Column

The Problem of Judicial Arrogance

In her remarkable new book Life Sentence (Doubleday Canada, 2016), Christie Blatchford describes the Canadian judiciary as “unelected, unaccountable, entitled, expensive to maintain and remarkably smug” (at pp. 33-34). She argues that the process for judicial appointments and judicial discipline, along with the structure and conduct of an ordinary trial, create judicial arrogance. And that arrogance, even if not universal, is both systemic and common enough to corrode and undermine the pursuit of justice. She also suggests that actors in the legal system are complicit in judicial arrogance while simultaneously having considerable arrogance of their own: lawyers and judges alike deny the rationality and dignity of the “non-lawyer,” refuse to admit their own faults, and tend both to aggrandize official power and to subdue public criticism.

I wish I could disagree with Ms. Blatchford. But I can’t. I have to reluctantly concede the uncomfortable truth of her fundamental allegation: we undermine our legal system through our own arrogance, and particularly in how we create, encourage and reinforce judicial power, unaccountability and – at the end of the day – judicial conduct that can be fairly described as arrogant.

I’ll begin with the expected caveat. I don’t think all judges are arrogant. I don’t even think most judges are arrogant. Indeed, for the purposes of my argument it can be true – and may be true – that no Canadian judge is an arrogant person.

But I do think three things. I think some judges act arrogantly. I think our system both encourages and does not discourage acts of judicial arrogance. And I think acts that demonstrate judicial arrogance create injustice.

Three recent examples support my point.

The first arises from the decision of Judge Denny Thomas to convict Travis Vader of second degree murder under s. 230 of the Criminal Code, a statutory provision that has been unconstitutional for 26 years. As cogently argued by Peter Sankoff, Judge Thomas’s decision reflects poorly on Parliament for its failure to amend the Criminal Code. It may also reflect poorly on Judge Thomas’s criminal law competency.

There is, though, another way to look at it – at least potentially, depending on what emerges about how the s. 230 error came to be. Not surprisingly, the Crown did not rely on s. 230 in its written argument. Even less surprisingly, nor did the defence. The question is, then, how did s. 230 come to be so central to the decision? At least one possibility is that Judge Thomas on his own volition, without asking for further submissions from the Crown or defence on its applicability, decided to apply a different provision of the Criminal Code than those that were argued. I do not know if this is what happened. But if it did, it raises a concern beyond the error itself. It would take a particular and troubling kind of confidence for a judge in an adversarial system of justice, which relies on the evidence and argument of the parties, to think that he knew enough of the law and the facts to decide what law properly applies without either.

Judge Thomas did not need Parliament to amend the Criminal Code (although it should have). He did not need to know that s. 230 was unconstitutional. All he needed to do was consult with the parties on the key legal issue he thought arose in the case before releasing his decision. If he did not, that failure – the failure to consider the possibility that the parties may know more than you do or that they may have something useful to contribute to your decision-making process – at minimum suggests a lack of humility, and might even be described as an example of judicial arrogance. And as a lack of humility that led to injustice – the injustice of a person being convicted pursuant to an unconstitutional provision.

The second example arises from the hearing into the conduct of Justice Robin Camp. At his hearing, a significant part of Justice Camp’s explanation for his conduct was that he did not know the law on sexual assault; that he had received inadequate training; that he had conducted only one sexual assault trial prior to the Wagar case which gave rise to the complaint against him; and that, in general, “I didn’t know what I didn’t know”. Yet recall for a moment what Justice Camp has conceded was inappropriate in his conduct of the trial, and for which he has apologized: that he asked inappropriate questions of the complainant about her conduct while she was testifying, he made inappropriate personal comments to the prosecutor in response to her argument, and he fell prey to myths about sexual assault.

Given his defence and his acknowledged misconduct, consider this: Justice Camp knew that he had never studied criminal law or constitutional law at a Canadian law school. He knew that he had never practiced in those areas as a lawyer in Canada. He knew this was only his second sexual assault trial. He claimed that he had not received extensive training in the area. He also knew – he must have known – that as a judge in an adversarial trial one option open to him was to sit silently and quietly and listen to the witnesses and the lawyers, making such rulings as he was asked or required to make, and issuing a decision at the end. But Justice Camp didn’t do that. Instead he was actively interventionist, asking questions of the complainant, giving personal advice to the accused on his dealings with women in the future, and aggressively questioning the prosecutor.

This suggests that the problem is not just that Justice Camp didn’t know what he didn’t know. It was that he assumed that he knew a great deal. He assumed he knew enough to be interventionist in an adversarial proceeding – to not just be a judge, but to be an active and interventionist judge. Despite every reason to know that he was ignorant, he assumed he was one of, if not the, most knowledgeable person in the room. Justice Camp needed to know what he didn’t know. But, even more, he needed not to assume that he knew a lot. Making that kind of assumption is, I would suggest, a pretty good example of judicial arrogance. And, again, one that obviously led to injustice as evidenced by the Court of Appeal’s reversal of Mr. Wagar’s acquittal and the need for a new trial.

The third example is less extreme than the first two and is not directly linked to injustice. But it’s a problem I’ve written about before and in my view it is both troubling, and suggests the more systemic problem of a culture where conduct that looks like arrogance is permitted, and even celebrated. In the recent decision of the Supreme Court in Canada (Attorney General) v. Igloo Vikski Inc. 2016 SCC 38, the majority, in a judgment written by Justice Brown, invoked the spirit of Lord Denning to begin its decision like this:

In wintertime ice hockey is the delight of everyone. Across the country, countless players of all ages take to ice rinks and frozen ponds daily to shoot pucks at the net. Often the puck is stopped or turned aside by a goaltender blocking it with a blocker or catching it with a catcher. This is notoriously difficult business. The goaltender’s attention must remain fixed on the play, and not on off-ice matters. His or her focus must not drift to thoughts of the crowd, missed shots or taunts from opponents. And, certainly, the goaltender should strain to avoid being distracted by the question before the Court in this appeal — being whether, for customs tariff classification purposes, he or she blocks and catches the puck with a “glove, mitten or mitt”, or with an “article of plastics” (para. 1).

The argument in favour of decisions like this is they make the Court’s ruling accessible. Some have described this judgment as awesome. I’m sure it would lighten the dullness of life for law students required to read it. In my view, however, judgments like this also do something much less appealing and much more troubling – they turn a decision about the rights and interests of parties before the court into an opportunity to show off the cleverness and erudition of the judge.

Don’t get me wrong. I don’t think injustice arose from this example of judicial wit and rhetorical sprightliness. I too liked reading Lord Denning’s decisions in law school. My guess is the judge’s intentions here were well-meaning and light-hearted. But I nonetheless think it is a bad example to set. It reinforces the systemic judicial arrogance that Ms. Blatchford so vigorously skewers.

When a decision gets to the Supreme Court so much is at stake for the parties. Tens if not hundreds of thousands of dollars in legal fees. The substantive issue in the case. Sometimes their liberty. And the judge who uses that moment – where everything is at stake for the parties and nothing is at stake for him – to be clever and witty for a purpose extraneous to the decision itself has acted improperly. A judge can be clever and erudite. He can even be funny. But he should do so only where necessary to achieve justice in the matter at hand, not to entertain himself or bolster his reputation. Otherwise he has put himself and his interests in the decision and, by doing so, has contributed to a culture where arrogance, rather than humility, becomes the norm.

What follows from all of this? As I acknowledged earlier, I am not labeling all judges as arrogant. In two of the examples here the behaviour could perhaps be better described as indicating a lack of humility than as an example of arrogance. And even where a judgment or decision looks arrogant, that doesn’t mean that the judge who made it is an arrogant person. We are more than the things that we do from time to time, and our behaviour is conditioned by the expectations and culture of the roles that we play.

But I do want to say unequivocally that judicial arrogance is wrong. It is a wrong that gets committed too often and called out too little. Judges need to strive for humility – to recognize it as a virtue. Judges may be independent, but their independence exists to deliver justice to the public, not to give judges a public forum to say what they want, when they want, to whom they want. It requires, in short, humility. And in humility’s absence I cannot blame life-long observers like Ms. Blatchford from “falling out of love with the Canadian justice system (especially judges”).

Comments

  1. “The argument in favour of decisions like this is they make the Court’s ruling accessible. Some have described this judgment as awesome…[] In my view, judgments like this also do something much less appealing and much more troubling – they turn a decision about the rights and interests of parties before the court into an opportunity to show off the cleverness and erudition of the judge.”

    I feel like you’ve made a huge jump here, and have fallen victim to the same arrogance that you otherwise seek to denounce. Making the case that anything less than “legalese” or obfuscated jargon immediately becomes “showing off” strikes me as being more of the systemic elitism that obviously breeds and nurtures arrogance.

    While there is definite merit in how you describe “to be clever and witty for a purpose extraneous to the decision itself has acted improperly” Perhaps if that extraneous purpose is making the law more accessible it is an exception to that rule.

    There is a contradiction here, when on one hand you say “we undermine our legal system through our own arrogance, and particularly in how we create, encourage and reinforce judicial power, unaccountability and judicial conduct that can be fairly described as arrogant.”

    But then on the other hand you say maintaining inaccessible judicial content is of some special importance. It seems to me as though the attitudes of induced and artificial solemnity allow for the creation of arrogance. For who is going to be more arrogant than they who are constantly attributed such power and responsibility.

    as displayed by the following: “When a decision gets to the Supreme Court so much is at stake for the parties. Tens if not hundreds of thousands of dollars in legal fees. The substantive issue in the case. Sometimes their liberty.”

    In my opinion a little bit of levity and examples in so called “plain speech” might go a long way to remind the entire profession of what the law is all about, the protection of the populace and the society. Not the protection of the status quo.

  2. I very much agree with this piece. I only judge Small Claims, but work hard on remembering that I am there to maintain peace, order and good government, in addition to resolving a dispute to the best of my ability.

  3. I purchased a copy of Ms. Blatchford’s book as soon as I found a copy at a local bookstore.

    I recently filed a petition for judicial review (Vancouver Court registry no S-169130) and have noted in the book passages I could effectively quote when the matter is heard in court.

    One such passage is the closing of the first chapter, on page 51:

    “A day of reckoning is coming, though not in the way you might expect, and judges and lawyers have only themselves to blame for not changing with the times – and by times, I mean of course the last century.

    They work for us, after all, not the other way around.”

    Judicial arrogance is a fact. It is on display daily in courtrooms across the country, especially when ordinary citizens, forced to represent themselves, are facing professional counsel representing powerful interests. I speak from copious experience.

  4. Dear Alice,

    Rant on

    Get off the podium, please.

    There are judgments in which a judge’s display of non-law wit and erudition and cleverness are a problem. But Igloo Vikski isn’t one of them. At the least, it doesn’t denigrate any of the parties or make light of what level of goalie might have once used this equipment. I’ll put it this way. If we compared those goalies to lawyers, they’d not likely be appearing at a higher court level, unless called in at the last moment and forced to borrow other’s equipment. Even if the judgment were an example of your complaint it is at best a minor example. There are far better examples on this board. They have been discussed critically. I’m sure you are aware of them and, with respect, I doubt you had forgotten about all of these examples when you chose Igloo Vikski. Some might wonder why, then, you chose Igloo Vikski.

    With respect – a phrase that people who know me know that I rarely use / used, even when writing in factums – if, for whatever reason you have an axe to grind or an agenda (I appreciate that Justice Brown might (still) be a fan of the Oilers and you the Flames) – then this isn’t the place to grind the former or push the later. If there is, then your use of Slaw is, for me, an example of arrogance. I’m going to turn your words onto you. Substitute “academic” for judicial in the last paragraph of your screed.

    Or, if one prefers a different example of academic arrogance – not yours – that of another dean of a law school who (so I’ve read and heard) stood in front of an audience of first year types and others and asserted that that law school was the best law school in ____. Many a wag later noted that some of the local high schools could argue the point.

    Oh, heck: did I just display my erudition, if not wit; or, maybe, as the very old joke goes, I did but just half of it? I’m referring, of course, to my use of html coding.

    In any event, I disclose, here, to the readers at large – I suspect that Alice doesn’t need this discosure – that I consider myself a good friend of Mr. Justice Brown. Now, some may say that I should have disclosed that at the beginning. If so, I’d ask why somebody might say that unless it is to imply, ever so arrogantly because it is done implicity and so cowardly, that my friendship makes me biased; so that I ought to have alerted you – the generic you – to that at the start. If reading my disclosure changes your opinion of anything I wrote, then perhaps you need to take a better look in the mirror. Or take a better selfie.

    I now return to my retreat in a place oft-described as a bastion of academic arrogance, where the depth and breadth of knowledge of every one of the graduate students I’ve met, so far, is breath-taking. I wrote “so far” because I may be wrong: I have a black swan as my tablet wallpaper and sometimes wore black swan cuff links in court. On the other hand, it was just ranked as the top university in the world, so maybe there’s a correlation: between their knowledge and Oxford’s ranking, that is, not my presence. That, conceivably, would have lowered the ranking if factored in.

    Rant off

    David

  5. I do not agree that Justice Brown’s writing style was arrogant.

    First, the subject matter is not sensitive and the comments are unlikely to deeply offend someone. Second, for someone like me, who knows very little about hockey, the description can actually help visualize and contextualize the problem. Third, I agree that such a writing style, when used sparingly and appropriately, makes judgments more accessible. Can it not be argued that such writing is the opposite of arrogant? Justice Brown simply acknowledges that the “non-lawyer” public would likely view this legal problem with incredulity. Ironically, what if opposition to such a writing style is in itself founded in legal arrogance? In effect, the argument here is: how dare a judge make light of any legal “rights and interests”? But does it not strengthen the ivory tower if the “non-lawyer” public’s perspectives are ignored? Why should the law be above humour?

    Judgments are not only written for the parties, but also for the public. The federal government and Igloo Vikski are hardly vulnerable parties. Although they are accountable to citizens and shareholders, respectively, they are unlikely to suffer serious harm from this judgment. That being said, I do not know the accounting behind this tariff. If the difference in the gloves’ classification could cause serious financial harm to Igloo Vikski, not just an insignificant change in profit margin, then humour is inappropriate. Many lives would be affected. And that is the real issue with humour in this judgment: it is not that Justice Brown’s writing style is arrogant, but rather that using such humour requires sensitivity and precision. Toeing this line is tricky.

    I do take issue with the judgment’s first sentence, however, that “ice hockey is the delight of everyone”. It certainly is not for me. Soccer is much better.

  6. If cricket is baseball on valium, then football is hockey on diazepam.

    Prove or disprove (in UK English*) in under 50 words. The decision of this judge is final.

    I’ll stand the winner his or her favourite tipple, but, for now, he or she will have to claim it in Oxford or its environs.

    *There are five, and only 5, rules: (1) New Zealanders are permitted to use 2 vowels, unless one of the vowels is a “y” in which case the number is 3; (2) Australians are not permitted to use “mate” to mean whatever it is that Australians usually use “mate” to mean. Or “oi”; (3) Canadians may not use the passive tense, nor any form of “please”, “thank you” or “sorry”; (4) there is no number 4; and (5) any use of “no” followed by “worries” shall be grounds for automatic disqualification, at the sole discretion of the judge.

  7. Hi all,

    Thanks for your comments. A couple of points of clarification.

    First, it is absolutely fair that people could characterize Justice Brown’s judgment in different ways. I noted that they had done so in my comment. This is a question where I am well aware that not everyone would be as troubled by it as I was. I’m glad that no one has commented to challenge my first two examples which, of course, are far more troubling. And that no one has disagreed that humility is a judicial virtue.

    Second, it’s definitely not the worst (see, e.g., the link I included on my comment on the judgment of Justice O’Donnell in R. v. Duncan).

    Third, my issue with Justice Brown’s judgment is not his discussion of hockey (whether that would be possible to do well is a different issue), it’s his referencing Lord Denning. A hockey joke is accessible; an homage to Lord Denning is an inside-baseball joke for the enjoyment of lawyers and law students. In addition, Lord Denning is a very troubling judge to celebrate. Yes, he wrote clever judgments, and sometimes he meted out justice, but just as often he inflicted injustice and did so because he valued his own wit above a sensitivity to the law and the interests of the parties he was actually hearing. He *always* thought he was the smartest guy in the room – he may be the most arrogant judge of the 20th century. The last thing any high court should be doing is communicating that in Canada we want a bunch of Lord Dennings running around.

    Fourth, at the SCC things are different. You set the tone, and you have to be more careful. With great power comes great responsibility and all that.

    And finally, while of course denying accusations of one’s motivations, is always a fruitless exercise, especially in internet land, I don’t know Justice Brown, I’ve read none of his judgments other than this one, and I have no personal thoughts about him one way or another. I have heard from people who know him that he’s a lovely guy, which is why I was clear that I very much doubted that coming across as arrogant was his intention. But my job as an academic is to hold up a mirror to the behaviour of lawyers and judges, and to ask the hard questions. People don’t have to agree with me, but that’s what I’m here to do – and if I make people think about the point, even if only to disagree, as people have done here, with the appropriateness of this particular example, then my work is done.

  8. Thank you Alice,

    If what you say about Lord Denning is true then it strikes me that what is needed is an exorcism, for his spirit surely lives on (and may even be gaining strength).

    I’d like to offer just one example of some of the judicial arrogance I’ve experienced.

    Relatively recently in my career as a litigant I discovered that with a single link – http://www.canlii.org/en/bc/#search/jId=bc&sort=decisionDate&id=Budgell – I can access on CANLII most of the formal results of my appearances before one tribunal and in B.C.’s two superior courts. (There are other results that link doesn’t find, including two occasions in two different courthouses when I contended with Crown Counsel.)

    The substance as well as the tone of the fourth decision in that list – http://www.canlii.org/en/bc/bcsc/doc/2005/2005bcsc487/2005bcsc487.html – reflects what struck me from the moment Justice Rogers opened his mouth as hostility he could barely contain. His first comment had to do with the way I was dressed. It was inexcusable he said that I had failed to wear a tie and I was told that I should not return to court for the second day without one. I said nothing in reply and did wear a tie on the second day.

    You can read just the paragraphs under CONCLUSION and ANCILLARY MATTERS to appreciate how overt the hostility was.

    The entire trajectory of litigation I’ve followed – except for the first decision – is about one provision of one provincial statute. Justice Rogers confirms that I had an issue with a certain proprietary legal term – the term that was prominently featured in the debate of that provision that took place in the Legislature on November 26, 1992, but that subsequently mysteriously disappeared from the provision. My curiosity about what that term meant, its appearance (twice in two successive lines) in the original version of the provision, and its subsequent removal, resulted in my commitment that Justice Rogers also noted, with obvious disdain.

    The litigation I’m currently pursuing, that began with a simple FOI request that the BC Labour Relations Board received last January, is also about that statutory provision, but it isn’t about that proprietary legal term. There are other problems with that provision.

    So, I’m hoping to end up in front of yet another BC Supreme Court judge. I’ll be sure to wear a tie.

    One of the authorities I could (and if my preparation is sufficiently comprehensive, will) quote is Charles Dodgson’s character Humpty Dumpty. All the arrogance in the world doesn’t license anyone to make a mockery of language.

  9. Dear Alice,

    Explanation accepted, if that matters. Thank you.

    I’ll agree that incompetence connected to a belief that one knows the applicable area of law and a related unwillingness to make efforts to learn the area adequately could be related to an attitude sensibly described as arrogant.

    I’ve yet to read Ms. Blatchford’s book but, from what’s been mentioned here, the individual and institutional conduct she’s apparently described as arrogant, as lacking humility, seems something more than incompetence even if, in some cases, incompetence plays a part.

    It seems to me that your examples of judicial conduct, other than that of Justices Brown and Denning, are a type of that form of arrogance.

    For what it’s worth, there are equally bad, repeated, examples elsewhere in the common law Canada judicial system. A question that might be asked is why we too often find, based on what is in the law reports, the same judges repeating the same mistake of law over and over again. That must mean that the judges are being assigned to the type of case where they’ve the opportunity to make that mistake, with impunity, over and over again.

    Cheers,

    David

  10. This has been an informative discussion about your third example. I am also appreciative, Professor Woolley, of your concise description, in your comment, of your job as an academic in law; I’m somewhat gratified that it tallies with my own recent, and regrettably less concise, blog post on that topic: http://ctjester.blogspot.ca/2016/10/why-legal-academics-are-important.html.

    All that being the case, it seems to be to be an unfortunate necessity to also explore your second example. I think it would have been circumspect to disclose, in citing it, your own role in triggering the inquiry that Mr. Justice Robin Camp is undergoing. And apropos that, there is an unfortunate convergence with the topic of arrogance that I feel must be pointed out, partly because I am very concerned about the degree to which legal academics are choosing to do far more than hold up mirrors. I submit that choosing to do more is an expression of arrogance.

    If it is the job of academics to hold up a mirror, the implication is that the decisions to act are left up to those who see their reflections.

    But in the case of Mr. Justice Camp, rather than analyzing and then leaving it up to him and the managing justices to take or not take action, you and three other academics chose to take that decision out of their hands and make a complaint to the CJC. In taking that action, it seems to me that you not only took the prerogative to act out of the hands of the judges, but also that you took the prerogative to complain out of the hands of the public; specifically, perhaps, in this case, the rape accuser (who, as I said in my blog post on the Robin Camp inquiry, might not have chosen to make a complaint). For academics to take this action strikes me as having been an act of intrusion into two other domains, therefore.

    Is interventionist scholarship kosher?

    What happened after you made your complaint cannot be laid at your door – for the subsequent media hysteria and witch-hunt atmosphere, for example, a number of other academics should take responsibility – but therein lies the rub: how is responsibility for such an action “taken?” How are academics held accountable for actions they take outside their domain? The fact is that no one can hold any of the academics who created and escalated this problem responsible for anything. There are, I’m sure, good expressions in law for the connection between appropriate sphere of influence and answerability for it. Transcending that equation, it seems to me, is an expression of arrogance.

    In reading the full transcript of the Wagar case, I find it difficult to conclude that Mr. Justice Camp was being arrogant. It is my impression that he was being very conscientious about doing his job, to the point that he actually submitted the sacred tenets of feminist law to fundamental legal doctrine. The transcripts can be accessed via links on these two excellent analytical videos, which, if anyone is interested in the case, are also very illuminating: Clary Jaxon at https://www.youtube.com/watch?v=jbObqf35_5Q and Diana Davison at https://www.youtube.com/watch?v=13Z3p0jHVHw.

    Being a judge is conducive to arrogance, no question. And that perhaps is why its doctrines demand such strict servility to the law; it is in the duty for the strict and correct application of legal doctrine that the key to judicial accountability lies, as I think the comments earlier this year of Mr. Justice David Stratas made clear (succinctly described and linked here: https://doubleaspectblog.wordpress.com/2016/01/15/taking-doctrine-seriously/). What legal academe should be doing, it seems to me, is holding up mirrors to judges to see how well they have conformed to that duty. When legal academe instead chooses to evaluate how judges have conformed to the academics’ personal opinions – and worse, to their belief systems – as I have seen happen in critical discussions among law professors of the Wagar case and, god help us, of the very legally correct Ghomeshi decision as if it were regrettable, it is legal academe that is being arrogant, not the judges in question.

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