I – Certain Procedures
In my now much annotated copy of Eichmann in Jerusalem, A Report on the Banality of Evil, there is one margin note I’m particularly proud of. Arendt had argued “certain procedures… important in [their] own right can never be permitted to overrule justice, the law’s chief concern.” I have written next to it:
“What is justice and what separates it from vengeance? Is it not the very procedures Arendt disparages that make this distinction?”
II – Bringing The Administration of Justice Into Disrepute
On July 22, 2006, Ms. Côté shot her husband, André Hogue in the head with a .22 rifle. She called 911, and he was taken to the hospital. Her husband later died of his wounds. As her husband was receiving treatment in the hospital, police arrived at Ms. Côté’s house. They told her they were responding to her 911 call (a lie, they were there to investigate her husband’s shooting). They failed to inform Ms. Côté that she was a suspect in a crime and talked her into allowing them to search the premise. When they found a .22, they arrested Ms. Côté.
Throughout the case the police acted deplorably. The trial judge determined that “police investigators over several hours had violated virtually every Charter right accorded to a suspect in a criminal investigation”. Furthermore, these violations had been calculated and deliberate. And to top it all off, the police had lied to judge in order to obtain a search warrant.
Faced with procedural violations on this level, the trial judge saw no choice but to throw out all of the evidence the police had collected. This left the prosecution with no case and Ms. Côté was acquitted. The judge ruled as they did because in their opinion, to do anything less would bring the carriage of justice into disrepute.
The prosecution appealed the acquittal (this is a quirk of the Canadian legal code) and the appeals court judge sided with the prosecution. The appeals court believed that because the evidence could have been acquired legally there was no real harm. Furthermore, the appeals court believed that any minor harm to Ms. Côté would be outweighed by the serious interest that society has in prosecuting murderers. To the appeals court, not allowing the evidence to be used in trial would bring the carriage of justice into disrepute. The acquittal was set aside and a new trial was ordered.
Ms. Côté appealed this ruling one step higher and the Supreme Court of Canada took up the case. In an 8-1 decision, they overruled the appeals judge and reinstated the acquittal.
After five years of legal slogging, Ms. Côté was free.
III – The Reasoning of the Supreme Court
The Supreme Court of Canada likes to use their authority lightly. It is their job to rule on matters of public importance or important points of law, but almost all rulings they give (reference questions from the government being the notable exception) come to them as an appeal from a lower court. If the lower court has not made any errors, the judges of the Supreme Court frequently let their judgment stand. The Supreme Court isn’t a political body, to interpret legal matters through the lens of their own ideology. Therefore “[w]here a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review.”
In this case, they found that the trial judge had considered proper factors and that none of the findings of the trial judge were unreasonable. The Supreme Court decided, therefore, that the appeals court had erred in reweighing the factors of the case.
A further error made by the appeals court was considering the “discoverability” of the evidence as the most important matter. Discoverability of evidence does play a role in determining if evidence should be admitted in the case of procedural errors. In some cases, it makes more sense to discipline incompetent police officers than to throw out evidence that could have been easily obtained by a competent or conscientious officer of the law.
This case was marked by more than simple incompetence. There was a serious, deliberate, and repeated violation of Ms. Côté’s charter rights. On this matter, the Supreme Court agreed with the trial judge. Such blatant disregard of the law by those charged with upholding the law has no place in a society based on the rule of law. To admit the evidence anyway would not lead to justice. It would cause Canadians to doubt in the existence of justice. Justice cannot be defined simply as punishment for crimes. To have justice, there must be procedures that allow for a fair trial, procedures that respect the rights of accused, and procedures that acknowledge that the accused is innocent until the moment of conviction.
IV – The Kidnapping of Eichmann
On May 11, 1960, Adolf Eichmann was kidnapped by Mossad agents in Argentina. He was interrogated in Argentina for nine days, then shipped to Israel, where he arrived on May 22, 1960. On April 11, 1961, the trial of Eichmann began. The trial is documented by Hannah Arendt in Eichmann in Jerusalem, A Report on the Banality of Evil. Arendt documents the problems with the trial, the understaffed defense, the language barrier and poor German translation, and the multitudinous irrelevant exhibits.
Despite her distaste for the show trial, Arendt agreed with the verdict; on June 1, 1962 Eichmann was hung from the neck until dead.
Arendt comes to two interesting conclusions about the nature of justice. I find them informative of her worldview, but I disagree with both of them. The first has already been mentioned: “certain procedures… important in [their] own right can never be permitted to overrule justice, the law’s chief concern.”
Her second conclusion regards the necessity of Eichmann’s execution: “we find that no one, that is, no member of the human race, can be expected to want you to share the earth with them. This is the reason, and the only reason, you must hang.” This will become important later.
To support the verdict and trial of Eichmann, you must first, by necessity, hold that the carriage of justice is more important than (and separable from) “certain procedures”. In a broad context, these certain procedures are the Universal Declaration of Human Rights, various international treaties, and the constitutions and legal institutions of each country.
In the sense of Eichmann’s trial these certain procedures were narrower. It is generally frowned upon to secure a defendant by kidnapping. The proper way to secure a defendant residing in another country is to first issue an arrest warrant and then begin extradition proceedings.
Israel never tried to extradite Adolf Eichmann. This isn’t to say that attempting to convince Argentina to extradite him would have been anything less than pointless. It does, however, establish that Israel had very little interest in following “certain procedures”. Israel sent the Mossad after Eichmann and then smuggled him into Israel aboard a government plane.
The United Nations found this incredibly troubling. The UN Security Council passed resolution 138(1960) condemning the action (while also condemning Eichmann’s crimes). In their resolution, they stated “that the repetition of such acts such as that giving rise to this situation would involve a breach of the principles upon which international order is founded, creating an atmosphere of insecurity and distrust incompatible with the preservation of peace”.
Arendt found the kidnapping necessary. She refused to allow “certain procedures” to get in the way of justice. Eichmann’s judges found the kidnapping irrelevant. They found that Eichmann hadn’t been wronged, only Argentina. Once Israel made reparations to Argentina, everyone considered the matter closed.
It is hard to see how the denial of basic legal rights cannot harm the defendant. The denial was blatant and repeated. To some (like those who agreed with the verdict in R v Côté), such a violation of rights brings the carriage of justice into disrepute.
Many people condemned the Israeli courts as non-objective. They argued that no Jew could fairly sit in judgment on one of the architects of the Holocaust. Arendt ably dismisses this argument. Judges are always called upon to judge criminals: it is their job. If a judge isn’t fit to judge genocide against their people, they would by necessity also be unfit to judge even a murder. Since we do not hold this as the case, we can be confident in the objectivity of the judges.
My criticism of the Israeli court is different. I hold that any court that lacks respect for “certain procedures” isn’t fit to stand in judgment on anyone.
V – Cross Border Kidnappings
In the United States of America, bail is often provided by bail bondsmen. These services will post the full (often excessive) bail for release from jail in exchange for a flat percentage fee. If the defendant doesn’t show up in court, the bail bondsman loses their investment.
When someone skips out of their court date, the bondsman will often hire a bounty hunter to collect them, so that the bond isn’t lost.
Almost all other countries use a different system, and tend to take a dim view of bounty hunting. Most countries, however, aren’t right next to the United States of America and therefore tend not to have to deal with American bounty hunters blundering around trying to kidnap people. Because make no mistake; from the perspective of every other country, what bounty hunters do is kidnapping.
Canada and Mexico, however, occasionally have their citizens (or visiting Americans) kidnapped and brought to America. This first became a problem in 1981, when two American bounty hunters kidnapped the Canadian citizen Sidney Jaffe, who was wanted for fraud in Florida. When Canada found out what happened, it immediately summoned the American ambassador. One can only assume they received an earful.
America had no problem trying Sidney Jaffe (on appeal, he was acquitted of the fraud charge, but, amusingly, ended up serving time from failure to appear). But America also had no problem extraditing both bounty hunters to Canada, where they were convicted of kidnapping.
It’s somewhat odd that America extradited the bounty hunters; normally extradition only occurs when the alleged crime is illegal in both jurisdictions. A treaty was concluded in 1988, which made it clear that American bounty hunters would face extradition back to Canada if they kidnapped anyone here.
This treaty was put to use in 2004, when the bounty hunters Reginald Bailey and Robert Roberts kidnapped Kenneth Weckwerth. Kenneth was convicted on the charges he’d fled from, and Canada laid charges against both bond agents, both of whom eventually served time in jail.
Israel isn’t alone in being fully prepared to prosecute those who are only standing trial due to kidnapping. The Israeli court and prosecutors were able to list a whole host of precedents for the practice. There’s even a legal term in Latin for it: “male captus bene detentus”, or “wrongly captured, properly detained.”
It seems that Canada may be almost unique in holding that kidnapping is not a valid way of forcing a defendant to stand trial. I have yet to find an example of a Canadian case where this occured. Part of this may be the lack of incentives to do so. But I think that if this were ever to occur, it would be found to bring the carriage of justice into disrepute.
Until the invention of some legal alchemy that can change injustice into justice, we will find that you cannot arrive at justice if you begin by ignoring the rights of the accused.
VI – What, then, is Justice?
Justice is a balancing act. We have to balance the rights of the accused and the rights of the victims. We have to balance the damage to the common good that occurs when innocents are convicted and the damage to the common good that occurs when the guilty go free. We have to balance the right to a speedy trial with a desire to be slow and cautious.
It is generally agreed that the common good is served by punishing the guilty – and only the guilty – for crimes. In countries where this is no longer the case, we often say the “the rule of law has broken down.” Without the rule of law, the innocent are punished along with the guilty, often for trivial things: supporting the wrong political party, believing in the wrong god(s), or loving the wrong person.
Broadly defined, the rule of law is the protections we afford to those charged with crimes, and the limits we use to define what actions are criminal. In Canada, for example, it is broadly held that there is no place for the state in the bedrooms of the nation (i.e. that we should not have laws that limit what consenting adults can do). And most constitutional democracies have an elaborate set of protections in place that ensure fair and unbiased trials.
Without these protections, abuses both large and small can occur. Potential jury members can be prejudiced with salacious details about the defendant. The defendant can be starved, tortured, beaten, or coerced in confessing. The defendant can be left confused by an arcane, Kafkaesque legal system and be unable to defend themselves from charges they do not understand.
We see these abuses every day, all over the world. They cannot happen in Canada, because they would throw the carriage of justice into disrepute, and draw judicial sanctions. Or, to put it more plainly, the only thing that keeps them from happening in some countries is “certain procedures.” When these procedures are violated and ignored, the common good suffers.
A punishment is just then when it redresses a crime without harming the common good. Revenge always harms the common good, as does attempts at justice without following procedures. It is difficult to say if there is any justice great enough that procedures may be ignored in its carriage. My intuition says no. Each harmful act is finite, but bad precedents and eroded freedoms can last forever.
Furthermore, we should make no action that we cannot later reverse. Justice cannot be served by execution because this act is final. If there is a mistake – and with humans there always is, sooner or later – we will never have a chance to reverse the sentence and make reparations.
VII – No Member of the Human Race
Yet Arendt posited that Eichmann should be hung because “no one, that is, no member of the human race, can be expected to want you to share the earth with [them]”. But this statement is demonstrably false. Eichmann enjoyed the status of a minor celebrity in the Argentinian Nazi community. He inflated his standing with such quotable phrases as:
“I will leap into my grave laughing because the feeling that I have five million human beings on my conscience is for me a source of extraordinary satisfaction.”
It should be noted that Arendt views this as evidence of Eichmann’s ego and penchant for self-promotion, not as evidence of serious anti-Semitism.
So there were people willing to share the Earth with Eichmann, but they were mainly other Nazis, or Nazi fellow travelers. Suppose that we then omit these people. After all, no one, that is, no member of the human race, can be expected to want to share the Earth with Nazis and their allies.
With our now (slightly diminished in number) human population, we’ve achieved Arendt’s goal of an Earth where everyone is quite happy if they don’t have to share it with Eichmann. And the best part is, we only had to get rid of Nazis to do it!
It’s rather difficult to argue that Nazis are humans, deserving of the same legal protections as everyone else. And yet I would argue that at a bare minimum, even Nazis deserve a fair trial, and protection from jurisdictions with the death penalty. These are the bare minimums Canada might look for when extraditing its citizens, so they’ll serve as a reasonable starting point for me.
People tend not to like the idea of giving Nazis these rights, because of the palpable evil of the actions Nazis committed. Whether these evils were banal or radical is a moot question for most people. It was undeniably evil and undeniably it cries out for justice. To have failed to try Nazis for their crimes would be to bring the reputation of international justice into disrepute – but to try them wrongly weakens justice for everyone.
Hannah Arendt mentions, in passing that once a crime has been invented, it’s recurrence becomes more likely than its invention. I believe legal precedents to be similar. Once they exist, they practically beg lawyers and prosecutors to use them.
If we exclude one group from humanity, even a group formed solely of “monsters”, we weaken the protections on all of humanity. We now have a legal precedent and the prosecutors of the world can rejoice in it. The next group that is prosecuted may be less evil than the Nazis, and the next group less evil still. There is a wide range of evil between “attempted to wipe out 18 million people” and “still too obviously evil for me to want to defend them”.
With each use of a precedent, the precedent can become both more popular, and more normalized.
When China decides to brand Uighur Muslims as universally terrorist and demand we return them all to China (where they will disappear), what is the response in a world where the rights of groups we dislike are cheapened? Uighurs are foreign and easy to associate with terrorism. Who will have the courage to speak out if China rounds them up for destruction? Who will even care if it occurs?
Cheapening life for anyone cheapens it for us all. How can we accept something as justice when it fails to serve the common good? Is revenge more important than the common good? I think, at that point, when we admit that we are willing to take revenge regardless of the harm to the common good, we lose the right to label our vengeance justice.
VIII – What Precedents are Set?
There are two types of precedents. There are precedents in the strict, legal sense. These are previous judgments, which, in common law become part of the law. Common law is based on the principles of fairness. Each defendant should be treated the same. If a legal principle was applied one way in a case, it should be applied the same way in a similar case.
In Canadian Common Law (which includes all provinces except Quebec), courts of the same level may use precedents set by each other, but they aren’t binding. Precedents set by courts of a higher level are binding on all lower courts and precedents set by the Supreme Court are binding on all courts, even those in Quebec (to the extent that this is possible – for example, Supreme Court precedents on defendants rights may be binding, while precedents on sentence length may not be).
But precedents are also set in the political sphere. These are not binding legal decisions; instead, they are a sense of what is possible. Precedent is what changes actions from unprecedented to normal. Rome had a constitution that was based mostly on precedent and largely unwritten. The Roman Republic didn’t turn into the dictatorship of the Principate overnight. Constitutional authority was gradually eroded, as actions once thought unprecedented became normal. Marius and Sulla set the stage for the Triumvirate, which set the stage for Augustus. With each set of men, the public became more jaded, and more willing to accept excesses. Caesar or Augustus could not have seized power in 150 BCE, had they been living. But by 14 BCE, a dictatorship was inevitable.
The Israeli kidnapping of Eichmann did much to help cement male captus bene detentus as a precedent.
In Canada, the unprecedented is becoming precedent. The 2005 Liberal Government fell because of a $14 million scandal. The Conservative Government has weathered the $400 million ETS scandal, the multi-billion dollar F-35 scandal, several electoral violation scandals, a scandal over the torturing of detainees, and several scandals over the prorogation of parliament to avoid discussion of scandals. On Wikipedia’s List of Canadian Government Scandals, 9 of the 18 Federal scandals have occurred under Steven Harper (that is to say, in the last nine years). The previous nine scandals cover the period from Confederation (1867) to 2005.
$14 million was an unprecedented waste of public funds, a waste that toppled a government. But $25 billion dollar waste of public funds due to poor procurement planning has passed without any concerted outcry. By which I mean the outcry has not gone beyond those who have a tribal reason for outcry. The Conservative Party of Canada supporters were going to vote against the Liberals in 2006, no matter what happened. It took a scandal to bring the rest of the public around. But in the wake of nine scandals, there has been no public outcry. Those who oppose the Harper Government have been left feeling indignant.
There has not been a wider outcry, because the actions of the Harper Government aren’t unprecedented. This is partially by design. The Conservative Party has spent much time and effort on convincing the population that we cannot expect any better from our leaders. This cynical ploy certainly seems to be paying off in the short run, but I cannot help but worry about the damage it will do to our country in the long run.
People should expect a lot of their government. Any graft, corruption or cover-up should be enough to see a politician shit-canned. Lest anyone think I only pick on the Conservatives, I should mention that the Ontario Liberals are little better. They lack the cynical manipulation, but they’ve shown no ability to take ownership of their actions or learn from their mistakes.
Politicians need to learn to lose, to let go, to stop fighting for their careers when they have failed to live up to the standards we set for them. Their careers should be beyond salvaging. But if they let go quickly enough, they can minimize the damage to the common good.
Now there’s an unprecedented action. Because these days, it seems careers are beyond salvaging less and less. The unprecedented is moving in the wrong direction. How do we stop this drift?
IX – The Law-Abiding State
Canada is not ancient Rome. While Harper may have many of the trappings of a Caesar (or worse, a Rex), he will always have to stand for election. If Canadians become tired of him, he will lose an election, and vanish. Canada has a written constitution, and more importantly, we have guardians of that constitution.
The guardians are the courts. Courts do more than just apply civil and criminal law codes. They judge those codes themselves. The courts have the authority to find laws unconstitutional, and propose remedies when they do. In some cases, this results in the law being completely struck down. Canada hasn’t had any laws banning or restricting abortion for 27 years, since the Supreme Court struck down the last law. Our laws against euthanasia and prostitution both fell within the last two years.
In recent years, the court has moved to a model where they give the government time to legislate, before statutes are invalidated. Normally, the repeal of a law is suspended for one year. At the end of this year, the government should have new legislation in place. If the topic proves too contentious – as abortion, and now euthanasia have been – then the government may fail to pass a new law, and the result is no law.
Last year, Canada’s prostitution laws were struck down. The government was given a year to come up with a way to regulate the industry, without criminalizing it. But the Harper Government has set a new troubling precedent. Before the year given to them by the Supreme Court was up, they had drafted a new, more draconian prostitution bill. It’s hard to see how this bill will be constitutional, when the previous law failed a constitutional challenge.
This is an outrage! Canada’s government has decided to ignore the constitution to build support with its base.
This government has had other unfortunate run-ins with the Supreme Court. Parts of their omnibus crime bill were struck down. One of their nominees for the Supreme Court (distinguished only as the sole judge in Canada to refuse to condemn Gitmo) was disallowed as ineligible.
At some point, disregard for the constitution becomes clear. The Harper Government clearly misses the good old days of British style parliamentary supremacy.
The idea of parliamentary supremacy isn’t a bad one. Parliament is the most accountable branch of government. We directly elect them every four or five years. If we dislike their actions, we can simply elect someone different.
But democracy is only a short step away from the tyranny of the majority. The rights of minorities must be protected in a democracy. In Canada, this protection takes the form of the Constitution, a set of norms and rights we have decided to set in stone, so that no divisive populism can come along and strip groups of their rights.
When a government repeatedly fails to represent the constitution, should they still be given a free hand to legislate? Court challenges are time consuming and expensive. They put the onus on citizens to prove that the government has violated the constitution, not on the government to prove that it has respected it.
If a government has failed repeatedly to respect the constitution, what would be the harm in forcing all their legislation to undergo judicial scrutiny before it is implemented? A “three-strikes you’re out” system would be simple enough, but based on the slow pace of litigation, it only really affects governments that spend more than one term in office. And how does one define a multi-term government? By the leading party? By the cabinet? By the Prime Minister? There are ways around all of these.
A better solution then, might be to force all legislation to undergo judicial scrutiny.
X – Can We Trust The Judiciary?
The Canadian Supreme Court is unelected. The Prime Minister appoints judges to the Supreme Court. They then sit on the bench until they retire at the mandatory retirement age of 75 (or earlier if they so choose).
The Canadian Supreme Court is surprisingly non-partisan. There may be slight differences in nominees from different governments, but the court is by no means divided on ideological lines. The court reaches unanimous decisions more than 2/3 of the time. Contrast this with the Supreme Court of the United States of America, which is famous for its party line 5-4 votes on contentious issues.
When the Supreme Court struck down Canada’s prostitution laws (clearly an area ripe for ideological arguments) the decision was 9-0. In fact, the decision went beyond just a 9-0 vote. The United States Supreme Court has long signed uncontroversial, routine decisions as “The Court”. In the 1980s, The Canadian Supreme Court adopted this custom. But unlike the American Court, the Canadian Court doesn’t use it when cases are simple. Decisions signed “The Court” are often on controversial subjects. Judges use “The Court” when they wish to present a united face on a contentious issue. This is only possible when judges respect each other, when judges listen to each other, and when judges put respect for the law and the constitution beyond any political feelings.
Academics who research the Canadian Supreme Court have found that the judges never cite political considerations as a reason for a decision, even in candid, anonymous interviews. Judges do admit to being swayed by their colleagues, or softening their opinions in an attempt to achieve a consensus. Even if they cannot always agree, it is clear that the judges of the Supreme Court of Canada deeply respect each other.
Still, the Supreme Court is unelected and has been known to go against the wishes of the elected government. The idea of appointed jurists being able to quash what is ostensibly the will of the people makes some Canadians uneasy. Even the present good reputation of the court does little to allay these fears. The longest serving Chief Justice in Canadian history, Beverly McLachlin will be retiring soon and it’s unknown what this will mean for the tone of the court.
The fact that the Supreme Court could become a politicized, reactionary force cannot be ignored, and any argument for judicial supremacy must take that into account. The traditions of judicial congeniality and consensus are almost a hundred years old, but even this august body could be vulnerable to precedent drift.
It would also be silly to believe that the Supreme Court would remain as non-partisan if all legislation first had to pass before it. No Prime Minister would risk appointing judges that wouldn’t toe the party line and administrations would project outsized influence into the future if they could be lucky enough to appoint a majority of nominees.
Approval of every bill by the judiciary is such a tantalizing option because the judiciary is doing a much better job respecting the law than the government. On one hand, this isn’t surprising. The judiciary, after all, is the organization responsible for enforcing the law. If they cannot respect the law, than something is seriously wrong. But the government gets to make the laws! If any group should find themselves easily congruent with the law, it’s the folks who get to write it!
Wanting to write the laws is probably the reason why the government finds itself so often incongruent with them. Canada has had a constitution for thirty-three years. At all points before this, the government could write whatever laws it pleased. But now the government is constrained by higher laws. For constitutionalists, this is an excellent outcome. But for governments it tends to present a problem. No constitution, no matter how perfect at the time it was written, can survive repeated contact with the future. At 33 years old, the Canadian Constitution is barely chafing. Only the arrogance and backwardness of our present government has caused the conflict. But look at our neighbors to the South. The right to bear arms was reasonable in the 1700s. But now America is stuck with an epidemic of gun violence, an epidemic that it is constitutionally barred from ending.
XI – The Notwithstanding Clause
Even in a Canada where the judiciary was given veto power over the laws of parliament, parliament could still pass almost any law its pleases. Clause 33 of the Canadian Constitution reads:
(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
In common parlance, this is the notwithstanding clause. It is the compromise that allowed Canada to have a constitution. It’s also the Canadian Constitution’s greatest strength and greatest weakness all rolled into one.
This section allows the government to take away almost any right Canadians possess – except the right to vote. Parliament cannot sit for more than five years, and the notwithstanding clause, if ever applied, cannot be used for more than five years without renewal. The government can take away rights, but if the electorate doesn’t agree with their decision, we can boot them out of office and there is nothing they can do about it. But if, for example, the Supreme Court struck down laws against child pornography or repealed the age of consent, then the government would have recourse.
The notwithstanding clause has been used by provinces, with mixed results. Alberta tried to use it to stop gay marriage, but marriage is a federal matter in Canada, so their usage was ruled to be unconstitutional. Quebec used the notwithstanding clause on every law they passed for the first few years after the constitution was signed (by every province except them). The Federal Government has never used the notwithstanding clause. Its use would be unprecedented.
If the Federal Government were to use it, a Rubicon would be crossed. And if the Federal Government used it and got away with it, then the results would be catastrophic for freedom in this country. I can think of no worse precedent.
If the judiciary could veto any decision of parliament, then its all but guaranteed that the notwithstanding clause would see use. And then see use again, and again. How long would it take before its use became routine, and the precedent firmly set.
It’s for this reason that I cannot argue for judicial review of every law, as much as I like the idea.
XII. Why A Judiciary?
So far, we’ve begged the question on the existence of a judiciary. Even if we can trust a judiciary, why do we need one? We’ve just established that we cannot use them as a watcher on the government. Ignoring the practical purpose of a judiciary (having experts on something tends to make it go smoother), is there a deeper need for a judiciary? Why do we need judges to stand over us and, well, judge? Can we have justice that serves the common good without them?
Several philosophers have attempted to determine the “state of nature” – the way people would organize themselves absent government. Leaving aside the artificial nature of this concept, there are some interesting answers.
Rousseau believes that this was a state of harmony and freedom. Hobbes famously described the state of nature as one of “bellum omnium contra omnes” (“war by all against all”), where life would be “nasty, brutish and short.”
I don’t think either of these visions seem particularly realistic. People seem to basically value fairness. Reciprocal altruism is buried deeply inside of us. Yes, some of the strong may try to steal from the weak, but many others will choose instead to protect their less fortunate brethren.
John Locke believed that the state of nature was one where people were basically free and harmonious. But Locke knew that some people would hurt, lie, cheat, steal and murder. In such a case, Locke believed that anyone would have the authority to punish the criminal. But Locke also realized that most people couldn’t be impassionate judges of crimes committed against them.
This leaves us with two options: judges, or juries. Both of these systems have advantages. Juries are made up of ordinary people, and are bound to their morals as well as to the law. If they find a law unjust, they may refuse to convict, as happened when Morgentaler was charged with violating the therapeutic abortion laws. Juries can also capture a wider snapshot of society. Judges by the nature of their profession tend to be well educated and upper class. Juries may straddle class and racial divides. And while the effect of one prejudiced judge is often devastating, one prejudiced jury member cannot accomplish much.
But sometimes juries are prone to systemic biases. In the segregated south, black Americans were prevented from serving on juries. And in Canada there is ongoing concern about the underrepresentation of aboriginal Canadians on juries. And because of their ad hoc nature, juries are not made up of experts on the law. If they were called upon to interpret the law unaided they would run into frequent problems.
Judges are experts in the law. They are well trained in legal procedures and precedents. Appellate judges are often former lawyers, who have proven their skills by winning important cases. Judges are able to parse lawyer’s arguments, enforce the decorum of the courtroom, and challenge bad assertions or spurious logic.
But it’s a false dichotomy to require a choice between judges and juries. When used together, they have a certain synergy. Juries, drawn from wider society can determine the innocence or guilt of the defendant, while judges enforce order in the courtroom, and use their knowledge of precedents in common law to assign appropriate sentences.
XIII. Certain Procedures Revisited
It’s also a false dichotomy to demand a choice between “certain procedures” and justice. Justice cannot exist without certain procedures.
Crimes, injustice, wrongs. All of these cry out for us do something. But we must be careful what we do. We must not weaken the rights of everyone to punish criminals. We must not harm the common good in clumsy attempts to right wrongs. Justice on the back of bad precedents isn’t justice at all.