Il n’y a, en général, que les conceptions simples qui s’emparent de l’esprit du peuple. Une idée fausse, mais claire et précise, aura toujours plus de puissance dans le monde qu’une idée vraie, mais complexe.
~ Alexis de Tocqueville, De la démocratie en Amérique
De Tocqueville was likely not the first to say it, but his observation that democracies love simplicity came with the warning that people will embrace a clear and precise lie sooner than a complex truth. Add the frenzy of insurrection to the power of the people, and we can, through his eyes, see the contrast between the French and American republics at the end of the 18th century. One can argue the relative complexity of the American constitutional documents, intended to buffer the excesses of direct democracy, has acted as a restraint against mob rule.
The power of simplicity has long been a challenge for jurists in a democracy. Statutes and common-law principles tend to be blunt instruments, especially in a pluralistic society. The task of deciding whether those blunt instruments apply to a particular set of facts falls on the judiciary. Beyond the Ten Commandments, codes of civil and penal laws necessarily involve that critical extra step for implementation. For example, every criminal offence and every civil duty of care that does not impose absolute or strict liability contains both an active and a mental element. Instead of explaining the method by which the law operates, judges and lawyers often fall into the pastime of grafting a second layer of law about which there is little certainty. Breaking down the written words of the law into precise and constituent elements is a judicial task; building a superstructure above the text is not. The key to the constitutional principle of “peace, order and good government,” not unique to Canada, is a judiciary which understands its role as facilitator of civic governance. Turn the Constitution into an alphabet soup of subjective and unpredictable combinations, and our courts will be working against its proper function.
A Problem of Legal Training
Lawyers and judges are trained to build constructs out of legislative and common-law principles, based on a theory that there are both written and unwritten laws. In doing so, we mistake the underlying or interpretive logic of statutory instruments and common law precedents for a separate set of rules. Even the common law is a body of rules that exists only in the written texts of judicial precedents, so expansion of law instead of carving down its bluntness can be viewed as treading on elected power. We often misconstrue our duty and try to ‘build upon’ the law, instead of interpreting the law as it applies to the parties’ situation. It is time to think hard about what are doing, and whether what we are teaching is right. We have to decide whether we are jurists or social scientists. The further we stray from being jurists, the utility and legitimacy of our professional expertise wears thinner.
Marbury v. Madison is the considered the seminal decision in judicial review of executive and legislative action. At least, that is what the U.S. courts have subsequently repeated. In fact, the 1803 decision of a fledgling American high court represented a Mexican standoff between executive and judicial power in which the limits of the U.S. Supreme Court were sharply defined. Was Marbury a boundary wall it built to assert its jurisdiction, or one behind which it retreated?
One criticism that can be leveled against the Marbury court was that it institutionalized a mechanical, semi-democratic vision of judicial action. American governments now operate within a constitution which can enable laws forcing Americans to register for health care but cannot allow the government to require them to register assault weapons. The Supreme Court of the United States effectively claimed title to the country’s basic law instead of recognizing it as a social contract between the state and its citizens – instead of interpreting it as a working document for all three branches of government. As a result, the concentration of constitutional power in the hands of the judiciary meant the legal history of a powerful nation was determined more by litigation over the intent of revolutionary “Founding Fathers” than by democratic process.
In the current row between Canada’s Prime Minister and the Supreme Court Chief Justice, no one has drawn the comparison with the landmark 1803 decision. It is about time someone did. There are some superficial similarities in subject matter. William Marbury found himself in the middle of an argument over the technicalities of a judicial appointment by an outgoing president. In the end, the court ruled against the completion of the appointment. Those wanting a reminder of the details of Marbury can read the excellent synopsis in Wikipedia.
If we suspend for a moment the lawyer’s proclivity to look for analogies or to pick at differences in specific legal issues, we can see in Marbury a case study of a relatively organic formation of the division of powers in the United States in the 19th-century. The case study allows us to see the plot structure of the current Canadian drama between the government and the Supreme Court with the aid of X-ray vision.
This morning, the Chief Justice of Canada responded to a statement from the Prime Minister’s Office that, last summer, she initiated a call to the Minister of Justice regarding the nomination of Justice Marc Nadon. Media reports have suggested the eruption of a very public battle of statements. As lawyers, we respect and honour our Chief Justice, and take her at her word. As I read her office’s release, I wondered: What could have possessed her?
The press release issued by the Chief Justice’s office described the July 31, 2013, interaction with the Minister thus:
On July 31, 2013, the Chief Justice’s office called the Minister of Justice’s office and the Prime Minister’s Chief of Staff, Mr. Novak, to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court. Later that day, the Chief Justice spoke with the Minister of Justice, Mr. MacKay, to flag the potential issue. The Chief Justice’s office also made preliminary inquiries to set up a call or meeting with the Prime Minister, but ultimately the Chief Justice decided not to pursue a call or meeting.
If an issue is worthy of being “flagged” in this manner, there has to have been some recognition that the controversy might end up in litigation if the candidate so “flagged” was then nominated. In order to assess the significance, if any, of “flagging” an issue, I turned to the code of conduct for judges published by the Canadian Judicial Council (CJC). Commentary D.9 to Part 6, Principle D.3, of the CJC’s Ethical Principles for Judges, p. 43, states:
D.9 The duties of chief justices and, in some cases, those of other judges having administrative responsibilities will lead to contact and interaction with government officials, particularly the attorneys general, the deputy attorneys general and court services officials. This is necessary and appropriate, provided the occasions of such interactions are not partisan in nature and the subjects discussed relate to the administration of justice and the courts and not to individual cases. Judges, including chief justices, should take care that they are not perceived as being advisors to those holding political office or to members of the executive. (underline added)
A quarter century ago, I sat in an official examiner’s chambers across Jim Flaherty (still a senior motor vehicle litigation lawyer) as he questioned my client, the surviving mother of an accident victim who had perished at the hands of a drunk driver. He hadn’t exactly over-prepared for the encounter. There were none of the usual probing questions. He entered the room, offered my client his condolences, asked some standard discovery questions, and left. In retrospect, he knew what I had advised my client he should know: that it did not serve his insurer client’s interests to be on the wrong side of justice.
Last year, those who witnessed Flaherty’s response to Toronto Mayor Rob Ford’s disgrace saw a Ford family friend, federal politician and former provincial attorney general grapple with the right thing to do and say when asked to comment. “At the end of the day,” Flaherty said, “he [Ford] has to make his own decision about what he ought to do.” In hindsight, this terse statement was the most measured and meaningful. Ford’s reported response to Flaherty proved a rare moment of genuine contrition from the mayor.
In a much-anticipated research paper on training lawyers to be ethical professionals, Shelley M. Kierstead of York University’s Osgoode Hall Law School and University of Toronto’s Erika Abner have published groundbreaking work in “Learning Professionalism in Practice.” How and where do lawyers learn to be professional? What are the modes of learning? Is professional ethics the responsibility of law society regulators, the legal academy, or the profession? Can ethical lawyers bring “swimmers” onto their lifeboat?
The paper, funded by a fellowship grant from the Chief Justice of Ontario’s Advisory Committee on Professionalism (now the OBA Foundation Chief Justice of Ontario Fellowships in Legal Ethics and Professionalism), explores the occupational setting of lawyers as an environment replete with “micro-ethical moments”:
“Mindful practice, which incorporates self-awareness and critical reflection on these micro-ethical moments, is learned through apprenticeship models that allow for on-going modeling, close observation, reflection and feedback. In particular, new learners learn to develop a certain level of comfort with uncertainty – a hallmark of professional practice.”
To review the abstract and paper, click here. For more information regarding the fellowships, visit the OBA Foundation Chief Justice of Ontario Fellowships site.