In 1997, Peter Hogg responded to criticisms of judicial activism in the post-Charter era by suggesting that the legislature is instead involved in a flexible and dynamic relationship with the courts over Charter rights. He explained this concept, often referred to as the “dialogue principle,” in the Osgoode Hall Law Journal,
Where a judicial decision is open to legislative reversal, modification, or avoidance, then it is meaningful to regard the relationship between the Court and the competent legislative body as a dialogue. In that case, the judicial decision causes a public debate in which Charter values play a more prominent role than they would if there had been no judicial decision. The legislative body is in a position to devise a response that is properly respectful of the Charter values that have been identified by the Court, but which accomplishes the social or economic objectives that the judicial decision has impeded.
The concept of judicial dialogue is particularly important in Canada, where judges are not elected to their offices, maintain broad independence for their actions, and are empowered to strike down laws “made by the duly elected representatives of the people.” Judicial dialogue demonstrates that the courts still express considerable deference to the executive and the legislature in how policy decisions are made, and this deference is a central component to respect of the judicial function in a democracy.
Ultimate defence to the legislature is in fact built into the Charter itself. Justice Sharpe stated in 2003 in The Supreme Court of Canada in Changing Times,
Public opinion, not the Supreme Court, controls the use of the notwithstanding clause.”
But public opinion may affect the Court even beyond the decisions of the legislature through s. 33.
In an unprecedented move, the Chief Justice recently varied the decision by Justice Wagner over intervener groups in the appeal of Trinity Western University, et al. v. Law Society of Upper Canada. The initial decision appeared to exclude many LGBTQ advocates and organizations, including those who had already successfully obtained intervener status at the provincial level.
In the weekend following the initial decision, the Court apparently came under considerable criticism and scrutiny. No explanation was provided for intervenor approval, nor is there ever such explanations. But more surprisingly, no explanation was provided for the unexpected variance aside from a press release the same day,
In response to recent media reports (sic) concerning the orders of Justice Wagner and the Chief Justice granting 26 applicants the right to intervene in the upcoming appeals concerning Trinity Western University, the Court is releasing the following statement.
The Court does not give reasons for decision in motions for intervention. To do so would disproportionately burden the Court’s workload. In this instance, however, the concerns raised by some LGBTQ+ groups and others call for a response.
With Justice Wagner’s agreement and support, the Chief Justice issued a new order to add a second hearing day and give all the remaining applicants the right to intervene. This was a variation of Justice Wagner’s order and did not overrule his order, which remains in place.
The press release also reflects a dramatically different communications strategy from the past, which has historically been concerned primarily with administrative notices. This approach appears to be speaking directly to the public, via the Internet.
Initially, this might be interpreted as an administrative technicality over scheduling. Only a single day was set aside for the original hearing, and the subsequent variance allowed for a second day.
However, subsequent inquiries revealed that concerns over these views over social media are what prompted the changes,
…on Wednesday, Justice Wagner offered an explanation to The Globe and Mail. He said the court had initially allotted one day for the hearing. From 26 applicants, he chose nine, among which he believed the views of LGBTQ advocates were well represented. But when he was made aware of concerns on social media, he sought out Chief Justice McLachlin to see what could be done.
“She was looking for me and I was looking for her,” Justice Wagner said in an interview with The Globe. “We talked over the phone and discussed the matter, and we decided that it would be best to add another day, and have all the applications granted.” All 26 have now been given permission to intervene.
This reflects the first instance where the Court has directly responded to pressure from the public via social media over a decision of this type. It could even be described as an example of judicial dialogue – literally – with this public. Directly, and not through its elected representatives.
While some may see this as a refreshing move by the Court in embracing new technologies and communication strategies, others may see this as characteristic of a Court that is increasingly becoming technologically savvy through its own decisions. A growing number of recent cases and cases currently before the Court deal with technology or the Internet, which is to be expected given the growing importance of the Internet in our society today.
A more pertinent question might be to what extent should public sentiments, especially as expressed over social media, influence the Court’s decisions. Identifying societal values in judicial reasoning is not something new. Sean Fine described how judges view consensus in society as follows,
Judges look to public opinion to identify the central values of society that need defending, scholars say, and should not simply substitute their own values. At the same time, courts hesitate to put their own “political capital” at risk by moving too far in front of public opinion. On abortion and gay marriage, Canadian courts have tended to move in lockstep with public opinion.
In this particular instance I believe the Court made the right decision, as the issue before it is one of particularly complex balancings and nuanced societal perspectives. It’s not difficult to envision a situation however, where more extreme, radical and vocal voices drown out the rest and provide a distorted sense of community standards or the public’s perception of the repute of the administration of justice.
In the era of online partisan rhetoric, there are some concerns about using social media as a litmus test of public perception. As part of the Star’s series on the Age of Unreason, Edward Keenan recently stated,
There’s a significant and constantly growing body of research that shows that we use reason — we evaluate the facts and apply logic — primarily to convince ourselves and others that we are right. You can go online and look up “confirmation bias” or “motivated reasoning” and see that studies show, again and again over a period of years, people seek out and believe information that aligns with what they already believe and to disbelieve or avoid any information that contradicts those beliefs.
“Facts don’t change our minds” as the title of a New Yorker article from earlier this year put it — and when we encounter facts that contradict what we believe, we tend to stop trusting the person giving us the facts, rather than revise our longstanding belief. Such an experience may, paradoxically, reinforce our belief.
A study reported in an upcoming issue of the Journal of Experimental Social Psychology recently summarized in an article in Vox found that pretty much everyone — liberals and conservatives alike — will do a lot to avoid even finding out what their opponents think or why they think it. In both the United States and Canada, they found people would forgo money in order to avoid hearing about the political thinking of those they disagree with. Asked to place the experience of hearing the political views of opponents on a desirability spectrum, those on the left and right each rated it almost as bad as having a tooth pulled.
We may not be any more unreasonable than in the past, but if this feels like the Age of Unreason, perhaps it is because the science demonstrating it has piled up at the same time that our technology and politics make it more transparent to us than ever before.
Actual facts rarely form the basis these days of the opinions held by the public. For all the failings of the legislature, most decisions still undergo extensive debate between the members, and for the more complex issues, in depth analysis in committee. Evelyn Kwong contrasts the conduct we frequently find online,
Once camped under mythical bridges, trolls have crawled into every corner of your social life…
“Some people start out well, but then they go off the rails because they get very emotional, they lose track,” says Guy P. Harrison, an award-winning author, psychologist and social media researcher.
In a book coming out in November, Think Before You Like: Social Media’s Effect on the Brain and the Tools You Need to Navigate Your Newsfeed, he also explores the idea of false-consensus effect, a type of cognitive bias where people overestimate the legitimacy or belief of their own opinions, another reason why trolling online is so prevalent.
“Users online often don’t think they’re being weird or inappropriate, because they think they have a million people behind them,” he says.
Modernization of the courts is obviously a positive thing. But responsiveness to social media sentiment also opens up our legal system to greater ridicule and contempt.
The courts should express themselves in a manner which the public can readily understand and digest. The judicial system is one that serves all of us, not just the parties before it. The courts should also know that the emotional audience they are targeting, especially when behaving anonymously under a false consensus, may not necessarily respond in a tempered and thoughtful manner.