The Cambridge Lectures 2019
Remarks by the Right Honourable Richard Wagner, P.C.
Chief Justice of Canada
Good afternoon, everyone, and thank you Chief Justice Bauman for your kind introduction. And thank you also to Guido for having set the table so perfectly for my presentation, although you will all agree with me that his is a tough act to follow. Thank you, and hello to everyone. I am so pleased to be back in Cambridge to take part in these discussions, which have become for me something of an unmissable event. Indeed, it’s always a pleasure to attend the Cambridge Lectures, and I am particularly honoured to have been given the opportunity, as Chief Justice of Canada, to speak before you all today.
I am always impressed with the high quality of the lectures and the insightful discussions we have here. I am also impressed by the seamless organization of this event, which I am told has a record attendance this year. On behalf of all of us, I therefore wish to thank the organizers of these Cambridge Lectures, including the Chair and President, Justice Robert Sharpe, as well as the Institute’s Officers and Directors who have allowed us to hear from a stellar line-up of speakers, and also all those behind the scenes who have spared no effort to make these Cambridge Lectures a resounding success yet again this year.
I would also like to acknowledge the presence today of the Honourable David Lametti, Minister of Justice and Attorney General of Canada. Minister, on behalf of all of us, welcome.
Like all of you, each time I attend the Cambridge Lectures, I come away with a great deal of food for thought. The presentations are always topical and interesting, and at times brutally honest about the current state of affairs, which I concede can be a bit discouraging. Already this week, we heard about the challenges faced by the international rule of law. We were also reminded of the changing nature of the media and the journalistic profession, about the rise of social media, its use and abuse, and what that means for society. We’ve also heard much about Brexit, which of course has particular resonance here in the UK, but also in democracies around the world. And there’s still more to come tomorrow. I’m particularly looking forward to hearing about court accessibility and communication, a subject that I am personally invested in and have tried to move forward at the Supreme Court of Canada.
Inspired by the presentations made here in Cambridge, we have had thought-provoking exchanges, often coming from very different backgrounds and philosophies. I think part of the attraction of being here is to challenge, and be challenged by, our colleagues. This bi-annual gathering, much like its French-language equivalent, Les Journées Strabourgeoises, expands our intellectual horizons, and I think it makes us better judges and lawyers.
Which brings me to the topic of my presentation today, civility and collegiality. This is an issue I’ve been thinking about for some time, and have spoken to Canadian audiences about on a few occasions since becoming Chief Justice of Canada. My predecessor, the Right Honorable Beverley McLachlin, touched upon this during her presentation earlier this week. It’s a sign of the times that civility and collegiality seem to be in decline, and I consider it my duty to reflect on the impact this is having on the judiciary, and what it means for all of us as judges and lawyers.
Indeed, if this week’s presentations have taught us anything, it is that nothing can be resolved in society without the ability to be civil and collegial. The stakes are high, and our ability to listen carefully, to express ideas respectfully, and to collaborate for the greater good are more important than ever.
In my remarks today, I’ll share my thoughts on the state of civility, in general, in the world today. I’ll explain what civility and collegiality mean, how they affect judicial decision-making, and how they operate in both common and civil law systems. I’ll talk about the relationship between civility and collegiality and dissent, which is an important part of our judicial discourse and legal tradition. I will attempt to debunk a few myths along the way. Finally, I’ll talk about civility and collegiality at the societal level, and how clear communication contributes to collegial social discourse.
Civility and Judging
All of us here are well aware of the importance of civility. Yet excesses and loss of control are now an everyday occurrence: civility is in a sorry state. We could even be forgiven for thinking that incivility has become the new normal, a way of demonstrating political gravitas for some, or intellectual superiority for others.
This is not a new problem, and it certainly isn’t limited to the legal profession. We live in an increasingly uncivil world, one that can even be hostile to what we might consider rational and good-faith discourse. One need only pick up a newspaper or turn on the television – or browse a bit on social media – to see one example after another of how civility has declined in society at large. On TV or on the radio, speakers are constantly cutting each other off, like adversaries in a never-ending debate of the deaf. On social media, we’re now used to seeing people – sometimes even our elected representatives – resort to personal and malicious attacks instead of calmly presenting ideas or arguments. We actually see global leaders lying – lying – to the media, to the public, to each other. Examples of extremely rude comments that are explained away as “straight talk” are too many to count. Vulgarity and incivility are justified on the basis that the language used is clearer and more authentic! Yet it debases our discourse. And it debases us.
As a member of the public, I find this extremely troubling. Our children and grandchildren live in this world, and I worry for their sake about where it is headed. But to bring me to my specific remarks today, coming from my role as Chief Justice of Canada, it worries me to see these trends transposed, sometimes in ways we notice, sometimes in ways we may not see, into the legal sphere.
Now in Canada – not to mention other places – we face many challenges. Access to justice is, of course, top of mind.
I’ve made public comments recently about legal aid. Many governments are looking to the justice system to make cuts, because while no one wants to cut health care and education, many voters are happy to see quote-unquote “criminals” suffer a little. Of course this comes from a very simplistic and misguided understanding of the situation. And it in itself is rooted in a kind of incivility, which, worryingly, signals our civil solidarity may no longer hold. Cuts to legal aid are uncivil in the sense that they undermine our social fabric by dividing us and telling those who have legal problems but don’t have means that they don’t deserve to be heard, that they don’t deserve fairness. It is my firm belief that we must strive to secure good justice for all and not exceptional justice for a few.
But I digress. Incivility is a troubling trend. The discourse we hear in our society can’t help but influence how we work, what we’re used to, what we begin to consider acceptable. As members of the legal profession, people look to us to set an example. In Canada, judges are still seen as being above the political fray. That’s a very good thing. For our democracy to work, we have to be. We work on important issues that go to the very heart of our social values. Passions rise. But we owe it to ourselves, to each other, and to the public to preserve that. As we say in French, il faut savoir demeurer au-dessus de la mêlée [one must know how to remain above the fray].
As I mentioned, I have broached the topic of civility and collegiality more than once because I think it’s time for us to start talking about it. If we want to deliver an exemplary justice, one in which members of the public can have confidence, we need to make a more conscious effort to be civil, and collegial, even when we disagree with each other. Indeed, I’d say especially when we disagree with each other!
Defining Civility and Collegiality
It was Gandhi who said that leading by example is not the best way to convince someone, it is the only way. This is true for anything, including civility. What is more, the idea that courtesy, politeness or cordiality are essential to human relationships is not a novel one, far from it – the saying “Manners maketh man” is at least seven hundred years old – yet the fact remains that we have no commonly accepted definition of “civility”. In reality, the scope of civility is instead defined in reference to failures to be civil.
It is clear, even without a formal definition, that civility represents a high standard of personal conduct. Civility has been described as “the mark and measure of those who have truly mastered the craft”.Footnote 1 This observation shows that, for both judges and lawyers, civility is an end in itself – a standard of professional achievement to which they naturally aspire. The more concrete virtues of civility, from a judicial perspective, include greater efficiency in the decision-making process, a properly judicial frame of mind, and a good example being set for the other actors in the legal system.
Which brings me to the concept of collegiality.
A definition of collegiality may be easier to pin down. Or is it? You might be surprised, or not, that the term is not exactly defined in same way in French and in English. Dans la langue de Molière, l’expression réfère à ce qui est exercé par un groupe, collectivement, sans plus. In English, the term has a more qualitative connotation: in the Canadian Oxford Dictionary, it is defined as characterizing collaboration among colleagues.
Collegiality does not of course mean that everyone is friends with everyone else, or that judges never disagree.Footnote 2 In a system where judicial independence is considered a constitutional principle, the right to disagree is fundamental. But it must be exercised in support of the rule of law, and not as a pretext for personal attacks against those who disagree with us.
From a judicial perspective, “collegiality” evokes a kind of working method for judges, that is, “a process that helps to create the conditions for principled argument, by allowing all points of view to be aired and considered”.Footnote 3 In this sense, collegiality can be seen as something that happens not only between judges of a given court, but also between judges at all levels. It is based on judges’ common interest in “getting the law right”.Footnote 4 At a very basic level, some might say, it’s about setting aside one’s ego and focusing on law and justice.
Collegiality suggests multiple actors involved in coming to a decision. From the perspective of appellate judging, in particular, it means that a case will be decided by several judges working together, sharing ideas and enriching their reflections as they discuss the legal issues.Footnote 5 Collegiality helps balance and moderate decision-making, so no single decision is overly influenced by the perspective of one judge.Footnote 6 It’s a recognition that justice, like a person, is changeable, perfectible.Footnote 7 It’s a recognition that we may not always get it right the first time. And in a country like Canada, where the population tends to have more confidence in its judges than in its elected officials, our judicial office brings with it a duty to disagree in a principled manner.
As we all know, a judge, whether she is sitting alone or as a member of an appellate court, is being asked to reach a decision, the “right” decision, in the context of an adversarial process that pits parties against each other to make their case as skillfully and convincingly as they can. Of course, a system that pits people against each other so firmly and directly will encourage strong emotions and, on occasion, intemperate expressions and behaviours. As we know all too well, problems occur when uncivil attacks become conflated with strong advocacy. Lawyers’ personal attacks on each other, not to mention on judges (though that is rarer), weaken the justice system, its integrity, and ultimately the confidence of those we serve.
Yet it would be hard to overestimate how important civility and collegiality are to the proper functioning of our legal system, and more specifically of our courts. But the question can be hard to raise in relation to judges. Perhaps this is because of an unjustified reticence. Be that as it may, it’s been said that showing civility is about “disagreeing without being disagreeable,” which I think is a particularly apt way to put it.Footnote 8 It’s also been said that courtesy is a way “by which lawyers are able to deal with daily conflict without damaging their own well-being or their relationships with fellow lawyers.”Footnote 9 In my opinion, this is just as true, if not more so, in the case of judges.
In the courts, the duty of civility and collegiality also serves to set the tone. It has been observed that “[d]iscourtesy is contagious, and discourtesy by powerful noticeable people teaches a lesson which many welcome”.Footnote 10 In short, excesses threaten us all. What does this mean in practice? Well, for instance, it means that judges should avoid criticizing colleagues where possible. If a judge wishes to address a point raised in a colleague’s reasons or in those of a lower court judge, it will generally suffice to ascribe the point to the party who argued for it rather than naming the judge. In my experience, there are very few – if any – cases in which personalized criticism of a colleague’s position is justified.
It has also been aptly observed that “[l]awyers are often thin-skinned, and becoming a judge often does not remedy that. Since criticism always generates heat, judges should never voice it unless a much larger benefit will result.”Footnote 11 The point about being thin-skinned is debatable – who has ever heard of a thin-skinned judge? Not me! But joking aside, with so many judges in the audience, I know how much goes into every decision we write, and of course we exert these efforts with a view to getting it right. But we must never lose sight of our leadership role as judges, and our duty to never sacrifice civility and collegiality at the altar of having the last word, so to speak.
Collegiality and Judicial Decision-Making
Collegiality, then, depends on civility. It goes without saying that a collegial relationship means a better working relationship. I don’t just mean it’s more pleasant to work with someone who acts collegially, although of course that is true. It’s more productive. It creates better law.
A collegial relationship is a relationship of trust. Trust means being able to explore ideas together, deeply, without holding back for fear of private or public judgment. But collegiality doesn’t just operate between panels of judges working on the same appeals. None of us should operate in a vacuum. Discussing legal issues and approaches with colleagues can offer fresh perspectives and elicit important insights. These perspectives and insights can make decisions written by individual judges richer, and better. We all have different backgrounds and levels of experience. We can all learn from each other. For the sake of developing the law, it’s important that we do.
Judging, as we all know, is not easy. It can feel isolating. We often can’t tell our friends and families about the challenges we face or the frustrations we feel. And no one who hasn’t sat in judgment, making decisions every day that can change the course of people’s lives forever, can truly understand. So it can also simply be helpful to talk about the challenges of the role of a judge with someone who does understand. And who may be able to offer some advice and support, at least to let us know we’re not alone. That’s an important aspect of collegiality, too. It’s one that’s unfortunately often overlooked or downplayed in the legal and judicial professions. Collegiality also means supporting each other in ways that go beyond the strict bounds of the law.
Trust in our colleagues and in their good faith is crucial to elucidating and developing the law. A lower-court judge may see something novel in a case and take an untested approach, setting forth a dialogue that tests and pushes the limits of the law. But to do so means going out on a limb, which requires trust. Trust that even if a colleague in a higher court doesn’t agree with you, at least they will disagree respectfully. It is one thing to be told your analysis or conclusion was wrong. It’s quite another to be told, publicly, even in formal phrasing, that a first-year law student might well have done better.
But collegiality goes beyond our immediate concerns, our willingness to test limits, and our working relationships. As I said a few moments ago, collegiality creates better law. Hearing other judges’ perspectives can help us think about things in ways we may not have considered, and shape our analysis to make our reasons more responsive to the problem before us, and more widely applicable to similar issues. Former Justice Felix Frankfurter of the U.S. Supreme Court considered decision-making to be orchestral work rather than a series of solo performances,Footnote 12 a characterization I think is not just poetic, but accurate.
Yet the cases before us present themselves by definition with a number of potentially “right” answers, which is precisely why, as explained in a collective study of decision-making in Canadian courts of appeal, “the development of the law is stimulated by exposing readers to alternate modes of reasoning”.Footnote 13 This study, which dates back over twenty years ago, reads as if it were written yesterday. It reminds us that “[t]he great majority of appellate decisions in Canada are unanimous”.Footnote 14 This may explain why, in the view of the authors of this study, “there is little tolerance in the legal profession and especially in the Canadian public for the notion that several potentially ‘right answers’ can co-exist”. The authors of this same study pointed out at the time that “[t]he Supreme Court [of Canada] has been criticized in recent years for producing too many separate concurring decisions. These multifarious judgments do not help to clarify the law in the minds of lawyers and judges in the courts below.”Footnote 15 As I said, sounds like this could have been written yesterday.
One of the authors of this particular study is Professor Peter McCormick, who a decade later, in 2009, wrote an article entitled “Structures of Judgment: How the Modern Supreme Court of Canada Organizes its Reasons”.Footnote 16 In this article, Professor McCormick makes the point that “the way that a panel appeal court presents its decisions is not a random or arbitrary epiphenomenon, but rather it reflects an understanding by the members of the court of their role, of the way they interact with other actors within the legal and judicial system.”Footnote 17 This observation, in my view, invites us to reflect a few moments on how other jurisdictions approach judicial decision-making and the impact of differing approaches on collegiality.
Before doing so, it may be useful to recall that judicial decision-making at the Supreme Court of Canada has evolved quite significantly over the last century. Indeed, in its early years, the Supreme Court of Canada delivered its decision in the English tradition of seriatim opinions. Under the leadership of Chief Justice Anglin, in the 1920s, the approach was modified in favour of a single majority opinion instead, where possible.Footnote 18 Then, in the 1960s, Chief Justice Cartwright introduced the post-hearing conference, another step towards greater collegiality and consensus where possible.Footnote 19 This tradition has been pursued since then, including by Chief Justices Dickson, Lamer and McLachlin. And recently, upon becoming Chief Justice myself, I introduced pre-hearing conferences as well, all in the spirit of enhancing collegiality.
As most of you undoubtedly know, the Honourable Robert Sharpe, the esteemed chef d’orchestre of the Cambridge Lectures, is also a former Executive Legal Officer to Chief Justice Dickson. I am sure he could provide invaluable insight on the workings of the Supreme Court at the time. Fortunately for us, he published his fascinating book last year entitled Good Judgment: Making Judicial Decisions. In a recent review of this book, Gavin MacKenzie was unequivocal that it should be read by judges, advocates, legal scholars and law students.Footnote 20
In it, Justice Sharpe wisely cautions against allowing personal views to influence our decisions as judges, and also against certain myths regarding our role as judges, notably strict U.S.-style legalism.Footnote 21 Personally, I found it particularly interesting to learn that Justice Sharpe rarely dissents and almost never writes separate concurring reasons. In fact, if he disagrees with a colleague unwilling to modify reasons for judgment, he prepares a draft dissent or concurrence for the very purpose of persuading the colleague to address his concern.Footnote 22 This is a good reminder that our role, first and foremost, is to aim for clarity and provide guidance in drafting our reasons. This necessarily requires some give-and-take and a willingness to put aside our egos and listen to the views of others, all in pursuit of the greater objective of reaching a clear and persuasive outcome.
Collegiality in Common versus Civil Law Systems: Debunking A Few Myths
This brings me to briefly compare common and civil law systems at the appellate level of judging. In the traditional understanding, common law systems allow individual opinions, be they dissenting or concurring reasons, with disposition being determined by the views held by the majority as to the outcome. In civil law systems, competing views are expressed during deliberations but they are not publicized as part of the disposition. The final judgment, so to speak, consists of one unique set of reasons, with no express dissent or concurring opinion.
However, this traditional dichotomy no longer entirely reflects reality: civil law jurisdictions increasingly allow judges sitting in their supreme and – even more so – constitutional courts to publish separate opinions. Moreover, while the prohibition against separate opinions usually goes hand in hand with the secrecy of judicial discussions, so much so that they are viewed as one and the same thing, the opposite is not necessarily true. Indeed, there are many legal systems that follow the principle of secrecy of judicial discussions (meaning that these are held in camera and that the deliberations that take place among the judges remain secret) while allowing for the publication of separate opinions.Footnote 23
Indeed, in a recent study prepared under the auspices of the European Parliament, it was found that “the expected division between civil law and common law countries seems to play little, if any role” on the practice of separate opinions.Footnote 24 The study further found that, and I quote: “While opinions about individual opinions vary, there is a general agreement that these best serve their purpose when they are limited in number, circulated in advance, and drafted in a respectful manner. It is only in such cases that they can foster collegiality, enhance the level and deepness of the legal debate among judges, and lead to better reasoned and more coherent judgments. On the other hand, the publication of individual opinions can threaten the authority of the judiciary, and of judgments, endanger the independence and perceived impartiality of judges, and trigger more academic debate instead of providing a solution to the concrete legal question posed by the claimant.” End of quote.
For some, allowing separate opinions carries the risk that trust and confidence in the institution and in its judgments will be compromised. The French Cour de cassation did not mince its words on this subject, noting that [translation] “criticism… [that] is not justified by necessity... has the effect of stripping the court’s decision of any moral authority by undermining its foundation”.Footnote 25 While it is true that some commentators have expressed the opinion that too much compromise and consensus has the effect of watering down legal reasoning to gloss over differences of opinion,Footnote 26 others have replied that too much dissent can be harmful to collegial relations among judges,Footnote 27 especially where dissents are worded in a way that does not really contribute to the debate.
Dissent if Necessary, but not Necessarily Dissent
This brings me to addressing dissenting opinions more directly. Civility and collegiality are of course not synonymous with consensus. In Canada, our justice system is based on a strong guarantee of judicial independence and on the open court principle. It follows that judges have a responsibility to come to a conscientious and reasoned decision in every case they hear.Footnote 28 Obviously, judges are not robots, and they won’t always agree with one another. Where we disagree, we have a responsibility to dissent, and to explain why. To do otherwise would be to abdicate our judicial responsibility.Footnote 29
This being said, my philosophy on dissent is this: dissent if necessary, but not necessarily dissent. Here’s why.
Expressing dissent may be important for many reasons. Dissent is, at its heart, democratic; it goes to “the role of appellate courts in a democracy, because one of the strengths of democratic government is its ability to respect dissenting voices”.Footnote 30 As Judge Learned Hand of the U.S. Second Circuit Court of Appeals once said, “[a]ll discussion, all debate, all dissidence tends to question, and in consequence to upset, existing convictions; that is precisely its purpose and its justification.”Footnote 31 It forces us to look hard at the principles that guide us, and that guide the majority opinion, to scrutinize them for any flaws or failings. This, in turn, allows us to “progress the law to a better state.”Footnote 32 This “better state” may be reached through the active affirmation that the majority view is the one that should be maintained.Footnote 33
Dissent can in some cases signal areas where there are live and unresolved legal issues requiring debate, which can encourage litigants to bring those particular issues forward for resolution.Footnote 34 This can strengthen the development of the law. But allow me to debunk another all-too-common myth: that today’s dissent may become tomorrow’s majority opinion. A thorough review of Canadian case law shows that such situations – where an earlier dissent later becomes law on the same, precise question – are exceptional; they occur very rarely.
Dissenting does of course carry risks. When opinions are sharply divided, some people will say that decisions are being made for reasons that are not strictly legal in nature.Footnote 35 To counter this impression, it’s all the more important for judges to provide detailed reasons to explain the thought process behind their decisions, and to do so in a respectful and impersonal fashion.Footnote 36 An abundance of dissents also risks creating uncertainty in the applicable law.Footnote 37 An abundance of concurring reasons could have the same effect, to the detriment of attempts to identify the principles to be drawn from a judgment.
In fact, there is empirical data collected in the United States that documents the “collegiality costs” of dissenting opinions in the federal courts of appeals and the U.S. Supreme Court. In their paper entitled “Why (and When) Judges Dissent: A Theoretical And Empirical Analysis”, Richard Posner and others find that “dissents increase the length of majority opinions (imposing collegiality costs by making the majority work harder) and are rarely cited either inside or outside the circuit (reducing the value of dissenting to dissenters)”. With respect to the U.S. Supreme Court specifically, they also find that “majority opinions are longer when there is a dissent, and that dissents are rarely cited in either the courts of appeals or the Supreme Court”.Footnote 38
Of course, dissent remains an essential part of our judicial system in Canada. It isn’t going anywhere. The key is to disagree with civility, and respectfully. Dissents should be about grappling with the challenges of a particular case, and expressing disagreement reasonably and objectively.Footnote 39 Writing dissents should not be about trading barbs or settling accounts at the risk of abandoning the role of an arbiter and neglecting the common good for which the judge is supposed to work. It does not suffice to write “with respect” before spewing venom at a colleague. In short, a judge must master the art of respectful dissent.
It may be true that our counterparts in the American judiciary have a different approach to dissent, one that is sharper, more aggressive, even condescending. In this regard, a recent article on Justice Antonin Scalia of the U.S. Supreme Court – thankfully published after he died – states that his increasingly “vitriolic” dissentsFootnote 40 “marked a turning point in the Court’s tradition of collegiality and civility”.Footnote 41 In case you are curious, here are just a few examples of what may be referred to as “Scalia-isms”. So for instance, he characterized his colleagues’ reasons as “nothing short of ludicrous”, “beyond absurd”, “entirely irrational” and so on. Likewise, he was known to use expressions such as “argle-bargle” and “jiggery-pokery”.
Some have gone so far as to claim that Scalia’s disrespectful style “helped pave the way for the remarkable decline in the level of public discourse generally”. So while society may influence the courts, so too do the courts influence society. The article’s author, J. Lyn Entrikin, adds the following, and I quote: “Dissent need not rely on the invective, insult, and bullying that were all too common in the Scalia years. These tactics deaden our sense of proportion and our sense of decency. The decline in civility of public discourse did not begin with the last election cycle or the partisan deadlock in today’s Congress. But perhaps the first few disrespectful Scalia dissents helped pave the way – not just for his increasingly vitriolic dissents later in life, but also for the remarkable decline in the level of public discourse generally.”Footnote 42 End of quote.
In the end, what’s important is how it’s done: judges should stick to arguments and avoid attacks or comments about individuals. In a perfect world, this is an exercise that calls on us to smooth out our differences of opinion in order to reach a result that’s clear and fair, or at the very least to articulate decisions that help move the debate forward toward a case law that, if not unchangeable, must remain coherent.
In my view, Canadian appellate courts have adopted a model of judicial decision-writing that serves the interests of clarity and coherence of the law. At the Supreme Court of Canada, we’ve made collegial decision-making – that is, deciding as a group – a judicial habit. The aim, at least from the outset, is to work together to reach unanimous or at least majority reasons. Working together often means working out differences to come to a result that’s clear and cogent, but that a group of judges can agree upon. We still value dissenting and concurring opinions where necessary, but we also value efforts to accommodate would-be dissenters’ concerns.
And all of us in this room can unanimously agree – no pun intended! – that we are all striving towards the common goal of legal clarity. So personally, I think we have the right model. And allow me to emphasize how very proud I am of our justice system and the people in it. I think we have an incredibly talented, hardworking, civil, and collegial judiciary in Canada. But I want to do what I can to ensure that it stays that way. And I think all of us on the bench need to be reminded of the dangers. We must always practice what we preach.
Canadians continue to have confidence in their institutions, particularly their legal institutions, to act fairly and justly. Our judiciary is forceful because it stands for truth and justice, for democracy and the rule of law. We don’t often frame it in such high-sounding rhetoric, but this is ultimately the source of our strength. We are mighty because Canadians respect and trust the work that we do. But that doesn’t mean we are immune to all the changes that are happening elsewhere. We can’t be complacent in protecting our values. And by “we” I don’t just mean the judges or the lawyers or the people in this room; I mean all of us. All Canadians. Because we are in this together.
But we aren’t the only ones with a stake in our success. In these troubled times, other countries and other courts are looking to us as a reference – not because of our military or economic power, but because of our legal and – dare I say – moral strength. Our professional and independent judiciary, our Charter of Rights and Freedoms, our commitment to making justice accessible to those who need it: these are the things that others see when they look at Canada.
Collegiality and Communication
I said a moment ago that we are all striving toward the goal of legal clarity. And I wonder if clarity is, in some sense, a crucial – but overlooked – bedrock underlying civility and collegiality. This is especially true when we in the legal profession are speaking to the lay public, but it can be true even on the bench. We all come from different cultural and educational backgrounds. Some of us are trained in different legal traditions. All of this shapes us. In some cases, we may even be using the same words, but we may not be talking about the same things. We can’t have a meeting of the minds if we don’t know what others are truly saying. In the end, we might not actually disagree at all.
For the general public – and by this I’m referring specifically to people who are not legally trained – we have to be especially careful. Where we say “dissent,” they see “disagreement,” or even “division.” They may even see “a different but equally valid opinion that may find favour next time”.
Today, most people in Canada can access to the sum of all human information in a few swipes or clicks. But, as the English poet Alexander Pope already knew in the early 18th century, “[a] little learning is a dangerous thing.”Footnote 43 “Shallow draughts,” he said “intoxicate the brain,” but, he noted helpfully, “drinking largely [note: in the sense of drinking a lot] sobers us again.”Footnote 44 What Pope was saying is that superficial knowledge is worse than no knowledge at all. And I fear we live in a world of superficial knowledge, where objectively minor variances are presented as completely incompatible, leveraged for different purposes and creating divisions, which drives down civility and collegiality in all areas of life.
This is why I think that civility and collegiality writ large – on a grand social level – require us to communicate clearly and directly with citizens. Many people are losing faith in institutions today. It’s happening around the world, but we’re seeing it in Canada too. People are suspicious. They expect the worst when they don’t understand. Conspiracy theories are rampant. Cynical leaders are preying on that. I sincerely believe that clear communication can help inoculate us against some of the lower kinds of discourse we see. It’s harder to twist clear, direct language that people can easily grasp than it is language that is confusing or vague.
We in this room are the fortunate ones, and that’s worth remembering. As a whole, Canadians, despite being among the most educated people in the world, have literacy levels that are about average. This is a big part of the reason that, at the Supreme Court of Canada, we’ve looked for new ways to communicate with people, using plain English (and French) that everyone can understand. I’m referring, of course, to our Cases in Brief, which I hope you’re familiar with. We’ve also published a Year in Review, full of photos and graphics to communicate our work in a less text-dependent way. Both of these have been successful – more successful than we ever expected, in fact. It’s because there is an appetite for information like this.
We have not undertaken any kind of rigorous analysis of this, but anecdotal evidence gleaned from social media seems to show that the general public – at least those interested enough to read and engage on social media – have a better understanding of Supreme Court decisions, and will direct those commenters with a weaker understanding to read the Case in Brief. I would argue that we’ve given them the tools and confidence not just to understand our decisions, but to discuss them with others – and even disagree – more civilly. If these observations carry any weight, I am happy that the Supreme Court of Canada is contributing, in some small way, to civil discourse on the internet.
We’re not alone in this, however. Other courts are undertaking similar initiatives and modernizing the ways they communicate with the public. The French Cour de cassation recently reformed its judgment writing practices to ensure its decisions are better understood by the public. They see public understanding as essential to la sécurité juridique, in the sense that a decision that can be understood contributes greatly to certainty in the law.Footnote 45 Lady Hale, right here in the United Kingdom, has firmly stated that “there should never be any doubt about what has been decided and why.”Footnote 46
Gone are the days when courts can be ivory towers, mysterious and inaccessible to the average citizen. This is precisely the reason why my colleagues and I at the Supreme Court of Canada have decided to hear cases outside of Ottawa in Winnipeg next September. This is a historical first for the Court, and it is driven by the objective of ensuring that Canadians understand who we are, what we do and how we do it. I don’t think I’m exaggerating when I say that our social cohesion might depend on citizens understanding what the law is and why it is that way, and having confidence that it was reached fairly, impartially, and dispassionately.
I’m not here to give you lessons on how you should approach your work as a judge or as a lawyer. I’m here to share my philosophy, my vision. We must always be civil, and we must always be collegial – for our own personal relationships, but also strengthens and improves the development of our law. This experience has been borne out not just in Canada, but in other jurisdictions.
More broadly, it also helps maintain people’s faith in our democracy and rule of law. Canadians look to the judiciary to do what is right, even when they don’t trust other leaders in society. For this reason, we can’t afford to compromise even the appearance of our impartiality and independence. We can’t be seen to be swayed by emotion. We are not heartless, but reason has to rule the day. Because even if people reading our decisions don’t agree with an outcome, we have to ensure they respect them. If we let emotion get the best of us, our decisions become suspect, and so do we. Let’s not forget that every decision we make is an exercise of power – the power to change the course of the lives of parties who appear before us, and parties to come. It’s a great privilege to be able to wield it. We simply have to hold ourselves to a higher standard.
In the final analysis, you will have understood that civility and collegiality are not just about manners, education and decorum. Civility and collegiality contribute to the efficient functioning of our justice system, to a coherent application and development of the law, and to public confidence in the justice system. These are objectives that all of us, whatever parts we may play in the judicial system, have undertaken to support. I am certain that every one of you here will help to preserve this legacy.
On that note, I look forward to a civil, collegial, and (I hope) spirited discussion! Thank you for your attention.
- Footnote 1
M. Taylor, Q.C., “Ethical and Professional Responsibility Issues” in British Columbia Civil Trial Handbook, 3rd ed. (Continuing Legal Education Society of British Columbia, 2010), at p. 387.
- Footnote 2
- Footnote 3
H. Edwards, “The Effects of Collegiality on Judicial Decision Making” (2003), 151 U. Pa. L. Rev. 1639, at pp. 1644-45.
- Footnote 4
- Footnote 5
Braën, A. (2011). Collégialité et juge unique. Revue générale de droit, 41 (1), 295-308, available at https://doi.org/10.7202/1026951ar.
- Footnote 6
- Footnote 7
- Footnote 8
Taylor, at p. 385.
- Footnote 9
Ibid., at p. 392.
- Footnote 10
Justice J.E. Côté, “The Appellate Craft,” Canadian Judicial Council (2009) at p. 53, available at https://www.cjc-ccm.gc.ca/cmslib/general/ACC-Appellate-Craft-book-final-E.pdf.
- Footnote 11
Côté, at p. 62.
- Footnote 12
Edward McWhinney, Supreme Courts and Judicial Law-Making: Constitutional Tribunals and Constitutional Review, Dordrecht: Martinus Nijhoff Publishers, 1986, at p. 23.
- Footnote 13
I. Greene et al., Final Appeal: Decision-Making in Canadian Courts of Appeal, Lorimer, Toronto, 1998 at p. 16.
- Footnote 14
Ibid., at p. 17.
- Footnote 15
Ibid., at p. 121.
- Footnote 16
(2009), 32 Dalhousie. L.J. 35.
- Footnote 17
Ibid. at p. 41.
- Footnote 18
Peter W. Hogg and Ravi Amarnath, “Why Judges Should Dissent”, 67 U. Toronto L.J. 126 (Spring 2017), at pp. 126-27.
- Footnote 19
- Footnote 20
“The Art of Judging”, The Advocates’ Journal (Summer 2019) at p. 33.
- Footnote 21
- Footnote 22
Ibid. at p. 34.
- Footnote 23
Rosa Raffaeli (Policy Department C: Citizens' Rights and Constitutional Affairs, European Parliament’s Committee on Legal Affairs), Dissenting Opinions in the Supreme Courts of the Member States, 2012 at p. 8.
- Footnote 24
Ibid. at p. 39.
- Footnote 25
Recueil général des lois et des arrêts en matière civile, criminelle, administrative et de droit public, 2e série (Paris : 1851), at p. 243.
- Footnote 26
Hogg and Amarnath, at p. 135.
- Footnote 27
Ibid., at p. 136.
- Footnote 28
Ibid., at pp. 126-27.
- Footnote 29
Ibid., at p. 130.
- Footnote 30
I. Greene et al., Final Appeal: Decision-Making in Canadian Courts of Appeal, Lorimer, Toronto, 1998 at p. 189.
- Footnote 31
Quoted in Neal Geach and Christopher Monaghan, eds., Dissenting Judgments in the Law, London (UK): Wildy, Simmonds and Hill, 2012, at xvi.
- Footnote 32
- Footnote 33
- Footnote 34
Alan Paterson, Final Judgment: The Last Law Lords and the Supreme Court, Oxford: Hart Publishing, 2013, at 67.
- Footnote 35
Hogg and Amarnath, at p.134.
- Footnote 36
Ibid., at p. 135.
- Footnote 37
Ibid., at p. 136.
- Footnote 38
Epstein, Landes and Posner, “Why (And When) Judges Dissent”, 3 Journal of Legal Analysis 101 (Spring 2011), at p. 101 (abstract).
- Footnote 39
Steel, at p. 147.
- Footnote 40
J. Lyn Entrikin, “Disrespectful Dissent: Justice Scalia’s Regrettable Legacy of Incivility”, The Journal of Appellate Practice and Process, vol. 18, No. 2 (Fall 2017) 201, at p. 203.
- Footnote 41
Ibid., at p. 202.
- Footnote 42
Ibid., at p. 294.
- Footnote 43
Alexander Pope, An Essay on Criticism, 1709.
- Footnote 44
- Footnote 45
Cour de Cassation, Le mode de rédaction des arrêts de la Cour de cassation change (dossier de presse, le 5 avril 2019).
- Footnote 46
Lady Brenda Hale, First Anniversary Seminar: Judgment Writing in the Supreme Court (30 September 2010) at p. 3.
Remarks by the Right Honourable Richard Wagner, P.C.
Chief Justice of Canada
The Cambridge Lectures 2019
Queen's College, University of Cambridge, England
July 4, 2019
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