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.