Chapter 1

Introduction

In this book, I explore the role of an appellate judge in Canada. I write it with some trepidation. Many of the issues I discuss are difficult and controversial. I am a judge, not a legal philosopher. No doubt many judges, lawyers, academics, non-lawyers, and politicians will disagree with some of the views I express. But I decided to write the book anyway. The process would force me to clarify my own thinking on the judicial function, and it seems to me that there is something to be said for setting out the views of an experienced Canadian appellate judge in the early years of the twenty-first century.

My goal is to explore the role of the judge and the art of judging. What exactly do judges do? What is properly within their role, and what falls outside? How do judges approach their decision-making task? I can only speak for myself, but I will speak as frankly as I can. I will do my best to provide insight into the mind of one working judge. I hope that my account will be of interest and accessible not only to judges, lawyers, and law students, but also to non-specialist readers who are interested in the legal process.

The book is based on my experience of fifty years in the law. In this chapter I will briefly describe my path to provide some context for my views on the role of the judge. I will outline the experiences that have been formative for my legal career: my intellectual formation as a student at the Faculty of Law, University of Toronto, and a graduate student at Oxford; my experience in practice with MacKinnon, McTaggart; my academic career as a professor of law; my work with Chief Justice Brian Dickson at the Supreme Court of Canada; and finally my experience as a trial and appellate judge in Ontario.

Law School

I entered first year at the Faculty of Law, University of Toronto, in 1966, and I immediately knew I had found my calling. It was the subject I had been looking for. I had studied political science and history at the University of Western Ontario, and to this day I remain very interested in both subjects. I had seriously considered doing graduate work in political science but, in the end, I was not convinced that I was suited for a career in that realm – whether it be in academe or in some form of public service.

I quickly learned that the study of law had an astonishingly wide theoretical dimension. My professors, it seemed, could not even agree on a basic definition of law. In the late 1960s, there was (I should add – there still is and probably always will be!) a lively debate about the very nature of law. For example, some professors seemed aligned with English legal philosopher H.L.A. Hart, who propounded a compelling positivist account of law. Hart conceived of law as a self-contained, integral discipline, the validity and force of which did not depend upon external moral values. Any reassurance I could glean from Hart’s crystal-clear and pure vision of the law was challenged by other professors who sided with American theoretician Lon Fuller. Fuller took a fundamentally different view of the relationship between law and morality. Fuller argued that there are “principles of legality” that express the inner morality of law. These standards are integral to the concept of law and ensure that law embodies the moral values of respect, fairness, and predictability. According to Fuller, nothing that fails to meet these standards can qualify as law.

While Hart and Fuller debated whether the law was dependent upon external moral values, Hart also debated Patrick Devlin, a prominent English judge, about the role of the criminal law in the enforcement of morality. Legal realists were arguing, rather cynically I thought, that the law as expounded by the courts was nothing more than a product of the personal and political views of the judges.

I was interested in these theoretical debates, but in the late 1960s legal theory was not the focus of our legal education. I have to admit as well that if there had been nothing more to law than legal theory, the study of law would not have captured me as it did. What I found truly compelling, and what our legal education stressed, was that law combined the theoretical dimension with the need for hard-nosed, practical reasoning to resolve the multitude of real-world problems that profoundly affect individuals and our society. I found the combination of a challenging intellectual discipline directly related to problems that matter in the real world to be compelling.

As I went from one class to another, I was exposed to the firstclass minds of my professors and my fellow students, struggling to sort out the intricacies of crimes, torts, contracts, and property. I studied law in the era of the case method. We were assigned cases to read before each class. Most of the cases were leading decisions that stood as precedents, but some were relatively obscure cases that captured the professor’s attention because they raised novel and intriguing points. We were expected to have identified the facts that mattered and to have disregarded the facts that did not count, to have identified the key issues, and to be ready with our own critical assessment of the court’s decision. Most professors proceeded by asking questions, only grudgingly giving any indication of what they thought the answer should be. We were told that there were textbooks that purported to state the law. Some of our professors had written these books, but reliance on texts was discouraged. There was no substitute, we were told, for struggling through the mess of experience revealed by the cases, to build our own capacity to “think like a lawyer.”

The study of law, unlike other disciplines, and certainly unlike the sciences, is not incremental. First-year students do not start with the basics and work their way up. Law students hone their skills by immediately focusing on tough cases and cutting-edge issues. This is both bewildering and exhilarating. Bewildering because most of us come to the law with the belief that the law is clear and definite. We think that once we learn the rules, we simply have to apply them to the facts. The first-year law student quickly learns that the law is often less than clear. Difficult cases arise and there is no obvious answer. Those were the cases upon which as fledgling lawyers we cut our teeth. Our professors were not interested in the easy cases at the shallow end of the pool. We were forced to plunge immediately into the deep end. We had not yet learned to swim, but we discovered that, with considerable effort and application, we could make it back to the edge of the pool.

I recall, as a first-year law student, being astonished to discover how uncertain the law is. The professors had lots of questions but very few answers. I thought they were playing games with us. But now, fifty years later, the game still goes on. What was once a curiosity has now become a responsibility. As a judge, I have the responsibility to decide cases. Often the decision is anything but clear.

Where should the judge deciding the case look for guidance? Is the point at issue governed by a common law precedent? If yes, does the judge have to follow the precedent, or should it be distinguished, ignored, or overruled? What policies did Parliament intend to implement when it enacted that statute? Is the result that seems to follow from applying the precedent or the statute fair and just? If not, is there anything the judge can or should do to reach a just result? What are the broader implications for society when deciding a case this way or that? How should the law be changed to achieve the goal of justice for all in a free and democratic society? Is this a change the court can make, or must the problem be left to Parliament? There were no easy answers, and the law school debates about these questions bear remarkable similarity to the discussions my colleagues and I have as we work out how to decide the cases that come before the court.

In this book I will do my best to explain, on the basis of my own experience, how I think judges should resolve these issues.