Excerpts from Final Appeal: Decision-making in Canadian Courts of Appeal, by Ian Greene, Carl Baar, Peter McCormick, George Szablowski and Martin Thomas.  (Toronto:  Lorimer, 1998)

Note:  The version below is taken from an earlier draft version of the text.

Chapter 1
Judicial Discretion and Democracy

It is an uncomfortable fact of life that no particular approach to justice, ethics, or governing can be proven, beyond any doubt, to be "right."  Deep in our psyches, most of us probably wish that this were not so.  We would like to think that there are some higher authorities that "get it right," if not all the time then at least most of the time.  Judges are high on the list of credible authorities among Canadians, and this is one reason why Canadians tend to hold them in such high esteem.

A recent survey showed that 70 per cent of Canadians had some degree of confidence in the courts, compared with only 46 per cent who had the same confidence in Parliament.  Fifty-two per cent rated the ethical principles of judges as higher than average (and 41 per cent said they were the same as those of most Canadians), while only 17 per cent rated members of Parliament as having higher than average ethical principles (and only 41 per cent said they were the same as those of most Canadians).

The higher the rank of the judge, the more we expect that judge to make "correct" decisions, both from a technical legal point of view and from the perspective of justice and ethics.  Unfortunately, things are not this simple.

First, there is the "human" element.  Like all human beings, judges sometimes make errors.  Hence, nearly all cases involving serious consequences can be appealed to a higher court that performs an "error correction" function.  But appellate court judges are human, too, and sometimes they make errors from which there is no appeal.

Even more important, judges also have discretion to choose from an array of potential decisions, none of which could be shown to be "incorrect."  For example, when the law is unclear, judges must, in a sense, make law to create the necessary clarity to decide cases.  Moreover, judges have their own ways of arriving at and defending a particular decision.  No two judges, after hearing the same case, follow exactly the same reasoning process to make a decision or write opinions using precisely the same words.  Furthermore, different judges might give different weights both to factual and legal matters, and in some kinds of cases this different weighting can result in deciding the same kinds of issues in quite divergent ways.  What determines a particular judge's decision is a combination of his or her personality, values, background, and legal education, especially those aspects of a judge's personal history that affect how the reasoning and writing process.

Second, we live in a democracy, and so we expect judges to leave the process of lawmaking to our elected representatives.  However, no matter how hard a judge may try to defer to the "will of the people," this general will as expressed in the law can rarely be absolutely clear.  Sometimes, even when the general will is clear, it appears to contradict an important constitutional principle in the Charter or another part of the constitution, and so it cannot be followed.  Thus there is an apparent contradiction between the expectations we place on our judges as a result of our democratic norms and the reality of judicial discretion.

This chapter is intended to pursue two fundamental points.  First, we argue that the debate about whether judicial lawmaking contradicts democracy becomes far less important when democracy is conceived of not merely as lawmaking through elected legislatures, but more basically as government based on the principle of mutual respect.  A more important debate ought to be whether judges tend to pursue decision-making strategies designed to give effect to democratic principles.  Second, we argue that the extent of judicial discretion is broader than it is generally considered to be.  These misconceptions about judicial discretion have contributed to the impoverishment of the debate about the optimal role of judicial policy-making in a democratic context.  The "human element" in judicial decision-making is more important than it is often thought to be.  However,  judicial discretion is an inevitable fact of life.  Moreover, judicial discretion is not necessarily anti-democratic --  it all depends on how this discretion is used.

Judicial Lawmaking vs Democracy

It is useful to review the strands of thought concerning the relation between judicial activism and democracy in Canada because underlying this intellectual activity there is either a divergence of views about the nature of democracy or just plain fuzzy thinking.

In the nineteenth century, following the example of the Austinian positivists, it was generally thought in common law countries that good legal reasoning had reached such a state of perfection that intelligent, experienced judges who followed the correct procedures would nearly always arrive at the "correct" legal answers in their cases.  Thus, there was no conflict between the judicial role and democracy as judges merely applied the law as enacted by elected legislatures.

This school of thought, which had been adopted, among others, by  A.V. Dicey, was attacked in the twentieth century by "legal realists" who argued that legal rules can never be that clear and that therefore the individual predisposition of judges must necessarily affect their decisions -- the more so when interpreting constitutions, because constitutions are written in general language to cover a very broad range of issues.  (Compare the broad and general language in the seven-page Canadian Charter of Rights and Freedoms, with the tediously precise wording of the 500-page Income Tax Act -- and even the tediously precise Income Tax Act has spawned thousands of pages of interpretation bulletins.)

The realists' concern was with a small minority of cases in which the law was unclear because potentially conflicting laws governed a specific situation, or no law clearly applied, or a law contained internal contradictions, or the law was worded very generally.  But even in these hard cases, there were "better" and "worse" outcomes according to most legal practitioners, depending on whether the judge followed the commentator's preferred reasoning process.  So the problem for democracy was a small number of cases in which judges exercised policy-making discretion.

It is generally accepted that appellate judges have greater scope for discretion in decision-making than judges in the lower trial courts.  This is because the appellate judges encounter a higher proportion of hard cases -- those about which equally competent jurists are likely to disagree -- thanks to the fact that hard cases are more likely to be appealed than straight-forward cases where nearly everyone agrees what the relevant law means.  As well, the higher the position of the judge in the judicial hierarchy, the less encumbering are the rules of stare decisis -- the common law doctrine of precedent -- because there are fewer courts "above" whose decisions are supposedly binding.  At the top, the Supreme Court of Canada is free to overrule its own precedents and those established previously by the Judicial Committee of the Privy Council in London, which was Canada's highest court until 1949.

The era of the Canadian Charter of Rights and Freedoms, beginning as it did in 1982, has inspired a great deal of angst among Canadian academics about the role that judges ought to play in democratic institutions.  The post-1982 literature on the Charter and on the role of the judiciary could easily fill a bookcase or, to make the point in more up-to-date terms, a CD-ROM.  This is because the Charter has made judicial discretion more publicly visible, and therefore, for the first time to any significant extent, generally troubling.

Peter Russell, who is now professor emeritus at the University of Toronto, more than anyone has encouraged the analysis of the Canadian justice system from a political science perspective.  Since the 1960s, Russell he has been producing a steady stream of influential books and articles that have provided deep insights into the nature of judicial discretion, and to what gives rise to "judicial power."  From Russell's perspective, judicial power is manifest primarily, but not exclusively, in hard cases, and in higher courts. The Charter changed the degree, not the nature of judicial power.  Judges do sometimes have a profound influence on public policy, and because such influence is unavoidable, Russell advocated more democratic approaches to the selection of judges (he was the first chair of Ontario's Judicial Appointments Advisory Committee), more effective training programs for judges, and better mechanisms for ensuring judicial accountability.

Prior to 1982 Russell had been sceptical about whether the Charter of Rights and Freedoms would result in the enhanced protection of human rights for Canadians.  He observed that judges were not better equipped than elected legislators to make decisions about how to protect human rights, except possibly legal rights like procedural safeguards in criminal prosecutions.  Russell also pointed out that the legal-judicial system is not nearly as well designed as the legislative system to make good public policy in the area of human rights.  In Russell's evaluation of how the judges have handled Charter jurisprudence, they have not done as badly as had been feared by Charter sceptics like himself, but neither have they done as well as the Charter enthusiasts had predicted.

In his controversial book The Charter of Rights and the Legalization of Politics in Canada, Michael Mandel argued that the Charter gave birth to "the legalization" of politics.  What he meant was that some of the most important public policy decisions had been taken out of the realm of democratic debate and placed into the hands of an elite class of unelected, unaccountable, and socially privileged individuals.  Mandel claimed that nearly every important Charter decision has resulted in enhancing the status of social elites in Canada, of which judges and lawyers are an important segment, thus further diminishing the lot of the underprivileged.  From Mandel's perspective, the legal-judicial process itself is biased to favour the rich and powerful.  Litigation is expensive, and lawyers with the highest fees tend to win the most cases.  The rules of evidence filter out factors important to the underprivileged, factors that would have a greater chance of being heard in the democratic legislative process.  Politics has become more "legalized," more the preserve of the advantaged classes.  Mandel's advice to those with a progressive social policy agenda is to ignore the Charter, avoid the courts, and concentrate on effecting policy changes through the democratic process of elections and legislatures.

Many scholars and practitioners reject the legalization of politics argument.  They also question the proposition that judicial review is inherently undemocratic.  We share this perspective, for several reasons.

First, as a category of judicial decision-making distinct from dispute resolution,  judicial review accounts only for a small percentage of the workload of the trial and appellate courts.  Thus, judicial decision-making does not convert courts into political actors analogous to legislatures, government executives, or bureaucracies.  When, in the course of judicial review, the courts are compelled to examine policy questions, the narrow and issue-specific scope of inquiry cannot be comparable to the broad mandate that governments have to make comprehensive policies within their constitutionally defined jurisdictions.   Senior government bureaucrats, who exercise overall much greater impact on policy and its implementation,  are as unelected, unrepresentative, and socially privileged as judges, and their accountability to the public leaves a great deal to be desired.  Most federal MPs and members of provincial legislatures have very little power compared with cabinet ministers or senior bureaucrats.

Charter review is only one of three types of review practised by the judges in Canada's courts.  The other two have for many years before 1982 permitted the courts to make important political and policy decisions, and their legitimacy is now rarely questioned.  Since 1867, in the course of legislative review, the courts have reshaped and redefined the political powers of Canadian governments to make laws, and they have significantly and permanently influenced the development of federal-provincial relations in Canada.  Administrative review, which predates Confederation,  has been responsible for many leading decisions directly affecting such policy areas as immigration, police powers, security, labour relations, and municipal government.  In the words of Nicola Lacey, a British lawyer and academic, "No reasonably independent-minded and critical observer of the judiciary's activities in the areas of judicial review of administrative action ... could possibly imagine anything other than that judges already exercise substantial political power."

Judicial review is a well-established practice that forms an integral part of the Canadian legal tradition which is rooted in British constitutionalism and the rule of law.  Judicial review was not invented with the Charter in 1982.  On balance, it is fair to observe that the policy output of the Canadian courts pursuant to Charter review since 1982 still falls considerably short of their similar output pursuant to legislative and administrative review.  It is thus plainly inaccurate to blame the Charter alone for the legalization of politics in Canada and to claim that the  Constitution Act, 1982, has fundamentally altered the role of Canadian courts.  Both trial and appellate courts are typically reactive institutions.  Without a writ and a statement of claim or an inscription in appeal, the courts can do nothing.  Unlike political executives and bureaucracies, they will not initiate or develop a policy process nor render a decision unless specifically and formally asked to do so in the context of existing litigation.

Finally, those who employ the legalization of politics thesis in an attempt to criticize the Charter and judicial review as undemocratic fail to recognize the essentially corrective role of the courts in a system of parliamentary majority rule with executive dominance of the policy process.  This corrective role of the courts, exercised when human rights are in danger, is especially important in a country such as Canada with numerous minorities of many types, which are unevenly distributed territorially and often are politically weak or unable to gain access to the political establishment.  In such circumstances, judicial review is clearly not undemocratic.  On the contrary, it strengthens political pluralism and enriches democracy itself, and it is essential for the preservation of mutual respect.

Rainer Knopff and Ted Morton, whose book Charter Politics was published in 1992, are the best-known critics of the Charter from the centre-right of the political spectrum.  Like Mandel, they lament that the Charter has transferred power from democratically elected legislatures to judges.  However, from their perspective this development is unfortunate because judges may become the unwitting pawns of either left-wing or right-wing social activists.  They argue that the Charter is a two-edged sword -- it can be used to slash either to the right or to the left -- and the history of the U.S. Bill of Rights has shown that the pendulum tends to swing back and forth in response to both historical trends and the impact of particular personalities on the courts.  In another volume, Rainer Knopff is sceptical about whether judges -- or indeed any policy-makers -- possess the wisdom to engage in "social engineering."  Knopff and Morton are considered to be on the right because of their scepticism about the possibility of success of social policy initiatives.  They argue that policy activists have no moral right to impose their designs on society, and hence they advocate less government intervention.

Knopff and Morton spelled out the danger inherent should judges over-step what ought to be the legal bounds of their authority and become "oracles" of social policy.  Should oracular judges deem themselves not to be limited by the intent of the framers of the constitution, a dangerous combination will be struck.  These judges would ben be giving themselves a carte blanche to rewrite the constitution from the perspective of their own limited wisdom, something that is not only foolhardy but undemocratic.

Christopher Manfredi made a contribution to this debate about the proper role of judges in Canada's democracy in his 1993 book Judicial Power and the Charter.  He suggested that all branches of government, whether judiciary, legislative, or executive (cabinet and civil service), have responsibility for interpreting the constitution, including the Charter.  The Charter recognizes this joint responsibility in large measure because of the infamous Section 33, the "notwithstanding" clause, which gives Parliament or a provincial legislature the power to enact a law for five-year renewable periods so that it can operate "notwithstanding" the sections of the Charter dealing with fundamental freedoms, legal rights, and equality rights.  Thus, Section 33 is a signal that cabinets need not roll over and play dead in the face of important judicial interpretations of the Charter.  Rather, cabinets ought to be encouraged to review these decisions and to challenge them, if necessary, through the introduction of a Section 33 override into the appropriate legislation.
Manfredi observed that the wording of the Charter gets the democratic balancing act about right, giving appropriate powers to each branch of government.  However, as a result of a historical accident, Section 33 has lost, at least temporarily, its legitimacy.  As it has turned out, the first time that Section 33 was used in a politically significant way was by the Quebec government of Robert Bourassa in 1989.  Bill 178 was spearheaded by Bourassa.  He used the Section 33 override to uphold the provisions in Quebec's Charter of the French Language forbidding the use of English on outdoor commercial signs contrary to an explicit decision of the Supreme Court of Canada that Bill 178 violates the Charter.  The reaction of Anglophone Canada to this manoeuvre was so negative that Section 33 was roundly condemned -- unfairly, from Manfredi's perspective -- and this situation became a major factor explaining the eventual failure of both the Meech Lake and Charlottetown accords.

If it had not been for the Bill 178 fiasco, argued Manfredi, Section 33 might have been used by the federal government to counteract what many consider to be two bad decisions of the Supreme Court of Canada:  Askov  in 1990, and Seaboyer  in 1991.  The Charter of Rights and Freedoms guarantees Canadians a right to a trial without "unreasonable delay;" Askov forced the Supreme Court to define "unreasonable delay."  The decision was complex, but with the effect that criminal cases delayed for more than eleven months can be dismissed.  Tens of thousands of cases in Canada's criminal courts were dropped because of the delay between arrest and trial if the delay was not caused by the accused person.  Manfredi argued that Parliament could amend the Criminal Code to define unreasonable delay as, for example, delays exceeding fourteen months, and should the court strike down that definition, then Parliament would be justified in invoking Section 33.  In Seaboyer, the Supreme Court struck down the "rape shield" protections in the Criminal Code that protected rape victims from having to expose and defend their sexual history.  The majority on the court felt that the rape shield provisions might result in unfair trials for those charged with sexual assault.  Prior to these decisions, most of the Supreme Court of Canada's decisions on the Charter had met with general approval.  Even the Morgentaler decision -- that struck down the sections of the Criminal Code dealing with abortion -- did not prevent Parliament from introducing another abortion law that respected the procedural rights of women more effectively.

It is important to note that in 1997 the Parti Québécois government of Lucien Bouchard decided not to re-enact the Section 33 override to protect the provisions for French-only outdoor signs. Over the years since the controversy over Bill 178, Francophone opinion in Quebec had come to the conclusion that Bill 178 was too draconian and that the Supreme Court of Canada's recommendation for protecting the French language, suggesting that French could be predominant on outdoor signs but other languages need not be prohibited, was acceptable.  Use of the Section 33 override had resulted in a democratic and public debate about the appropriateness of the override in this circumstance, as was indeed the intention in framing Section 33 with its built-in five-year expiry period.  Perhaps Anglophone opinion in Canada may yet come to accept that Section 33 can be useful both to provide a counterbalance to judicial decisions in a democratic context and to promote democratic debate.

In Politics and the Constitution, Patrick Monahan argued that, in order to resolve the dilemma of the possibility of judicial fiat in a democratic setting, the courts ought to make decisions that wherever possible reinforce the democratic process.  If a court is faced with two alternate ways of resolving an issue, both of which could be considered legally correct, then it ought to choose the route that results in the greatest public input into the issue.  For example, if the issue before a court is whether a particular municipal zoning by-law is within the jurisdiction of a municipality to enact, and if there are sound legal arguments on both sides of the issue, then the courts ought to consider whether the by-law promotes democracy through broad and fair public participation or whether it restricts democracy.  If it turns out that the by-law promotes democracy, then this factor ought to be considered as a point in favour of upholding the by-law.  Appealing as this approach sounds, however, the problem remains that there may not be many cases where considerations of participative democracy are relevant to the outcome of a judicial decision.

David Beatty's stepped into the democracy versus the courts debate with his book, Constitutional Law in Theory and Practice.  Beatty argued that in the current complex political environment, issues of individual fairness are liable not to get the attention they deserve from elected politicians.  Therefore, a transfer of some decision-making power to the courts is not a bad thing in order to prevent the legitimate rights claims of individuals -- claims legitimized by laws enacted by democratically elected legislatures -- from falling into the cracks.  Judicial participation in policy-making is therefore essential to preserve fundamental democratic norms.  Judges themselves ought to, and often do, approach constitutional adjudication in a way that reinforces the logic of the constitution.  They do so by ensuring that legislatures have chosen the best-available policy alternatives and by ensuring that legislative advances are not outweighed by cuts to personal rights and freedoms.  Beatty argued that, as long as there is continued improvement in the process of selecting Supreme Court judges, and in making them more accountable and more responsible, there will be no inherent contradiction between judicial review and the democratic process.

Unlike the many studies of the courts and democracy that have tended to focus on judges, Alan Cairns pointed out that a major impact of the Charter has been to fortify the political power of groups previously marginalized by the political process.  These "Charter Canadians" include women, seniors, the disabled, visible minorities, and, to some extent, Aboriginal peoples.  All of these groups had an impact on the wording of the Charter in the early 1980s; the Trudeau government formed alliances with them to get the Charter past the barriers being erected by a coalition of anti-Charter provincial premiers.  As a result of their involvement in the process, members of these groups have come to see the Charter as an entrée to political influence, through the possibility of judges supporting their claims, that they could not have achieved as easily through the elected legislatures.

This review of the debate about the courts and democracy indicates fundamentally that the nature of democracy is often assumed to have something to do with policy-making through elected legislatures.  More thought needs to be given to the nature of democracy itself in order to produce a clearer analysis of the role courts ought to and do play in the democratic process.

Democracy and judicial decision-making

The selection of leaders through elections and the approval of laws by elected legislatures do not in themselves define democracy.  These are merely visible manifestations of an underlying principle.  This notion was alluded to in the Supreme Court decision on Quebec secession in 1998:
     Democracy is commonly understood as being a political system of majority rule.  [But] Democracy is not simply
     concerned with the process of government.  On the contrary ... democracy is fundamentally connected to substantive
     goals, most importantly, the promotion of self-government....  [T]he Court in R. v. Oakes, [1986] 1 S.C.R. 103,
     articulated some of the values inherent in the notion of democracy (at p. 136):

      The Court must be guided by the values and principles essential to a free and democratic society which I believe to
      embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and
      equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and
      political institutions which enhance the participation of individuals and groups in society.

      ... [D]emocracy in any real sense of the word cannot exist without the rule of law....  Finally, we highlight that a functioning
      democracy requires a continuous process of discussion ... compromise, negotiation, and deliberation.  No one has a
      monopoly on truth, and our system is predicated on the faith that in the marketplace of ideas, the best solutions to public
      problems will rise to the top.  Inevitably, there will be dissenting voices.  A democratic system of government is committed
      to considering those dissenting voices....

The court listed a number of the important ingredients of democracy.  But, we argue, behind all these the basic principle from which the notion of democratic government arises is the principle of mutual respect.  Indeed, democracy can be thought of as government based on the principle of mutual respect.

Samuel LaSelva, in his book The Moral Foundations of Canadian Federalism, sketched the development and interplay of various notions of democracy in Canadian history.  There is the Lockean approach based on individual rights that tends to be favoured in Anglophone Canada.  There is the Rousseauian idea that emphasizes the importance of the cultural community that has drawn more support in Francophone Canada.  There is the Aboriginal Canadian perspective that emphasizes consensual decision-making.  There is the tension between proponents of local democracy and those who advocate more centralization of power at the provincial or national levels to ensure that "prejudice and intolerance are easier to combat and equal citizenship is more secure."  Finally, there are debates between those who prefer more participation by citizens in the development of public policy, and those who defer to policy-making through accommodation of elites, because they claim this method tends to result in a maximization of individual benefits.  What all these strands of thought about democracy have in common is respect for the aspirations of all citizens, or a more or less unconscious conception of mutual respect.  Our view is that more conscious thinking about the nature of mutual respect may lead to more effective refinements of democratic institutions and procedures.

Mutual respect is the notion that every human being in a society is important and equally deserving of respect.  Every person is an end in himself or herself, not to be seen merely as a means to achieve someone else's goals.  Each person's life is important. The right of all individuals to develop their potential and to make choices about their lives without interfering with the similar right of others is fundamental, along with the responsibility to contribute to the political conditions that make the implementation of mutual respect possible.  Among contemporary political philosophers, John Rawls comes closest to describing what we mean by mutual respect with his emphasis on consideration for the needs of the least advantaged in society when democratic institutions must choose among competing notions of social equality.

Definitions of democracy often begin with the principle of majority rule through fair and open elections.  We consider selection of governments through election to be only one among several subprinciples of the basic axiom of democracy -- mutual respect.  The other important sub-principles include
  •decision-making through consensus where possible and practical, and, if not, according to majority rule
  •respect for the principle of social equality, which, to use Ronald Dworkin's words, means that "individuals have a right to equal concern and respect in the design and administration of the political institutions that govern them"
  •respect for minority rights, meaning that minorities are owed the same concern and respect as majorities
  •respect for fairness, meaning both sides in a disputes about the application of law have a right to a fair hearing before an impartial tribunal
 •respect for the rule of law
  •respect for the value of freedom, or the right of citizens to determine their own priorities and to develop their human potential except in a way that interferes with the equal right of others to do so (including freedom of expression and of the media, which were described in the 1938 Alberta Press Case as "the breath of life for parliamentary institutions")
 •respect for integrity, which we take to mean honesty implemented through compassion
From this perspective, the alleged tension between democracy and judicial decision-making becomes less of a conundrum.  One of the purposes of courts in a democratic context is to resolve disputes about the application of the law such that when there is judicial discretion, it acts to promote important subprinciples of democracy, such as procedural fairness and the impartial application of the law, and through these the democratic principles in the constitution, such as social equality, protection of minority rights, and freedom of expression.

What becomes important, then, is how well the courts perform functions involving discretion, rather than whether the lawmaking aspects of judicial decision-making can be considered as representing the views of the public at any particular time.  As long as the judicial process is organized to make the promotion of mutual respect as much of a reality as possible, there is no necessary contradiction between the lawmaking role of courts and democracy.  There will always be legitimate debates about whether the existing rules and practices controlling the interplay between the legal-judicial system, the legislative-executive system, and the public results in the optimization of democratic norms, but the question about whether judicial lawmaking is democratic becomes much less important.

Judicial Discretion
Our position is that in the realm of hard decisions where an appeal court is split, it is frequently the case that neither the majority nor the minority decision can be held up as "the one right decision" according to an objective analysis of the law.  From a legal perspective, the majority decision is the "right" one.  However, minority judges and judges writing separate concurring opinions also believe that their opinions are legally sustainable, and in most cases this is correct. Academics will argue over which interpretation of the law is the most persuasive to them, but this academic discussion rarely demonstrates that there is clearly "one right answer" to a particular issue of interpretation.

For example, take the Supreme Court's decision on abortion in the Mortengaler decision of 1985.  The issue was whether Section 251 of the Criminal Code of Canada, the abortion section, violated the right of pregnant women to "liberty" or to "security of the person," both of which are guaranteed in Section 7 of the Charter of Rights.  Section 251 prohibited abortions unless they were performed in a hospital designated by the provincial minister of health and approved by the hospital's abortion committee.  The decision was heard by a seven-judge panel, and five of the judges decided that Section 251 was unconstitutional, but for three different sets of reasons.  Altogether, then, there were four opinions delivered (three for Morgentaler and one against), and all of them are arguably legally correct.

Chief Justice Dickson and Justice Lamer concluded that Section 251 violated the procedural rights of women because "[f]orcing a women, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus a violation of security of the person."  Justices Beetz and Estey agreed, but would have found such a violation constitutional as long as the law was rationally designed to protect the fetus, which they concluded was not the case.  Justice Wilson, the fifth judge writing for the majority, wrote that not only were the procedural rights of women violated, but their fundamental right to freedom of choice had also been negated.  She said that "the basic theory underlying the Charter [is] that the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life...."  The two judges in the minority, McIntyre and LaForest, thought that the court should give more weight to some of the testimony in the courts below, which indicated that, in spite of the admittedly cumbersome wording of Section 251, "[n]one of the testimonies of medical doctors who had performed abortions produced examples of abortion applications ultimately refused, and no woman testified that her application for an abortion had been refused."

All four decisions are compatible with the Charter of Rights and Freedoms because the is worded generally and is therefore subject to varying interpretations.  What is important to note is that the writer of each of the four opinions was obviously concerned with the value of mutual respect, but each emphasized different aspects of this value.  Dickson and Lamer stressed the procedural rights of women; Beetz and Estey, the need to protect the fetus; Wilson, the freedom of choice owed to women; and McIntyre and La Forest, the evidence about the actual impact of the law.

In holding that it is often the situation in hard cases that there can be a number of competing decisions that could all be considered theoretically "correct" according to law, we are not adopting a relativist perspective that holds that no particular philosophical stance is better than any other.  Nor are we assuming the view of legal positivism, which claims that standards of right and wrong are determined solely by elected legislatures, and the only role of judges is to interpret accurately the legislature's intent.  Our position is that judicial decisions in hard cases can be placed on a continuum from excellent to poor, with the best decisions most in accord with the principle of mutual respect and the subprinciples associated with it.  There will always be debate about which are the "best" decisions.  With regard to the Morgentaler  decision, it is possible that a consensus may never develop as to which of the four decisions represents the best reflection of mutual respect, because all four are compelling in their own ways.  The genius of democracy is that it teaches us how to live with some degree of uncertainty; learning how to live with that uncertainty is essential to the preservation of mutual respect.

To give due regard to the principle of deference to the majority, judges need to do their best to give effect to the intent of elected legislatures in their decisions, except when to do so would violate the principles of social equality, the protection of minority rights, and fundamental freedoms as outlined in the Canadian Charter of Rights and Freedoms and the common law.  Judges need to act with integrity, which includes attempting to be, and to appear to be, as impartial as humanly possible.  From this perspective, judicial decisions are "right" to the extent that they pursue the principles of mutual respect that are the underpinnings of democracy.  But there may be several right answers -- answers that all attempt to implement mutual respect but that are different from each other, perhaps because of different weights given to each of the principles of democracy derived from mutual respect, as the Morgentaler decision exemplifies.  Bear in mind that there are probably an infinite number of "wrong" answers, but that the potential number of "right" answers is far more limited.

The precise nature of a particular set of right answers developed by different judges is determined by the differences in their personality, values, background and legal education, and especially those aspects of their personal histories that affect how they reason and write about the nature of justice and democracy.  Good judges may disagree about what constitutes the correct legal interpretation of a particular set of laws as applied to a specific factual situation, without this disagreement implying that any of them is incompetent or acting in bad faith.

We suspect that many Canadian judges, lawyers and legal scholars may not be as open as we are to the idea that there are often several possible solutions to legal dilemmas in hard cases that could all be considered potentially "correct."  For example, our interviews with appellate court judges in the provinces and the appeal division of the Federal Court indicated that most of these judges were frustrated by the number of separate concurring decisions released in recent years by the Supreme Court of Canada.  Our interviews with Supreme Court of Canada judges indicated that all those interviewed were aware of this desire in the lower courts for "one right answer," but the majority thought that it would be intellectually dishonest to move in that direction, because in most cases there were, in fact, several competing "correct" answers, and the development of the law is stimulated by exposing readers to alternate modes of reasoning.

Whether because of an unconscious need to deal with the problem of competing right answers with as much fairness as possible, given the need to settle disputes about the law, or because judges are human and will sometimes make wrong decisions, our judicial system has evolved so that what are usually considered to be the most important appeals are decided by panels of judges.  These panels are composed of three or occasionally five judges in the provincial appeal courts, or by panels of five, seven, or nine judges in the Supreme Court of Canada.  Several heads coming together to resolve controversial issues seem to make the decision more acceptable and persuasive, the more so when that decision is accompanied by the reasoned argument that supports and explains it.

The great majority of appellate decisions in Canada are unanimous, but dissenting, as well as separate concurring decisions are acceptable.  We suspect, however, that many jurists have been more heavily influenced by the legacy of the Diceyan notion of the rule of law than they might be willing to admit in casual conversation.  A.V. Dicey was a late nineteenth-century professor of constitutional law at Oxford University who had an enormous impact on legal thought in the United Kingdom and other parts of the British Empire.  His writings on the nature of the rule of law provided the most thoroughgoing analysis of this important concept up to that time.  The basis of the rule of law is that public officials in democracies may act only according to laws authorized by elected legislatures and the law applies equally to everyone unless inequalities are built into the law itself.  The rule of law is fundamental to any democracy because it reflects the principles of deference to the majority, equality, minority rights and freedom.  However, Dicey developed a more specific version of the rule of law.  According to Dicey, first there was ever only one "correct" interpretation of the law and, second, in countries that have adopted the British parliamentary system of government, the judges of the superior courts ought to have the final say as to the interpretation of the law, subject, of course, to amendment through legislation.  Dicey had no time for separate administrative courts because they would allow several "right answers" to legal issues to co-exist in the separate court systems.

Thanks to the Diceyan tradition, voices in appellate courts that will not sing in unison are usually regarded either as exploratory attempts to find the right answer at the frontiers of legal reasoning or as necessary experimentation on the road to the right answer that eventually materializes.  Diversity is tolerated because it helps to "develop" the law to a higher state of correctness and justice.  But, in our experience, there is little tolerance in the legal profession and especially in the Canadian public for the notion that several potentially different "right answers" can co-exist, except among some appellate judges and especially among the members of the Supreme Court.

In the debate about judicial discretion in Canada, the focus is on the extent to which judges -- as opposed to elected politicians -- ought to be involved in deciding important issues of public policy, rather than the nature of discretion itself.  Our view is that because the nature of judicial discretion has not received enough careful analysis, the quality of the debate about the extent to which judges ought to exercise discretion over public policy issues has remained impoverished.  Furthermore, we argue that judicial discretion plays a more significant role in the judicial process than is generally assumed.  The common misconception that until the Charter of Rights and Freedoms, judicial discretion was so limited as to be nearly negligible is yet another reason for the poverty of the debate.

The Extent of Judicial Discretion

Discretion is unavoidable in judicial decision-making in the following three situations.  First, when the law is unclear, that is, in "hard" cases, judges must "legislate."  This aspect of judicial discretion is now universally recognized, and as already noted, the debate centres around whether, in a democratic setting, judges ought to pull in their horns so as to legislate as little as necessary or they ought to play a more activist role in order to deal with issues that legislatures are either too busy or too uninterested to handle.

Second, even when judges agree on the result, they have their own ways of getting to that result.  No two judges, after hearing the same case, if locked in separate rooms would write exactly the same decision.  For example, in the study of trial court decision-making conducted by McCormick and Greene, the authors found that trial court judges had four basic approaches to decision-making.  We described judges with these styles as "improvisers," "strict formalists," "pragmatic formalists," and "intuitivists."  We expected that these same approaches might be reflected in our interviews with appellate court judges, but, as we will show, because appellate decision-making is so different from trial court decision-making these "individualistic" discretionary factors were overshadowed by "collegial" discretionary factors.

Third, even in cases not considered "hard," different judges can give different weights both to factual and legal matters, and in some kinds of cases this different weighting can result in deciding the same kinds of issues in quite divergent ways.  This aspect of discretion is illustrated by a study that one of us conducted in 1990 of the "leave" decisions of judges of the appeal division of the Federal Court of Canada.  At that time, part of the workload of these judges consisted of considering about two thousand applications per year for "leave," or permission to appeal that were filed by refugee applicants whose claims had been rejected by the Immigration and Refugee Board.  The judges reviewed these claims singly, in their chambers.  Each judge would consider one to two hundred of these applications a year, usually in batches of about fifty every few months.  If the judges exercised little personal discretion, then we would expect that each judge would approve about the same proportion of leave applications, as long as there were no significant differences in the kinds of cases assigned to each judge.  This was not what was found.  As Table 1.1 shows, the average approval rate of the judges was 27 per cent.  However, the "strictest" judge (who made 203 decisions) approved only 14 per cent of the applications, while the most "liberal" judge (who made 188 decisions) approved 48 per cent.  The range of approval rates is nothing short of astounding.

When factors were tested that might explain the differences in the approval rates among the judges, such as the country of origin of the refugee applicants or the time of the year when the decisions were made, the differences among the judges remained.  A statistical test indicated that there were fewer than five possibilities in a million that the differences among the judges were merely chance.  Therefore, it was concluded that although the determination of merit was the major goal in the decision-making process regarding leave applications, it is possible for judges to give different weights to different relevant factors that affect conclusions about merit.  Individual judges tend to give different weights to these factors, and thus the end result was that some judges appeared to be "stricter" than others in making decisions about applications for leave.

In addition, an independent expert was retained to conduct a "blind" review of a random sample of 390 files.  The expert would have approved about 35 per cent of the leave applications overall, as well as about 35 per cent of the cases from the dockets of each of the judges.  This is not to say that the independent expert's decisions were "right" and those of the judges were "wrong," but rather that when the same weighting of relevant factors is applied to all cases through having the same person making the decisions, it appears that all the judges received about the same proportion of meritorious applications. There is no escaping the conclusion that given the same law and the same kinds of factual issues, some judges took a "strict" approach to granting leave to appeal, while others took a more "liberal" approach.

There was also a test to find out whether the cases that received leave from the "liberal" judges fared worse at the substantive appeal, that is, the actual appeal considered by three judges of the appeal division of the Federal Court for the cases granted leave, than the cases that received leave from the "strict" judges.  There was no statistically significant difference in rates of success in the substantive appeal between the cases granted leave by the "strict" and "liberal" judges.  This finding might be an indication that the "strict" judges did not necessarily have a better record of "screening out" weak cases in the leave decisions than the "strict" judges.  Therefore, refugee applicants who were unfortunate enough to have their leave applications come before a "strict" judge may have had less access to justice in the long run than those who were lucky enough to have their applications come before a more "liberal" judge.


 TABLE 1.1
Record of Dispositions:  All Leave Applications Filed with Federal Court of Appeal in 1990

 LEAVE                                       J U D G E
GRANTED?  Pratte  Linden Iacobucci Stone  Décary MacGuigan Hugessen  Urie    Heald  Mahoney Marceau Desjardins TOTAL

  YES              29      20        20       33       57          69           59      16       43       60         73        90           569
                     14%    16%     18%     21%     22%     23%       27%     28%      30%     36%     44%      48%   27%

   NO             174     101      92      125     200        228        157      42       98     105         92        98            151
                     86%     84%    82%    79%   78%       77%       73%   72%    70%  64%       56%    52%           73%

                                                                                               Grand Total: 2081*
*Applications which were withdrawn by the applicant (44), dismissed for non-perfection (171) or were pending (1) were not included in this table.  In addition, there were 7 files in which it was not clear which judge made the leave decision.

Significance of association = Less Than .000005
Cramer's V = .23


The three discretionary factors we have described -- that resulting from hard cases, that resulting from  the decision-making and decision-justification process, and that resulting from giving different weights to relevant legal and factual matters -- combine to make judging a very human process.

Judicial Discretion and Democracy
In this chapter we have argued both that judicial discretion is not necessarily anti-democratic and that judicial discretion is a more important factor in decision-making in appellate courts than is generally recognized.  This is not to say that we advocate that judges do or ought to depart from the law.  On the contrary, we hold the rule of law to be an essential principle of democratic government.  The law can usefully be thought of as a human instrument designed to promote the value of mutual respect.  As such, there is often an array of potentially "right" answers to legal disputes, in addition to an infinite number of potentially "wrong" answers.  The challenge of appellate courts is to weed out wrong answers from the courts below, while explaining why the particular answer that the court adopted was chosen as the best "right" answer from among competing alternatives.

In the chapters that follow, we analyse how the weeding and cultivating process of appeal courts works, using descriptions made by the judges themselves and an analysis of case flow from trial to appeal across Canada.  However, precisely how judges choose to weed and cultivate depends to some extent on their backgrounds, and in the next chapter we examine the backgrounds of Canadian appellate judges.