Friday, 2 September 2016

Judicial accountability: the flip side of independence

I recently made a submission to the Canadian Department of Justice's call for input on judicial discipline procedures.

The submission ran, unfortunately, to 7 pages, so I am not going to post it here. I heard about the call for input just a week before the deadline and so fell into the paradox of not having the time to be succinct. However odd that seems, it is consistent: one needs time to edit, focus, and restructure. Since I did not have that time, someone at the Department of Justice is going to be earning their keep reading my submission, and I apologize to them for that.

But something interesting happened as the call for input was heard, broadcast and acted on. One of the few bodies that heard the initial call was CALE - the Canadian Association for Legal Ethics. They wrote a nice submission, and released it publicly, so it could be seen that, like other people with whom I discuss legal issues, there was a strong sense that people have far more to say about the judiciary than the questions posed in the consultation paper asked. 

Much credit is due the Department of Justice (Canada) for launching this review of judicial discipline. I don't know what brought it on, and I don't know whether it has sincere reformatory intent or is just for show, but it is a good call to have made and a good time to do it. 

But what is evident from the public mood at present is that it's not going to be easy to constrain the review to the subject of judicial misconduct. The whole continuum of judicial conduct - including both conduct and performance - is very much in people's thoughts, to the point I think the DoJ will have trouble restricting its review to the narrow tweaks it seems to have in mind: slight changes to committee structure here, to type of representation there; how costs are borne, and so on. 

CALE said in their submission, and I also said in mine, that it is time to alter the make-up of the Canadian Judicial Council altogether; to put the oversight of judicial conduct into the hands of civilians. 

I actually wish this were not the only answer; and perhaps there is a better one. But it may simply be too late for anything else. 

According to the consultation paper, handling of judicial misconduct has been in the hands of judges themselves since 1971. The Canadian Judicial Council (CJC) was formed in the wake of the Landreville inquiry in the 1960s, which was handled by parliament in what sounds like a comedy of errors. 

As recounted by the late Mr. Justice T. David Marshall in his book Judicial Conduct and Accountability, the CJC has, since its inception, also had a role in judicial continuing education, along with two other bodies of judges formed at about the same time: the Canadian Institute for the Administration of Justice, and the Canadian Association of Provincial Court Judges. In other words, judges have been self-managing for over 40 years. 

In that time it seems that judicial independence has come a long way. There is an extraordinary document available on line about the Ontario Court of Justice, a 1000 page pdf that I hope will someday be available as a book because I cannot justify printing it all, that tells a pretty rollicking tale of judges and their interactions with governments and communities. As far as I can glean from this and other sources, judges are now possibly more untouchable by democratic hands than they have ever been. 

It is my sense that the task the CJC has pursued more zealously than any other in its 40-year-run is the assurance and defence of judicial independence, and that its most ardent efforts have been put toward making the judiciary independent specifically of government. 

I note that the term "judicial independence" is almost always articulated in the same breath with "accountability," and indeed, the two should be inseparably interdependent. Quite simply, the more independent of government the judiciary became, the more carefully structured and specific should its accountability measures have become. This does not seem to be the case. What we have now is a situation in which independence is virtually absolute, while accountability is nebulous to the point of being voluntary. 

We have had, I must add, the ineffable good fortune that most judges hold themselves stringently to very high standards. But that sort of thing does not happen by accident. I suspect that in the past, high standards have been the result of both the elite culture that prevailed in law and a degree of fear of political involvement if judicial performance did not render a satisfactory result. 

As absolute judicial independence has been taken increasingly for granted, that fear has, I think, abated a little. And because law faculties have not escaped the impact of utopian thought on university campuses, the intellectual standards in law have slipped considerably. Mr. Justice David Stratas of the Federal Court of Appeal has referred to "The Decline of Legal Doctrine.

Add to this the degree to which the Charter has politicized the courts, and we have a judiciary that is independent from government to the point of being immune to repercussions other than what their fellow judges are willing to mete out - yet quite startlingly not independent at all from prominent social and political movements, many of which regard the rule of law as an inconvenience.

In short, all has not been well in the judiciary for the past 40 years. They're still all really smart people, and the law is still an incredibly beautiful instrument often being very elegantly played, but too often the interests being served are not those of the public, of democracy, or of justice. What has been done instead is that judges have been happily playing the tunes of certain orchestras who can afford lawyers, who in turn have been able to play the courts like a piano. 

I have a bad feeling the judiciary does not know this, though, with just a few exceptions. As I listen to various judicial speeches, and read judicial decisions, including some strongly split decisions of the provincial appellate courts and the Supreme Court of Canada, I frankly get a sense that the majority of the judiciary is telling itself a story of justice that only the judiciary itself believes. 

It's kind of like my mother-in-law dying her hair. She is the only one who believes that that improbable shade of orange disguises her age. 

The Canadian judiciary, in its decisions and speeches, refers often to public confidence in the courts, the administration of justice [not] falling into disrepute, and the open court principle (I am refraining from pulling specific examples, since I am not here to embarrass judges; suffice it to say this habit permeates all levels of court). All of this is done in the apparently unshakeable belief that the heavens have not already fallen, and without a vestige of uncertainty.  

But one need only to tune in for a short time to the conversations among (and about) self-represented litigants to realize that uncertainty would be very strongly merited. In fact, one need only tune in for a short time to the academic literature in law, or to conversations within law generally, to realize that judicial performance is even internally being viewed with increasing disenchantment, on both the conduct and performance fronts.

The performance problems are not legal or even judicial disagreements about the fine points of law. What they are, if one looks really closely, are judges using the law for purposes for which it was not intended, and thus abusing their power free of repercussions, and justifying the whole in the name of independence.

It seems that only the mainstream judiciary still believes the narrative of its own virtue that judges have been telling to themselves and each other for so long and so loudly that they have failed to listen to what is being said by others - especially by the public of whose continuing confidence they have so serenely been assuring themselves. 

The task of judicial discipline reform now becomes the question of how to engender substantive change where there is such sublime self-satisfaction with the status quo.

The recommendations I made in my submission to the DoJ included putting intake of complaints into primarily civilian hands, and to cast the net wide with the objective not only of meting out discipline where warranted, but of receiving and processing a large quantity of feedback. Feedback is a rare commodity in law, and judges should be avidly consuming it, individually and collectively, instead of persistently and determinedly circling the wagons and fending off input. 

The new egalitarian world means not only that we grant humanity to those previously deemed not worthy of it based on sex, age, race, infirmity, or occupation. It also means that we recognize human frailty in those previously believed to be elevated above the rest of us. 

Had the judges themselves thought to start listening a few decades ago, we would not be at this stage now. Instead, they selectively deafened themselves. There may actually be such a thing as too much independence, and I think the judiciary long since achieved that. What the DoJ is proposing so far is too little, too late, but relative to what judges themselves have done, it is at least a step in the right direction for a change. 

It is time for judicial accountability to catch up a little with judicial independence.