I think there is a risk. The judges are aware of the risk. I think the law clerks are aware of the risk. They are instructed when they arrive at the court that they are to assist the judges in the judge’s work and that is the limit of their role. They are not to push their agenda nor are they to push their views of what the proper outcome of a case should be. So, there is a danger but we do what we can to counteract it.
Have there nights where you took a case home and lay awake, going over and over it because the mantle lies so heavy upon you?
There were many cases where that happens. I find that when I’m caught up in writing a judgment it can affect sleep patterns. It can intrude in your thoughts at any time, day or night. It doesn’t depend on the level of controversy of the case.
I’ll give you an example of the reverse – the Robert Latimer case. It was a hugely controversial case, but to me, the legal outcome was straightforward. You can’t have people making their own judgments as to whether their child should live or die. In saying that, I make no moral judgment at all about what Latimer did. I accept his word that he did it because he thought it was best for his daughter. But the legal decision wasn’t his to make. But the law is clear. When you talk about judges applying the law and not making it up, if the Criminal Code is clear about the penalty that follows for the crime of homicide, then that is the penalty that follows. You can’t apply the law differently from case to case to case depending on a judge’s personal view of whether a constitutional exemption is warranted.
So, there is no necessary correspondence between how much you agonize over a decision and what the moral implications or the controversy is outside the courtroom. My only function in that case is the right legal result. In that case, the legal result was clear. My personal views of whether it was a good outcome or a bad outcome were irrelevant.
Can you think of any cases where you were kept awake?
We can go back to the insurance case – Whiten and Pilot. There is a huge controversy as to whether you should ever have punitive damages in a contract case. The prevailing view among the academics is that you couldn’t. Now, that’s a fairly dry controversy in terms of public perception and there weren’t many editorialists clamouring on one side or the other. But in a system of contract law set up just to deal with compensation, how do you introduce the idea of punishment and still have it intellectually coherent? That was a very difficult legal issue.
To what extent is the media responsible for miscommunicating central issues about judges and the courts?
The media has some responsibility, certainly. On the positive side, if it weren’t for the media, nobody would know about Charter cases and Charter controversies, and the Charter wouldn’t have nearly the public support it has. So the very fact that the media is out there explaining to people what it is all about has had the effect – whether the media intended it or not – that there is very broad public support for the Charter even though particular decisions may be controversial. On the whole, people say its a good idea that we have it.
On the negative side, reporters are looking for items that are newsworthy. If you are on a dull news day and a decision comes down that is on the face of it, pretty dull, I’m sure you pour through it. Newspapers in general, and the electronic media in particular, do not see it as a priority to explain the legal system to its audience. But this means that if a controversial case comes out, the public is ill-prepared in many cases to put it in context and to understand what is going on with the decision. I use the example of the funhouse mirror. When I read a decision that I’ve written, I recognize it in the funhouse mirror but it doesn’t quite look like my face and it doesn’t look like my distended arms. On the other hand, I’ve had months to work on the ruling and you’ve had hours to distill an explanation of what it’s all about. I think editorial writers bear more of the responsibility because they have longer to think. As often as not, the problem lies with the editorial writers staking out a view that has very little to do with what I think a judgment says.