure, disclosure to the parties whose communications were intercepted, is constitutionally required. Others, such as reporting to Parliament and record-keeping would be welcome, but are not necessary. In its present form, s. 184.4 does not meet the requirements of s.8 Charter. Furthermore, it cannot be saved under s. 1, since a less restrictive measure – a similar provision incorporating after-the-fact notice requirements – is easily available to Parliament.

Seems like a good decision to me. Interestingly, expectations of privacy do not feature at all in the Court’s analysis. It does not ask itself whether it is generally expected that infringements of our privacy will be reported to us. It simply holds that that the Charter requires that they be. Perhaps this is one way out of the problem which so bothered Judge Kozinski and about which I wrote yesterday. Still, courts cannot operate in a vacuum. When they ask themselves whether a search of seizure is “unreasonable,” they bring their, and society’s, expectations to the table. We cannot count on courts to protect our privacy to a much greater extent than we want it protected.

Privacy in the Past, Present, and Future

Our own actions – individual and collective – set the upper limit of our privacy rights. We will never have more privacy rights than we care to have, although we often have fewer. One stark illustration of this idea comes in Isaac Asimov’s short story “The Dead Past,” in which a group of scientists build and, despite the government’s best efforts, thoughtlessly disseminate the instructions for building a “chronoscope” – a machine for viewing any events in the (recent) past. Their original purpose was historical research, but the chronoscope is not very useful for that; what it is very good for is snooping and voyeurism. The story ends with the government official who tried and failed to stop the protagonists wishing “[h]appy goldfish bowl to you, to me, to everyone.”

The internet, especially Web 2.0, is (almost) as good as the chronoscope, argues Alex Kozinski, Chief Judge of the U.S. Court of Appeals for the 9th Circuit, in a short essay published in the Stanford Law Review Online. It also allows everyone to learn all about anyone, provided that the person – or indeed someone else – posted the information on the internet at some point. And the fact that people share their every thought and deed online shapes society’s expectations of privacy, which are the key to what constitutional protections we have in this area. Those parts of our lives which we do not expect to be private are not protected from observation at will by the government. And if we do not expect anything to be private, then nothing will be.

“Reasonable expectations of privacy” are also key to defining privacy rights under the Canadian Charter of Rights and Freedoms. The Supreme Court’s latest engagement with the question of just what expectations of privacy are reasonable, in R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, produced something of a mess. The issue was whether the installation without a warrant of a device that measures the electricity consumption of a house breached the owner’s reasonable expectation of privacy. Four judges said no, because general information about electricity consumption does not reveal enough to make it private. Three said no because the law entitled to owner to ask the utility not to hand over such information to the police, and he had not exercised this right. Two said that the information was private. But what seems clear is that for Canadian law too, what we think about our privacy and what we do about it, individually and collectively, matters.

Are we then doomed, as Judge Kozinski suggests we might be? Perhaps not. With respect, his claims are a little too pessimistic. Judge Kozinski collects a great many frightening anecdotes about people’s willingness to wash their – and others’ – dirty laundry in public. But anecdotes seldom justify sweeping conclusions. And some studies at least seem to show that people do care about their privacy more than the pessimists assume,  if not always in ways or to an extent that would satisfy the pessimists. Old expectations of privacy might be fading, but new ones could emerge, along different lines. Judge Kozinski is right that the law cannot do much to protect people who do not care. But we must hope that he and his colleagues, as well as legislators on both sides of the 49th parallel, will be mindful of the possibility that changes in privacy expectations can go in both directions.

Purely Hypothetical Dragons

Everyone knows that dragons don’t exist. But while this simplistic formulation may satisfy the layman, it does not suffice for the scientific mind. …  The brilliant Cerebron, attacking the problem analytically, discovered three distinct kinds of dragon: the mythical, the chimerical, and the purely hypothetical. They were all, one might say, nonexistent, but each nonexisted in an entirely different way.*

Stanislaw Lem, The Cyberiad

Much of the Conservative government’s legislative programme seems driven by fear and distrust of judges. Such reactions to judicial decisions are often justified by concern about “judicial activism.” But judicial activism is something like the dragon of constitutional theory. It doesn’t exist, although its distinct kinds nonexist in entirely different ways. Or so I am tempted to conclude after reading an exchange at the Volokh Conspiracy (which, by the way, is 10 years old today) between prof. Orin Kerr and prof. Randy Barnett.

Prof. Kerr argues that the expression “judicial activism” can have a variety of meanings, some of them more interesting than others. A decision can be described as activist if 1) it rests on the judges’ personal (including political) views; 2) it expands the power of the judiciary vis-à-vis the other branches of government; 3) it departs from settled precedent; 4) it strikes down a statute or an administrative decision; or 5) it is wrong. Prof. Kerr believes that the meanings 1) to 3) are useful because “the terms allow us to have a useful debate about the proper role of the courts.” On the other hand, 4) and 5) are to be avoided; the former, because everyone (in the US, but I suppose this is mostly true for Canada too) agrees with (some) judicial review, the latter, because we don’t agree about what decisions are right.

Prof. Barnett responds by arguing that given its multiplicity of meanings, useful or otherwise, the term “judicial activism” is best avoided – but not without venturing yet another meaning for it, applying it to describe any decision which contradicts clear constitutional text.

(I have given the bare bones of both posts, which are very interesting, especially if you are conversant with or curious about US constitutional debates.)

It seems to me that prof. Barnett is right that we ought to avoid using the term “judicial activism” if at all possible, since it can mean so many things to different people. Prof. Kerr’s categories of judicial activism are very interesting, and no doubt capture much of what people mean when they use the term, but why use the vague, and vaguely pejorative, “judicial activism,” even in one of the useful meanings prof. Kerr identifies, when we can say more precisely what we mean? Judicial activism does not really exist, but we should keep in mind that it does not really exist in a number of different ways.

* As I recall it, in the Russian translation of the Cyberiad which I read, the three distinct kinds of dragon were said to be the nil, the negative, and the imaginary. If anyone knows what the Polish original was, I would love to hear about 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.