BarTalk April 1999
Volume 11, Number 2

Judicial independence in the face of public ire

by Doug F Robinson QC

Public opinion today appears to hold an immense amount of power. It determines who will and who will not be in government; what will be viewed favorably and what will be denounced in our media; and which policies may and which may not become law. Fortunately, it does not yet have the power to influence judicial decision-making--but not from lack of effort. Public and media reaction to recent decisions by Mr. Justice Duncan Shaw and Madam Justice Claire L’Hereux-Dube are good examples of this point.

I believe there are people in our society who want to use the power of public opinion as a weapon to shape lawmaking, enforcement and the courts into their own image of “justice”. We may not all agree with every judge’s decision, but we can surely agree on the importance of each judge’s ability to render a decision without being influenced by fear of public pillory, professional attack or personal threats. This freedom--called judicial independence--is an essential component of a stable society and strong economy.

One of the vital responsibilities of the Canadian Bar Association, and of every lawyer, is to help educate the public and to help the public understand what the justice system is all about, particularly when a judge makes a decision while correct “at law” may be unpopular. For public confidence in the system to be strengthened, our citizens--and the media which feed them information--must be constantly challenged in their belief that an unpopular decision means that the justice system is somehow “failing” them.

Responding to public derision of an unpopular decision may be difficult, but it is also a golden opportunity to explain the very principles upon which our justice system is based, and the many checks and balances which exist to protect our society from any human or legal errors in the system. A decision is made by a judge on the basis of hearing an exhaustive number of details about each individual case, reviewing the legal arguments presented, and making an impartial decision based on precedent and within the confines of Canadian law as created by politicians. The appeal process ensures that any questionable decision can be challenged for review by other judges. The Judicial Council ensures that legitimate complaints about a judge are heard and acted upon. Also, the public must be made more knowledgeable of the facts. Elected provincial and federal politicians have an ongoing role in creating and amending the laws of the land if a judicial decision exposes a flaw in law.

Of course, public opinion about the justice system is never irrelevant. I say this for two reasons: first, there is much to be learned from criticism; and second, the effective administration of justice is only possible when there is public confidence in the system which administers it. That is why the Canadian Bar Association is constantly in the media on this subject, and why our role as advocates for law reform generally receives such national attention (witness the Globe and Mail front page coverage on March 23, 1999, where the byline read “Government to heed bar association”).

That is also why the CBA is such a strong proponent of including an expanded and revised “Civics” course of study within the education curriculum in our schools. As BC Hydro’s recent “Power Smart Generation” advertising shows us, it only takes a concentrated effort in the education of a single generation to make a huge difference to the attitudes and behaviors of society. I want all of us who practice law in this province to be able to stand here 10 years from now, knowing that we have nurtured a generation of well-educated children who know the strengths of our system of justice, and who truly understand why a healthy justice system is the foundation of a healthy society.

This article was published in the April 1999 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.