Judicial Independence as Free Speech

I wrote last fall about some implications of the metaphor of the “marketplace of ideas,” much used (especially in the United States) in the realm of free speech law. What prompted my reflection was a presentation by Robert Post, the Dean of Yale Law School, who argued that institutions engaged in the production of specialized knowledge indispensable  in a democracy―first and foremost universities―actually do not practice free speech internally. Not all ideas are equal in an academic setting. Academic disciplines accept some claims as true and reject others as false, and so, argues Dean Post, it is misleading to apply the notion of a marketplace of ideas, which implies the equality of all the competing ideas, when discussing academic freedom. Academic freedom is not the freedom of individual academics to say whatever they want without suffering negative consequences for it, but rather the freedom of academia as a whole to apply only its own disciplinary criteria to judging purportedly academic ideas.

For my part, I think that Dean Post is right to point out that some institutions that are essential for a healthy marketplace of ideas do not function on market principles internally. I also said, however, that he is wrong to say that this makes the marketplace metaphor inapplicable, because the same situation prevails in most real market too―firms, which are essential sellers in most markets, also do not follow the market principles internally, as the great Ronald Coase pointed out.

Academic institutions are not the only ones to which these thoughts apply. And here’s a crazy thought: judicial independence, at least as it has developed in Canada, looks a lot like an instance of the sort of free speech for an expert community described by Dean Post.

Like universities, the courts are in the business of producing a particular kind of ideas―specifically, ideas about the truth or falsity of certain propositions of law. And perhaps to an even greater extent than in scientific research, there are recognized ways of generating such ideas (the rules of procedure and evidence that courts must follow) and for evaluating them (appeals). As in scientific research, the institution engaged in the production and evaluation of these ideas (the court system) does not function, internally, as a free marketplace. Unlike in a market, there is a hierarchy, with some producers having higher status than others―courts of appeal, which intervene to correct the errors of trial courts, and which are deemed to be correct simply by virtue of their hierarchical position, rather like in academia hiring or tenure committees, or the editors of scientific journals, are deemed to be right by virtue of their functions.  They, as well as appellate courts, may actually be wrong, and their decisions might be open to external criticism, just as decisions of appellate courts are, but in both cases their judgment is regarded as authoritative notwithstanding external criticism.

And, much as academic freedom means that an academic, can suffer penalties for his work if, but only if, authoritative academic processes or institutions conclude that he or she must so suffer, judicial independence means that a judge can suffer (be punished and, eventually, dismissed from office) only if the members of the institution to which he or she belongs so decide. This is the idea behind judicial councils―advisory bodies which consist mostly (though not exclusively) of judges and which make recommendations regarding judicial appointments and, perhaps more importantly, sanctions to be applied to judges for misbehaviour in office. Now admittedly there are some differences between judicial councils and, say, tenure committees. For one thing, as I just mentioned, their membership does not only consist of judges. For another, their recommendations are not determinative of judicial appointments, and in even in the realm of judicial dismissal, the final decision belongs to political authorities (Parliament and the Governor General in the case of s. 96 judges, provincial governments in the case of provincially-appointed judges). Still, I think that the similarities outweigh the differences.

But does it make sense to speak of judicial independence is a sort of free speech right rather than a self-standing principle? I think it does, at least if we do not take this description to be the only correct one. From the standpoint of judges, independence means being able to say things that they believe to be correct within the parameters of their discipline―for example that an Act of Parliament is constitutional―without suffering unless, as a matter of their own discipline, they are wrong. (Now, judges aren’t punished simply if their decisions are overturned on appeal, but they hate it when that happens; and I suppose that if a judge turns out to always be making wrong decisions―if he or she turns out to be blatantly incompetent―he or she can in fact be punished.)

It is interesting to refer here to what is, I believe, the first formal protection of freedom of speech―that of the 1688 Bill of Rights, which provided “[t]hat the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.” This also looks a lot like a right, for members of a specific community engaged in the production of a special kind of public good in the marketplace of ideas―namely, ideas about the government of the country―not to be punished for what they say except insofar as such punishment may be imposed by their colleagues, in that case fellow parliamentarians. Formal protections of freedom of speech, such as that of the American First Amendment and of s. 2(a) of the Charter were then extend to the citizenry as a whole (and to non-citizens too), but, as Dean Post reminds us, the somewhat different institutional version of the freedom of speech has not gone away.

Now, even if my re-conceptualization of judicial independence is not crazy, there remains the question of whether it is useful. I’m not sure that it is. But re-conceptualizations are a favourite pastime of legal academics. Some―the re-invention of areas of the law formerly understood in terms of duty in terms of economics comes to mind―are wildly successful. Others are just games, really. Mine is not exactly likely to bring me Posnerian fame and fortune, but it is fun all the same, for me at least.

Independence Be With You

The application of the principle of judicial independence, as the Supreme Court has developed it, to ordinary judges of provincial, federal, and superior courts is clear enough. But the extension of its protections to other judicial officials, such as deputy judges, masters, or prothonotaries still causes friction between the judiciary and the “political branches.” A recent decision of the Supreme Court of Nova Scotia, Nova Scotia Presiding Justices of the Peace Association v. Nova Scotia (Attorney General), 2013 NSSC 40, is illustrative. The presiding justices of the peace―”those justices who hear and determine cases, such as the trials of some charges under provincial legislation” (par. 1)―formed an association to represent their concerns about their pay and working conditions. The justices are now paid at an hourly rate tied, according to a rather convoluted formula that has not changed in a decade, despite the changes in the justices’ jurisdiction, to the salary of provincial court judges. The association sought to have this legislative scheme declared unconstitutional as a violation of the principle of judicial independence. It has succeeded.

As a preliminary matter, the government argued that that judges could not sue the Crown, because they were its delegates. The Crown, at common law, is the font of justice; judges are merely its representatives, its judicial alter ego. So they cannot sue it, since this would be equivalent to the Crown suing itself. Not so, said the Court. The Crown wears many hats, as it were (this lame joke is my own; don’t blame Justice Moir for it):

 A constitutional monarchy limits the Crown’s involvement with each of the three branches of government.  And, the limits are different for each.  So different, that the Crown who is a component of Parliament cannot be univocally equated with the Crown who is the head of government in the sense of the executive, and neither can be univocally equated with the Crown who has a symbolic relationship with the judiciary. (Par. 24)

Furthermore, “the constitutional requirement for an independent judiciary is inconsistent with the notion that judges function as delegates of any entity associated with the government, the executive branch” (par. 25).

The government’s theory seems quite absurd to me. If taken seriously, it would prevent a judge from suing the government even if the government, for whatever reason, fails to pay his salary! But there is another conceptual flaw in it. Although the Crown is named as a respondent, because it is the executive’s job to defend the constitutionality of legislation, a suit for a declaration that a statute or regulations are unconstitutional is hardly equivalent “suing the Crown” in any ordinary sense.

The government also raised a second preliminary objection, arguing that the Association had no standing. The Court agreed that it had no personal interest at stake, the issue being the judges’ pay, not anything the Association is owed. But, applying the Supreme Court’s recent ruling in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45,   it granted the association public interest standing, holding that the case presented a serious justiciable issue, that the association had a genuine interest in the proceedings, and that its suit was a reasonable and effective way of bringing the issue before the court. On this point, Justice Moir writes that

Parties to hearings before justices have a direct interest in a justice’s independence. … [T]he government suggests we wait until a party becomes informed about the justice’s remuneration and chooses to mount a challenge based on lack of independence.  One could wait rather a long wait.  In the meantime, one has to be concerned that the justices have taken a public position that seriously calls into question their ability to determine cases with the required independence. (Par. 51)

This paragraph shows both the promise and the danger of the expanded public interest standing under Downtown Eastside. The promise is that a point of constitutional significance can now be raised by a group with knowledge of and expertise in the relevant area, even if it has no “personal stake” in raising it. A person with such a stake might lack the resources to raise the argument effectively (as was the case for sex workers in Downtown Eastside) or the point might be so obscure that few ordinary litigants or even lawyers would be aware of it―that, Justice Moir seems to suggest, is the case here. The danger is that interest groups might be able to manufacture their own constitutional challenges even though no “real” person actually cares about them. The people should be free to “sleep on their rights” if they are so inclined. But with public interest standing, someone is always going to be awake. So it is in this case, where the supposed beneficiaries of judicial independence, the litigants (or more specifically here, the accused)―not the judges!―did nothing to assert the violation of their rights, and a pressure group with a stake in enforcing the rights of others decided to do it.

On the merits of the case, the government argued that since the justices’ compensation was tied, after a fashion, to the salary of provincial court judges, which salary was set following a constitutionally compliant procedure (recommendations by an independent commission followed by reasoned response by the government), the requirements of judicial independence were satisfied for the justices too. The Court rejected that claim. Tying the salary of one group of judicial officials to those of another is not enough. There is no necessary relationship between the work of justices of the peace and that of provincial court judges. The commission recommending salary increases and working conditions for the latter has no mandate to look at the situation of the former; its recommendations have nothing to do with justices of the peace. Judicial independence, as the Supreme Court held in Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3, requires an independent commission to make recommendations as to salary and other benefits of judges. Since there is no meaningful input from such a commission in the case of justices of the peace, their independence is not respected.

That sounds right to me. One can of course criticize the Supreme Court’s expansive―and expensive―view of judicial independence, but it is, for better or worse, the law of the land. And surely, not entirely for the worse. In this case, it is true that the way the justices’ pay was determined bordered on the irrational, yet the government manifestly had no inclination to do anything about it.

As for the remedy, the Court grants a declaration of unconstitutionality, suspended for 12 months to allow the government to come up with a constitutional alternative. But it denied the Association’s request for an order for retroactive compensation:

this misses the point that special processes for judicial remuneration are to protect judicial independence, not judges.  Judicial independence cannot be restored retroactively. (Par. 119)

Indeed.

The Limits of Independence

I want to return to the Québec Bar’s challenge against the constitutionality of all the mandatory minimum sentences increased or created by Bill C-10, the “tough on crime” omnibus bill adopted by Parliament earlier this year, about which I blogged here earlier this week. One of the grounds of possible unconstitutionality which the Bar raises in its application is that the new mandatory minimums infringe judicial independence and separation of powers. I think that this argument is badly mistaken.

The Bar argues that judicial independence and separation of powers (which amount to the same thing, because what is at issue here is the separation of the judicial power from the legislative) require that the judiciary enjoy complete autonomy in the exercise of its functions. In particular, the legislative power cannot interfere with “the law courts’ exclusive function of issuing orders based on law and evidence” (par. 92 of the application). In criminal cases, it is the courts’ role to give a sentence based on the evidence and considerations of proportionality, appropriateness and justice. This judicial function is essentially discretionary. Interference with that discretion is therefore an interference with an essential adjudicative function. And, of course, a minimum sentence takes (some) discretion away from the judge. Imposing a minimum sentence oversteps the constitutional boundaries between Parliament and the judiciary. Furthermore, the Bar submits, “this judicial discretion is necessary for judges to be able to deliver just decisions, the very foundation of the courts’ legitimacy” (par. 101).

These arguments prove too much. If they were accepted, not only the minimum sentences at issue in this challenge, but also any legislative interference with sentencing discretion would be constitutionally prohibited. Such an outcome would be neither sound in principle nor justified by the law.

If it were true that separation of powers required judges to have the discretion to set sentences that they deem just and proportional, then no statutory limits on that discretion would be permissible―neither mandatory minimums nor mandatory maximums. If untrammelled discretion in sentencing is constitutionally required, there is no ground on which to distinguish a mandatory minimum from a mandatory maximum. If, say, a judge feels that a man who stole the last piece of bread of a poor little old lady deserved a harsher punishment that the maximum of two years’ imprisonment set out in s. 334 of the Criminal Code for theft under 5000$, he ought, if we follow the Bar’s reasoning, to be constitutionally free to do so, as much as a judge ought to be free to disregard a mandatory sentence of imprisonment and not to send a man to prison for growing a couple of marijuana plants. But the Criminal Code imposes a mandatory maximum punishment for every single offence it creates―and nobody, to my knowledge, ever thought that somehow wrong. I very much doubt that the Bar thinks so. Judicial independence is important, but it does not include the power to make laws; indeed, separation of powers requires that power to be left to the legislature (subject possibly to a role for the judiciary to develop the law―but subject, in turn, to legislative over-ride). And the power to make criminal laws has always included a power to prescribe a penalty. We impose constitutional limits on this power, in particular in s. 12 of the Charter, which prohibits cruel and unusual punishment. But that has nothing to do with judicial independence. Power must be checked and limited. The legislature’s power to change the law―including in ways with which the judiciary might not agree―is probably the most important check on and safeguard against the power of the judges.

The Bar invokes a couple of Canadian cases to support its claims that sentencing discretion is a requirement of judicial independence, but in my view, its use of these precedents borders on bad faith. The first, R. v. M. (C.A.), [1996] 1 S.C.R. 500, concerned the power of an appellate court to vary a sentence imposed at trial. It is in this context that the Supreme Court held that sentencing was discretionary―within the bounds set by the Criminal Code―and therefore subject to deferential review on appeal. This does not prove that Parliament cannot limit the sentencing judges’ discretion. Indeed, the Supreme Court noted that the Criminal Code usually prescribes a maximum punishment and sometimes a minimum, though minimum sentences are sometimes subject to suspicion under s. 12 of the Charter. The other case, Ell v. Alberta,  2003 SCC 35, [2003] 1 S.C.R. 857, concerned the independence of justices of the peace. It mentions the justices’ discretionary powers over bail―not sentencing―a procedure which is thoroughly regulated by the criminal code. The Bar also invokes a Privy Council decision, Liyanage v. The Queen, but that concerned what was effectively a bill of attainder enacted as retribution against specific political opponents. As much as we may detest the government’s “tough on crime” programme, it is a far cry from that.

Mandatory minimum sentences may, in many cases, be cruel, disproportionate, and even irrational. Courts have already struck down a number of provisions imposing them, and are likely to strike down more. But judicial independence has nothing to do with it. The Québec Bar’s arguments on this point are misguided and very weak. I’d be astonished if they were accepted.

Judicial Independence, Freedom, and Duty

Judicial independence is a familiar idea, though it is also a difficult one, in more than one sense. Difficult to accept, on the one hand, because independence from political, and ultimately electoral, control seats uneasily with our notions of democracy in which political power (which judges exercise, since they make their decisions in the name of the community) must spring from and be answerable to the voters. Difficult to work out, on the other hand, because even if we agree that, democratic qualms notwithstanding, that judicial independence is a good and important thing, we are bound to disagree about what, exactly it means or requires. To what extent can the executive be involved in the administration of the courts? Can the legislature lower the judges’ salaries along with those of all civil servants? Can it fail to raise these salaries for some prolonged period of time? People, and polities, committed to judicial independence as a principle can give different answers to these questions.

There is also a more profound difficulty with judicial independence, as Fabien Gélinas points out in a short and very interesting paper. (Full disclosure: prof. Gélinas taught me constitutional law at McGill, and I worked for him as a research assistant on several projects on judicial independence, among others, though not on this one.) As prof. Gélinas says, there some confusion not only over what judicial independence is, but also over what it is for. In fact, he argues, it has two distinct purposes. One is to ensure the impartiality of ordinary adjudication. Judges need to be independent and secure in order to avoid situations where they will have or will be seen as having an interest in the case before them. No one ought to be the judge in his own case. Nemo judex in propria causa. (As prof. Gélinas observes, the maxim, in this form, is not actually Roman―he traces it to Lord Coke. The Roman law had rules to the same effect, but neither as general nor as pithy.) The second purpose of judicial independence is to guarantee that the judiciary will, along with the legislature and the executive, have what Madison called “a will of its own”, an ability to stand up to the other branches of government. Prof. Gélinas says that this is peculiarly important in the modern state, where citizens recognize the possibility that the executive, and even the legislature, will abuse their power, and must be kept in check, particularly by means of judicial review of legislation. If courts are to expose and resist the abuses of the “political branches”, they must be, and be seen to be, impartial not only as between private litigants, but also between private litigants and the government itself.

This is interesting, but I think it does not go far enough.  The focus on judicial review is unjustified. The political branches are not just involved in litigation against citizens in cases involving claims that a statute is unconstitutional. Much more frequently, citizens challenge the legality of executive, rather than the constitutionality of legislative, action, and in such cases too the judiciary must be independent in order to adjudicate impartially. But notice too that we are still speaking of impartiality here―albeit between citizen and state rather than between two citizens. I think that the second purpose of judicial independence, one that arguably goes beyond impartiality, is to avoid situations where judges become instruments of state policy, as administrative agencies can be. Even where the state is not involved in litigation, it might still want, for policy reasons, the case to come out a certain way. Depending on its political preferences, a government might like courts to favour, say, employees over employers in unjust dismissal cases, or corporate defendants over plaintiffs in product liability cases. Judicial independence is means to make sure that if a cabinet minister in such a government picks up the phone, rings the Chief Justice, and tells her about the government’s preference for these outcomes, the the Chief Justice will tell him to go to hell―and that she will not suffer for it.

Of course, the legislature can, subject to the constitution, change the law to, say, make proof of liability for a defective product easier, or to expand the definition of what constitutes just cause for dismissing an employee. But it must do so publicly, after at least a modicum of parliamentary debate, and usually prospectively, so that those affected by the change will have time to prepare for it. A change in the law is also more difficult to reverse than a change in policy, so it is less lightly to be undertaken lightly, as a matter of temporary convenience. Judicial independence does not stop the government from acting―but it forces it to act transparently, democratically and, perhaps, for good reasons rather than on a whim.

The independence of the judiciary gives judges an extraordinary freedom. Nobody can force an independent judge to decide a case one way rather than another. (Appellate courts have some control over lower-court judges of course, because the latter do not like having their decisions reversed―but they will take the chance sometimes.) They can act in ways that are deeply unpopular and retain their positions. This is precisely what is worrying about judicial independence from a democratic perspective (though if what I said in the previous paragraph is right, judicial independence is also, in some ways, democracy-enhancing). But it is worth asking ourselves what it is exactly that judges are free to do.

The somewhat paradoxical, but reassuring answer is that, by and large, judges are free simply to do their duty. This is not to deny the existence of judicial discretion in hard cases. But even in those cases,  the judge has and keenly feels a duty to decide the case, according to what the law requires, or at least to a rule that fits with the law as it stands, after having respectfully listened to the parties and taken their arguments into account, and to give the reasons for his decision. A judge who is not independent―a judge, for example, who takes orders from the government, or who worries about being confirmed in his job by the legislature, or who is underpaid and seeks to ingratiate himself with a powerful litigant―is not free to do his judicial duty.

Yes, Minister, But…

According to the Globe and Mail, the federal Justice minister, Rob Nicholson, was recently asked about the propriety of a hypothetical (actually, rumoured) appointment of a cabinet minister to the bench. The Globe reports that

“[h]e said he did not believe that certain individuals should be ruled out as judges. ‘I’ve never gone out of my way to say that certain groups of individuals – people who have served, for instance, in political office – that they should be eliminated or sit out or anything else.'”

As a general principle, I think that’s right. There are fine lawyers serving in political office, and it would be too bad if we deprived ourselves of their services on the bench. During my clerkship at the Federal Court, I have had the privilege of working on some cases for Justice Yvon Pinard, who had been a cabinet minister and the government’s Leader in the House of Commons during Pierre Trudeau’s last cabinet, immediately prior to his appointment to the court (at the ripe old age of 36). I believe he is a fine judge. Indeed I’ve been told, though I haven’t verified this, that he is the judge of the Federal Court whose decisions are least often reversed by the Federal Court of Appeal. (This is surely not the only, maybe not even the best, benchmark by which to measure a judge’s performance, but it is worth something.) And there are many other examples of former politicians who went on to have fine, or even distinguished, judicial careers, in Canada and elsewhere. Perhaps the most famous of them was Earl Warren, governor of California, vice-presidential candidate, and later  an iconic Chief Justice of the United States.

The counter-argument, the basis for claims about the impropriety of appointing a politician to the bench, implies that such a judge would be partisan, biased, or insufficiently independent. But many lawyers are political partisans even without serving in political office. If we assume that they are capable of relinquishing partisanship upon appointment to the bench, I think we should also afford the same presumptive trust to former active politicians. Lawyers work for firms that appear before them when they become judges; or they work in government positions in which they consistently take the same side of an issue (as prosecutors for example), but we expect them to be able to serve as impartial judges. Again, there is no reason to treat politicians any differently.

That said, there is a qualification which, although valid for any lawyer aspiring to the bench, might be worth special emphasis in the case of active politicians. A lawyer’s conduct, especially his or her conduct in his or her chosen profession, can obviously be scrutinized for signs that the lawyer may not be able to live up to the standard of conduct expected of a judge. As the Canadian Judicial Council explains,

    • Judges should, at all times, exhibit and promote high standards of conduct so as to reinforce public confidence. Judges should strive to conduct themselves in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality and good judgment.
    • Judges should perform their duties with diligence while treating everyone before the court with courtesy and equality, being careful to avoid stereotyping or discrimination. Judges should avoid comments, expressions, gestures or behaviour which may be interpreted as showing insensitivity or disrespect.
    • In making their decisions, judges must be and must appear to be impartial at all times. Judges must be mindful of how inappropriate comments, improper remarks or unjustified reprimands can undermine the appearance of impartiality and actively work to avoid them.

Prior to their appointment to the bench, lawyers are not held to the same standard, and some deviations from it should not be disqualifying from a judicial appointment. But a lawyer who has a history of treating opponents as enemies, of going beyond the normal bounds of partisanship, of refusing to acknowledge contrary viewpoints, or of being hateful or contemptuous is, in my view, not qualified to serve as a judge. And, arguably, politicians are especially at risk of committing these deadly sins. A politician who claims that the opponents of his policy “stand … with child pornographers” probably should not become a judge. Yes, Minister, it is your colleague Vic Toews I am talking about.

Independence Enough Day

Ontario’s Small Claims Court relies on the work of 400 “deputy judges” – practising lawyers who take up part-time judging gigs, for an average of 19 sitting days a year. Subs. 32(1) of the the Courts of Justice Act provides that they are appointed by “[a] regional senior judge of the Superior Court of Justice … with the approval of the Attorney General,” for a three-year term if the deputy judge is younger than 65, or a one-year terms if he or she is older (subss. 32(2) and 32(3)). Subs. 32(4) provides that the appointments are renewable “by a regional senior judge of the Superior Court.” The Ontario Deputy Judges’ Association challenged the constitutionality of the reappointment provision, arguing that it compromised the court’s independence. Last week, Ontario’s Court of Appeal issued reasons for its rejection of the challenge, in Ontario Deputy Judges’ Association v. Ontario (Attorney General), 2012 ONCA 437.

The deputy judges’ sole argument was that the process of reappointment at the discretion of a regional senior judges did not appear to be sufficiently independent. Although it is not clear whether the argument was exactly the same on appeal, at trial, they had argued that the problem with this arrangement was that it did not grant deputy judges  “input from an independent body, the right to participate in some form of hearing or inquiry and the provision of reasons” (Ontario Deputy Judges Association v. The Attorney General of Ontario, 2011 ONSC 6956, par. 23).

As the court of first instance had done, the Court of Appeal rejected this argument. It held that, as the Supreme Court suggested in Valente v. The Queen, [1985] 2 S.C.R. 673, reappointment of a judge at the discretion of a member of the judiciary, unlike reappointment at the discretion of a member of the executive (such as the Attorney General), raises no concerns over independence sufficient to make it unconstitutional. It may or may not make the judge perfectly independent, but it makes him or her independent enough.

That sounds right to me as a matter of constitutional law. The constitution sets only a minimal standard, in judicial independence as in other matters. Whether a system that relies consistently on ad hoc deputy judges – who, presumably, are much cheaper than full-time ones – is the sort of civil justice system we want to have is another question, which should be addressed to legislatures, not courts.