How to Get It Right on Wrongs

Ontario’s Superior Court has created a new tort. But should it have, in the circumstances?

In Doe 464533, 2016 ONSC 541, a delivered a couple of weeks ago, Ontario’s Superior Court of Justice awarded substantial damages to a person whose ex-boyfriend posted an intimate video of her online, in addition to showing it to some mutual acquaintances. He had previously coaxed her into making the video, promising that he would be the only one to see it. The promise was a lie, since he shared the video as soon as she had sent it to him. Justice Stinson finds the defendant liable for breach of confidence, intentional infliction of emotional distress, and public disclosure of private facts. The latter ground of liability had never before been recognized in Canadian common law, prompting David Fraser, at the Canadian Privacy Law Blog, to write that “[t]his is a huge deal.” It may indeed, as Mr. Fraser implies, be a hugely positive development. Certainly in Doe the Court was able to give the plaintiff redress for a blatant and vicious injustice that the defendant had done to her. Nevertheless, I want to ask whether, in the circumstances, recognizing or creating this new cause of action was the right thing to do. I hasten to add that, in asking the question, I do not mean to suggest that it must be answered in the negative ― only that it is worth thinking about.

One reason why I wonder whether Justice Stinson was right to develop the common law of privacy in this case is that, as David Canton has pointed out over at Slaw,

[t]he defendant did not file a statement of defence, and this decision was based on a motion for default judgment. So while the decision is well reasoned, there was no contrary position presented. 

Courts are normally dependent on hearing arguments from both sides of a case. Indeed, Jeremy Waldron has argued compellingly that the clash of competing arguments is an essential component of what law is, at a conceptual level. Needless to say, if one the parties chooses to forego his or her right to make an argument, as the defendant did here, this should not stop a court from ruling and, where appropriate, making an order against that party. But I wonder whether the absence of one of the parties from the litigation is not a reason, a very good reason even, for a court to be reluctant to make its ruling a precedent-setting one.

Now, this concern should probably be heavily discounted if not ignored if the question on which a precedent may be set is unavoidable on the path to a decision on the facts of the case. However, this is not the case in Doe. As I note above, Justice Stinson found the defendant liable for three different torts arising out of the same set of facts. The first two are familiar, although I take it that they had not previously been applied to similar circumstances. Had Justice Stinson “only” concluded that the defendant had committed a breach of confidence and deliberately inflicted emotional distress on the defendant, he could and surely would have awarded the same damages against him. So there was no pressing need for the judge to address the question of whether public disclosure of private facts should be a distinct ground of liability. Of course, we can imagine circumstances where the other causes of action would not be made out, and the new tort would be the only conceivable ground of liability. It is arguable that Justice Stinson’s thoughtful analysis is a service to future litigants. But again, the value of that analysis is lessened by the fact that it does not rest on a full, contradictory argument by the parties.

And then, quite apart from the unusual circumstances of this case, there is the perennial question of the relative roles of courts and legislatures in developing the law and creating new causes of action. Justice Stinson notes, early on in his reasons, that Parliament has criminalized the “publication of an intimate image without consent,” and that one province, Manitoba, has passed legislation to make it tortious. Should the law of other provinces move in the same direction by way of common law development, or should the courts wait for the legislatures ― which presumably are well aware of the problem ― to act? There are certainly good reasons for the courts not to wait. At least so long as any new causes of action are carefully circumscribed, there is probably something approaching a social consensus in favour of granting the victims of cruelty such as that suffered by the plaintiff in Doe a civil remedy. The issues involved are not ideologically controversial, and do not concern complex policy questions on which courts might lack expertise. Indeed, one could go so far as to say that, seeing how clumsy and pernicious legislative attempts to deal with online miscreants can be, courts would do well to act first, so as to remove the temptation to act that legislators would otherwise feel. All the same, it might have been useful for the court to address the question. Justice Stinson’s reasons do not.

To repeat, all that is not to say that Justice Stinson was wrong to develop the law in the way he did, or that his reasoning on the substantive issue of whether to create a tort of public disclosure of private facts could or should not be endorsed by a court considering the matter in a subsequent case. My point is only that we should take his decision as an occasion for a reflection on the courts’ when faced with novel legal issues.

What’s the Big Deal?

The Globe and Mail’s Sean Fine has for months been pushing a “conservative judicial appointments” narrative, and he was back at it this weekend, with a lengthy piece on “Stephen Harper’s Courts.” We are, I take it, supposed to be worried about a “judiciary [that] has been remade” by ideologically shaped appointments. Mr. Fine quotes quite a few people who are worried and further reports on calls for the appointment process to be revamped to purge it of nefarious ideological influences. But for my part, I see very little that is objectionable in what Mr. Fine reports. Not only is there, as Emmett Macfarlane has pointed out, very little evidence of a conservative remaking of the judiciary, but if or to the extent that a remaking has occurred, there is nothing objectionable about it.

The one disturbing fact that Mr. Fine presents is that some sitting judges actively lobby the government for promotions. Such lobbying, it seems to me, creates a real danger that the judge will try, whether consciously or not, to ingratiate himself with the government in his or her decisions. In other words, it creates an appearance of bias if not actual bias. Judges should strive to remain above such suspicions. The possibility of promotion is a weak spot in the arrangements protecting judicial independence, and judges themselves should not be exploiting it.

There is nothing improper, however, in a government seeking to appoint judges with whose ideological leanings it is comfortable. Of course, judicial appointments should be merit-based ― in the sense that every person appointed to the bench should deserve to be, by virtue of his or her accomplishments and character. But that’s just a threshold. Ideology, in my view, can properly be taken into account in deciding whom to appoint among the candidates who can get over that threshold. (It’s worth noting that, as Mr. Fine points out, the committees that screen applicants for judgeships rate many more as “recommended” ― and used to rate more as “highly recommended” when that was an option ― than there are positions available).

Now we should keep our sense of perspective about this. As prof. Macfarlane has pointed out, Mr. Fine mentions a grand total of two judges (Grant Huscroft and Bradley Miller) who can fairly be described as ideological conservatives. The rest of Mr. Fine’s “remaking the judiciary” case is built on the appointment of judges said to be not so much conservative as deferential, to Parliament and to precedent. But there is nothing inherently conservative about deference. A deferential judge will give way to Parliament or precedent regardless of whether they are “conservative” or “liberal” or something else.

That said, even to the extent that some of the judges appointed by the Conservative government are indeed ideologically conservative, there is nothing wrong with that. As I have argued repeatedly here and elsewhere, judging is in part an ideological activity, and Canadian judges, whether appointed by Mr. Harper or by any of his predecessors, are not free from ideology. We might like to think that they are, and that the core tenets of our legal system, such as the “living tree” approach to constitutional interpretation, on which Mr. Fine dwells in his article, are somehow natural and value-free. But that is an illusion. “Living tree” interpretation is no less of an ideological commitment than originalism, albeit one that most Canadian lawyers share most of the time (though by no means always, as I have pointed out here and Benjamin Oliphant, more recently, at Policy Options).

Given that no matter what judges the government appoints, it will  always be appointing judges whose decisions will, in part, be influenced by their ideology, I don’t see anything wrong with governments wanting to appoint judges who will be influenced by what they see as the right ideology. Indeed, like prof. Marfarlane, I think that it is a good thing that the current government has been able to inject at least a modicum of ideological diversity into the Canadian judiciary. As I wrote in response to one of Mr. Fine’s earlier articles,

[t]he lessons of Jonathan Haidt and his colleagues’ work on the mischiefs of ideological uniformity, about which I recently wrote over at the National Magazine’s blog, are relevant to courts as well as to the social sciences. Precisely because ideology affects adjudication, more ideologically diverse courts will produce better argued decisions, in the same way, as prof. Haidt et al. show, as an ideologically diverse academy will produce more solid research.

As I also wrote in that post, an individual judge actually has very little power except that of persuading his or her colleagues or, in the case of lower court judges, hierarchical superiors. Are the people who decry the appointment of some judges seen to be ideological outliers actually worried that these few judges, despite being a small minority, will convince other judges that they are right?

What would indeed be worrying is evidence to support David Dyzenhaus’s assertion, quoted by Mr. Fine, that “that the appointment of judges is from a very small pool of lawyers,” resulting in a lower-quality bench. Now it is no doubt true that, as prof. Dyzenhaus says, “people of considerable ability are being passed over.” But that in itself is not a problem, so long as are more able candidates than positions on the bench. And Mr. Fine presents no proof that that is not so. That said, it is worth noting that the Conservative government and the broader conservative movement have done nothing at all to broaden the pool of genuinely conservative lawyers whom they could appoint to the bench. As I pointed out here, they neither articulated much of an ideology, nor created any sort of organization that might do so, like the Federalist Society did in the United States. But those from whom ideological diversity on the bench is a source of concern can take comfort in the Conservatives’ laziness.

In short, there is little evidence of impropriety in the Conservatives’ handling of judicial appointment, at least Mr. Fine describes it. (Ironically, his piece does not even mention what is arguably the most serious charge against them in this regard ― their notorious reluctance to appoint women to the bench.) Similarly, there is no evidence in Mr. Fine’s piece that we need to change the judicial appointments process. Indeed, I would go so far as to say that attempts to “depoliticize” that process are a bad idea insofar as they will prevent a government from pushing back against the ideological homogeneity of the judiciary. Such pushback, far from being a problem, is a good thing that will improve the quality of the bench and of the decisions Canadian courts render.

Politicians in Robes?

I have a new post up at the CBA National Magazine’s blog, in which I summarize and discuss a most fascinating study by Dan Kahan and his colleagues at Yale’s Cultural Cognition Project. The study tried to establish, empirically, whether judges, lawyers, law students, and members of the general public would be influenced in the same way by their ideological inclinations in solving hypothetical legal problems (both of which involved statutory interpretation).

What it found was that while the members of the public are indeed swayed by politically salient but legally irrelevant facts introduced into the hypotheticals, lawyers and judges are not. Law students fall somewhere in between the public and the professionals. The study hypothesizes, persuasively in my view, that it is professional training and experience ― of whose effects it provides a very useful account for those of us not schooled in psychology and cognitive science ― that explain this difference.

The study is also valuable for making clear a difference that too often goes neglected by both the critics and the supporters of judges. It points out that its findings do not mean that judges and lawyers approach legal problems free from any ideological influences whatever. Rather, it is important to distinguish ideological commitments that are an inextricable and perfectly legitimate part of the law, and those that are not. The study provides the view that competition law should be oriented towards consumer welfare as an example of the former. This view is, or was at a certain time, not uncontested; it can be meaningfully described as ideological. But competition law must have some view of its ends if it is to function, and any such view is ideological in that sense, so saying that a judge is influenced by “ideology” as a description of his or adopting one such view isn’t actually all that interesting. By contrast, a judge resolving the same issue differently due to the identity of the parties to the case could be a sign of improper ideological influence. Existing “empirical” scholarship tends to focus on, or largely detects, ideological influences of the former, less interesting sort. This one tries to pick out the latter ― and fails, concluding that judges are not, contrary to an all-too-common stereotype, just “politicians in robes,” which should be source of great relief to those of us who believe in the Rule of Law.

There is a lot more to the study though and, I dare say, even to my comment on it. Please give them a read.

Ideology and Canadian Judges

In case you missed my self-promotion yesterday, my new post a the CBA National Magazine’s blog is up. It argues that we need to change the ways in which we think about and study judicial ideology in Canada. Simply importing American models, which rely on using the party of the president who appointed a judge, or on the perceived ideological valence of judicial decisions, as a proxies for the individual judges’ ideological leanings does not work well in Canada, because our legal culture lacks parallels to “liberal” and “conservative” legal worldviews that have in the last few decades been so familiar south of the border.

One consequence of this is that Liberal and Conservative prime ministers draw on pretty much the same pool of candidates when picking their judicial appointees, making the prime minister’s party a (nearly?) useless proxy for judicial ideology. The other is that classifying case outcomes as “liberal” or “conservative,” already a fraught exercise in the United States ― think, for example, of the way in which freedom of religion, and especially religious exemptions, have gone from being a “liberal” cause along with other civil rights to a conservative one in recent years ― is an almost impossible one in Canada. In addition to my own examples from the Supreme Court’s federalism jurisprudence, Emmett Macfarlane ― who has studied and written about the ideological influences on the Supreme Court of Canada ― provided more solid evidence of this in his tweets responding to my post:

And yet, Canadian judges do have ideological preferences. Of course they do ― I have argued here that constitutional law in particular is inescapably ideological and, perhaps to a lesser degree, this is true of any other area of the law is well, although judges may be more constrained in areas where the applicable texts are more precise and the precedents more settled. It’s just that we tend not to notice these ideological preferences because most all Canadian judges share them ― again, because there are no “alternative” legal worldviews with any purchase in the Canadian legal community; in particular, as I have explained here, the Conservative party has not even tried developing a constitutional theory of its own.

In this recent essay, Bob Tarantino argues that Canadian conservatives and libertarians really need to do so, because

the law develops in an impoverished way if only “progressive” views dominate and inform decisions from the bench. For the vitality of the law to be maintained, judicial decision-making must be a crucible of debate over what the law is, its purpose and its application, from a variety of perspectives. When it is possible to immediately identify “progressive” judges, but impossible to identify “conservative” or “libertarian” judges, the bench and the law risk myopia and stagnation.

He is probably right, although more ideological diversity on the bench has costs as well as benefits, as we can see by looking at the American example. At a certain point, ideological conflict crosses the line between vitality and feverishness, and the law will suffer if it is seen, as American constitutional law may be in danger of being seen, as little more than a battleground for ideological and, worse, partisan conflict.

In any case, before we start advocating, we need to understand. And in order to understand the effects of ideology on Canadian courts, we need to change the ways in which we think about it.

The Empirical Turn

In a post on the National Magazine’s blog, Kerri Froc discusses (among other things) what she refers to as “the empirical turn in Charter jurisprudence” ― the  tendency of Courts to decide Charter cases on the basis of social science evidence instead of “expounding on the nature of human values embodied by rights.” Perhaps most recent Supreme Court decision exemplifying this trend is the one in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 SCR 1101, which invalidated the provisions of the Criminal Code relative to prostitution. I had some thoughts of own on this topic here, so it is interesting to compare notes.

If I understand her correctly, Ms. Froc worries that increased reliance on social science evidence, in tandem with a narrow and technical approach to the application of the Charter, may lead to “democratic deficits” in rights adjudication. In particular, these twin trends, and the corresponding judicial retreat from more “abstract forms of philosophic reasoning,” cause “Charter analyses to become more divorced from the actual realities represented in the case,” while leaving the courts with excessive discretion in their treatment of the evidence, which they can use to either enable or stifle rights claims. Although Ms. Froc questions whether a more philosophical approach to the Charter would produce “more consistent and democratic outcomes,” she seems to suggest that it would at least be preferable from a process standpoint.

My own doubts about the direction in which the “empirical turn” is leading us concern both process and outcomes. Starting with the latter, my worry is specifically that deferring to findings of social science-based “legislative facts” by trial judges, as Bedford requires appellate courts to do, will lead to more mistakes than either more principle-based judicial decision-making or even a fact-based adjudication that allowed plenary review of such findings of fact on appeal. This is in part because trial judges may lack the skills to engage with social science evidence, and in part because, since trial judges sit alone rather than in panels, mistakes that they will make in assessing such evidence will not be caught before they issue their decisions. Besides, the government, whose resources are much larger than those of any civil-society organization, will be at an advantage in the evidentiary food-fights required by the “empirical turn.” We not are noticing this yet, because the current government is incredibly evidence-averse, and often legislates without bother to collect any facts at all, but that may change with the bill it is preparing in response to the Bedford judgment. Furthermore, the requirement to put together voluminous and complex social-scientific records to support Charter claims can not only lead adjudication astray, but slow down and maybe even prevent the filing of meritorious Charter claims.  As Sonia Lawrence put it, “[i]t’s a long road to justice this way around, folks,” given the time it takes to put together such records (and the money necessary to do so).

As for my process-related concerns, they might, like Ms. Froc’s, also be described as having to do with democracy, at least in a broad sense. One such concern is with accountability. Shifting the weight of rights adjudication from principle-based reasoning by appellate courts to fact-finding at trial risks making it less visible, especially to the media which tend not to devote nearly as much attention to the decisions of trial courts as to those of the Supreme Court. As I wrote in the post linked to above,

under the Supreme Court’s approach in Bedford, by the time a case comes up for appeal, and eventually reaches the highest ― and most visible ― court, it may well already be effectively decided. The Supreme Court can then avoid responsibility for controversial decisions, saying that “the trial judge made us do it.” (Indeed, I wonder whether this was not the real attraction of this approach to the Supreme Court in deciding Bedford.) Call it judicial leading from behind.

My second “democratic” concern with the “empirical” turn is that the costs and difficulty of assembling a trial record required by this approach will make Charter litigation the province of well-funded organizations and interest groups, leaving individuals without such support unable to pursue their claims.

The irony of it all is that the “empirical turn” in rights adjudication is probably motivated by judicial concerns over the “democratic deficit” of judicial decision-making in the realm of social policy and/or morality. As I wrote earlier, it seems likely enough that

the Supreme Court prefers to rely heavily on fact-finding ― preferably on fact-finding by others ― in order to avoid responsibility for controversial decisions, or at least, to put the point less harshly, in order to make such decisions appear more inevitable and hence less questionable and more legitimate.

Yet if Ms. Froc or I are right about the problems we see with the “empirical turn,” this strategy risks backfiring and making judicial review appear deeply problematic, perhaps even “undemocratic” ― to an even greater extent than it necessarily, and rightly, is. The point, as I argued here, is not that courts should ignore social science evidence altogether. In some cases, an “empirical turn” can be a useful contribution, perhaps even a correction, to Charter adjudication. But courts should be aware of its dangers, and should try to mitigate instead of compounding them. If that makes them appear more assertive and powerful, they need to take responsibility. Strong judicial review is not for the faint of heart.

Hercules and the Umpire

Readers may have already come across it, but I hadn’t until a few days ago, and in case others haven’t yet, I wanted to recommend a wonderful blog by Richard Kopf, an American federal district court judge, called Hercules and the Umpire. As judge Kopf explains,

I hope the title evokes an image of two poles.  On the north, we have the late great Ronald Dworkin’s all knowing judge, Hercules.  On the south, we have Chief Justice Roberts’ formulation of the judge as umpire.

I am interested in knowing (1) which pole is the better and (2) whether there is a longitude and latitude between those poles that locates the proper role of a federal trial judge.

As this passage suggests, Judge Kopf is a very intellectually curious person. He is also intelligent, humble, and forthright. In a word, he is wise. He also has a much better blogging work-ethic than I do.

If you are interested in judges ― or in the (American) legal system generally ― take the time to read him. It’s well worth your while.

Something about the Zeitgeist

Justice Scalia is often snarky. But he gets as good as he gives. Both tendencies were recently on display, after Justice Scalia apparently asserted that judges interpreting law in accordance with the “spirit of the age” were among the causes of Nazi barbarities, including the Holocaust ― a none too subtle dig at “living constitutionalism” and, perhaps, “judicial activism” of all sorts (whatever judicial activism is). The first reaction of some (myself included) was to think of Goodwin’s law. Others wax sarcastic about “peak Scalia.” Both snark and counter-snark are unjustified.

Start with the snark. Of course, when the spirit of the age is rotten, interpreting law in accordance with it will give foul results. But what about Justice Scalia preferred originalist approach? It will give better results if the law one interprets was written in a more enlightened age than the interpreter’s own; but if a law reflects the prejudice and ignorance of times past, then it is interpreting it in accordance with the spirit of those times that will give us bigoted jurisprudence. If one believes, with Martin Luther King, that the arc of the moral universe bends towards justice, then originalism is, on balance, an unattractive interpretive approach, although this does not exclude the possibility that it will sometimes yield just results, perhaps even more just results than the alternatives.

Yet the dismissive responses to Justice Scalia’s comments are also a bit too quick. It is worth noting that, as Josh Blackman points out, Justice Scalia is not the first to remark on the role of the Nazi judges’ interpretive approach in enabling the crimes of the regime they served. Cass Sunstein has made the same point:

In the Nazi period, German judges rejected formalism. They did not rely on the ordinary or original meaning of legal texts. On the contrary, they thought that statutes should be construed in accordance with the spirit of the age, defined by reference to the
Nazi regime. They thought that courts could carry out their task “only if they do not remain glued to the letter of the law, but rather penetrate its inner core in their interpretations and do their part to see that the aims of the lawmaker are realized.” (1; references omitted.)

Closer to home, Justice Lamer, as he then was, observed in R. v. Collins, [1987] 1 S.C.R. 265, that “[t]he reasonable person is usually the average person in the community, but only when that community’s current mood is reasonable” (emphasis mine). The point Justice Scalia was, I think, trying to make ― in however exaggerated a fashion ― is the same as that at which Justice Lamer was getting in this passage: the “spirit of the age,” the Zeitgeist, can be foul, and when it is, it is the judiciary’s duty to resist it as best it can, to prevent it from contaminating the law.

We can, of course, debate whether originalism is the best, or even an adequate way of doing so. We can say that perpetuating the iniquities of the past is no solution to the injustices of the present. But the idea is not absurd. It deserves discussion, not derision. It’s a shame that the spirit of the age, what with its addiction to soundbites and gotcha lines, appreciates the latter more than the former.

Nothing Like It

Law, perhaps even more than man, is a creature of habit. It thrives on the humdrum. It likes nothing better than demonstrations that one case is just like some other in all relevant respects. It is a creature of habit in a more literal sense too, in that legal rules often crystallize out of the usual practices of a community ― though as I recently pointed out, this is not always a good thing. But how does the law deal with the new, the unusual, the unprecedented? How do, and how should, judges respond when they confront situations never faced by their colleagues and predecessors? Some recent blog posts by Gerard Magliocca and Kyle Graham explore some aspects of this question.

Prof. Magliocca is interested in assertions by a court engaged in judicial review of legislation that the statute at issue is unusual, asking “whether this concern constitutes an independent theory of heightened scrutiny.” He suggests a number of reasons for why this might be the case:

One possibility … is that this a rhetorical move.  Characterizing a law as strange implies that finding it invalid will not endanger other laws.  Or it simply prepares the ground for a conclusion of unconstitutionality by undermining the authority of the law.

Another thought is that an unusual law raises questions about its motivation.  Why did the legislature pass this curiosity?  Could be because they were trying to achieve an improper goal or circumvent a constitutional obstacle.

A third possibility …  is [that] this is the modern version of the common law rule of “construing statutes in derogation of the common law narrowly.”  In effect, tradition should be given considerable weight in interpretation.

For his part, prof. Graham is interested in “the dog that didn’t bark” arguments to the effect that the absence of judicial decisions holding that x is the law means that x is not the law. He contends that such arguments aren’t persuasive, because “a precedent desert” might be due to a number of factors that have little to do with the correctness of the proposition that x is or is not the law. It might not be worth litigating the point because the remedies available are unattractive, or the cases might be settled before being resolved by courts. Indeed, however we might expect or wish otherwise,

lots of the area that lies within the boundaries of the legal “map” remains terra incognita in the sense that there exist no published opinions squarely on point. As every first-year law-firm associate learns (after having a partner utter the awful words, “I know there must be a case on point out there; find it”), even with thousands of case reporters and an ever-growing pool of impossibly deep electronic databases to draw from, there exist many commonplace fact patterns that have generated little or no published precedent.

For what little it’s worth, I inclined to agree with prof. Graham. I think, for example, that A.V. Dicey was badly mistaken when he argued that the absence of precedents in which courts enforce constitutional conventions meant that conventions were incapable of judicial enforcement and indeed not part of law at all. (I develop this point in my paper “Towards a Jurisprudence of Constitutional Conventions”, 11 Oxford University Commonwealth Law Journal 29 (2011).) At the same time, I sympathize with courts looking at “unusual” statutes with some suspicion. When, in a recent post, I have described a Saskatchewan statutory provision allowing a newly-elected government to fire members of most provincial administrative agencies as “very unusual,” it was not only a statement of fact, but, at the same time, a way of indicating wariness and disapproval.

These are only hunches though, and of course the question arises whether they are inconsistent. In other words, should we draw the same conclusions from what prof. Graham calls a “precedent desert” in statutory law as in judicial decisions? And if so, what should these conclusions be? Does the absence of judicial precedent mean something more than prof. Graham thinks, or are courts wrong to make something of the unusualness of the legislation they are reviewing? Or is the best attitude a sort of compromise that consists in a Burkean conservative attitude of treating all novelties, whether legislation or legal claims, as presumptively suspicious but not conclusively impermissible?

I haven’t thought enough, or intelligently enough, about these questions to say something very profound. The most I can venture is that beyond its sometimes useful, sometimes annoying preference for sticking to the familiar, law is concerned with its coherence (or, to use the loftier Dworkinian idea, “integrity”). It is not closed to new claims, rules, or arguments, but if it accepts them, it must integrate them, assimilate them, make them part of the system. It must, as prof. Magliocca puts it, “tam[e] exotic beasts” and domesticate them. It is probably not unnatural that courts sometimes recoil at that task ― but it does not necessarily follow that are justified in doing so.

What They Said

It is usually understood that judges must give reasons for their decisions. But does it matter if the reasons a judge gives are largely lifted from the submissions of one of the parties? That was the question that the Supreme Court of Canada confronted in Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, delivered on Friday. The Court’s answer is that while it’s not “good practice” for judges to adopt a party’s submissions wholesale, that is not enough for an appellate court to set the decision aside.

The trial decision at issue is 368 paragraphs long, of which 321 were taken directly from the plaintiffs’ submissions. As the Supreme Court put it, “[t]his raises the concern that the trial judge did not put his mind to the issues, the evidence and the law as he was sworn to do, but simply incorporated the plaintiffs’ submissions” (par. 10). The Court described this concern as procedural, because it has to do with the fairness of the decision-making process, rather than with the substantive correctness of the outcome or the sufficiency of the reasons given to support it. The test to be applied in deciding whether a concern with the fairness of a court’s decision-making warrants setting aside the allegedly unfair decision is whether

a reasonable observer, having regard to all relevant matters … would conclude that the alleged deficiency, taking into account all relevant circumstances, is evidence that the decision-making process was fundamentally unfair, in the sense that the judge did not put her mind to the facts, the arguments and the issues, and decide them impartially and independently. (Par. 13)

However, in applying this test, courts must bear in mind “the presumption of judicial integrity,” which “carries considerable weight” (par. 20) and can only be rebutted by “cogent evidence” (par. 22). Without more, the Supreme Court holds, the fact that a judge incorporated a party’s submissions into his or her reasons is not enough to rebut the presumption, because it does not show that the judge failed to consider the case and come to his or her own conclusions about the issues it presents.

The Court says that “judicial copying” (par. 30) is not a bad thing in itself. Reasons for judgment should not be assessed by the same criteria as works of literature or scholarship. They do not normally aim for originality. For that reason, a judge’s failure to acknowledge the fact of copying or mention his or her sources does not matter ― the judge is not actually claiming that the work of others is somehow his own original creation. The Court quotes, approvingly, an article by Simon Stern arguing that lack of originality is, if anything, a virtue rather than a vice of judicial writing:

[t]he bland, repetitive, and often formulaic cadences of legal writing in general, and judicial writing in particular, can be explained in large part by a commitment to the neutral and consistent application of the law.

While it is best not to abuse the privilege of being unoriginal, and judges should try to explain their decisions in their own words, failure to do so does not demonstrate that judge did not actually consider and decide the case.

In the case at bar, the trial judge actually wrote some paragraphs of his own, and did not accept all of the claims of the party whose submissions made up the bulk of his reasons. This shows, the Supreme Court holds, that he did not fail to consider the case, and this the presumption of integrity has not been rebutted. (The Court then goes on to hold that a number of the judge’s conclusions were the result of palpable and overriding error, and reverses them ― but that is, in theory at least, a different story that doesn’t interest me here.)

I have mixed feelings about this decision.

On the one hand, the Court is right that originality of ideas and writing is not something judges normally aim for (it might be a trait of great judges, but there is an important difference between what makes a judge great, and what is required in ordinary adjudication, as I have argued here). So some copying and some failure to acknowledge sources is arguably not a big deal (though I still think that judges should avoid such practices). And of course it is difficult to draw the line between what is acceptable and what is not, so I can sympathize with the Supreme Court wanting to discourage litigation on this issue, which would create a mess of appellate decisions and drive up the costs of litigation for parties, thus further impeding access to justice. (I suspect, at least, that such considerations must have been on the judges’ minds, though the Court does not explicitly discuss them.)

On the other hand, the decision means that judges who delegate the writing of their decisions to law clerks ― or who use the parties as their law clerks, as the trial judge here seems to have done ― can go on with no fear of appellate correction. Yet our judicial system relies on the articulation by judges of the reasons for their decision to help judges maintain the attitude of impartial decision-makers open to persuasion, as I have explained here. Shortcuts that allow judges to escape the burden of stating their reasons for decision can compromise this attitude. They might also lead to substantively poor  decision-making. Indeed, this may well have happened in this case ― it is not often that trial decisions are overturned, even in part, for “palpable and overriding error” in the assessment of evidence.

On balance, the Supreme Court is probably still right, because the law is not a very good tool for deciding when judges have strayed far enough from what is “good practice” in reason-giving for their decisions to be set aside. But judges themselves ought not to take this decision as an endorsement of their taking short-cuts. Their position imposes on them duties that go beyond the requirements of the letter of the law. The “presumption of integrity” of which the Supreme Court makes so much can only exist if judges are mindful of these duties. “What they said” is not enough.

What Judges Do

First of all, my most abject apologies for the silence of the last couple of weeks. I was swamped (and then trying to recover from being swamped). I have a lot to catch up on, if I can, not least the Supreme Court’s hate speech decision, Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11. But I want to ease my way back into the blogging routine, and to show you a bit of what I have been up to, so I start with a version of a passage from the paper I have been working on, eventually to be part of my thesis.

The paper explores the sources of the rules which judges apply in “hard cases”―cases the rules that can be found in the usual legal sources (the constitution, statutes, or precedents) are inadequate (more on what that means shortly). I argue that there are several such sources―at the very least, underlying legal principles, social practice, and what might properly be called “judicial legislation” or policymaking. Perhaps there are others, but I am not sure yet. Be that as it may, most legal philosophers who write about adjudication only focus on one of these sources, though not all on the same. Each has his favourite―for example, principles are Ronald Dworkin’s, pracitice F.A. Hayek’s, policymaking Richard Posner’s.

But why is it that these very smart people have missed the plurality of the sources of rules in hard cases? The problem, I think, has to do with the question what makes a case a hard one. It is often assumed that the answer is the absence of relevant rules in the standard sources of law (constitutions, statutes, precedents, etc.). Hence for example Cardozo’s description, in his great work on The Nature of the Judicial Process, of the judge as “legislat[ing] only between gaps,” “fill[ing] the open spaces in the law” (113), and Judge Posner’s assertion, in How Judges Think, that judges have “legislative freedom, albeit only in the subset of legalistically indeterminate cases.” (82). But that is not necessarily so.

A hard case, to use Posner’s description from elsewhere in the same book, is one “in which the orthodox materials of judicial decision making, honestly deployed, will not produce an acceptable result” (79; emphasis mine). Cases where these materials “may not produce any result” (ibid.; emphasis in the original) are only the more extreme subset of this larger category. (That sub-set, in turn, includes a sub-subset consisting of cases where the materials supply a rule that seems clearly applicable, and yet is too vague to be applied without interpretation.)

Hard cases are often hard not because the law “runs out” and leaves the court without a rule by which to decide, but because the court realizes that the application of the legal rule supplied by materials such as statute or precedent would be, as Posner puts it, unacceptable. This may be because the rule derived from the obvious law conflicts with general principles implicit in the law, or because it is at odds with practices and expectations of the society which they purport to regulate, or because it will produce bad policy outcomes.

This suggests that the reason for the often-unnoticed plurality of the sources to which judges turn in hard cases is the variety of the problems in order to address which courts articulate the previously unannounced legal rules. Sometimes the problem is that the orthodox legal materials have run out, or are vague;  sometimes it that the rule supplied by these materials is at odds with the law’s structure or underlying principles; sometimes, it is a mismatch between the materials and the expectations of the community; sometimes it is that the materials produce bad policy outcomes. Seeing the function of adjudication as being predominantly, if not only, one thing―whether interpreting legislation, ensuring the law’s coherence or “integrity,” or adjusting it to the community’s expectations, or producing the best policy results going forward―naturally enough leads the theorist who falls victim to this tunnel vision only to see the source of adjudicative law which is most apt to help perform this function.

In reality, depending on which of the problems with the traditional legal materials which a court identifies in a given case, it will turn to a different source for formulating a new rule to resolve it. The obvious correspondences between the problems and sources―incoherence and principle, mismatch between law and expectations and social practice, bad policy outcomes and judicial legislation―do not always hold. A court may sometimes respond, for example, to a mismatch between social practice and the existing legal rules by reaching back to the law’s underlying principles to reformulate the rules, as Lord Atkin arguably did in his famous judgment in Donoghue v. Stevenson, [1932] A.C. 562. Yet these correspondences hold often enough for me to leave the last word to Cardozo:

My analysis of the judicial process comes then to this, and little more: logic, and history and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate m any case, must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. (112)