Judicial discretion (personal values of judges)
-Judges have always exercised discretion, and not just with regard to “hard” cases. The law, being composed of words, can never be a perfect expression of the “will of the people.”
-How do appeal judges decided between opposing precedents (eg. POGG)?
-A third: higher authority, recentness of precedent
-Another third: admiration for j writing decision; size of panel, etc
-Final third: choose most “just”
-When would they depart from SCC precedent? 1: never
-Distinguish bad law occasionally
-A quarter: don’t follow precedent if it results in injustice.
-Because judges place such emaphasis on their views of “justice,” we need more appropriate procedures for judicial appointment, esp. for SCC
Procedures developed by appeal courts impact outcomes
-Every appeal court has different procedures, depending on history and leadership of CJs
-Alberta Ct of Appeal:
-ensures knowledge of appeal process available to incarcerated prisoners. Thus, AB has 2nd-highest cr ap caseload
-experimented with hearing leave and substantive ap together
-uses ad hoc judges from trial ct for 2/3 of sent aps and 8% of conv aps
-How do app cts handle problem of diff panels coming to different concls about same issues of law?
-“Shop talk” over lunch/coffee
-But Que & AB: split courts, so circulate draft dec’s to all js. Some cts see this as violating natural justice
-How are panels stuck? MB – random. ONT: always have an expert on panel; gender balance
-Senior j presides, but seniority determined differently
-AB: “paperless appeal”
-Sask and Que: designate a j in advance to write dec. Que: des. one judge to read everything.
-Reserved decisions: BC: 1/8 crim reserved; NB: 80%. Av: 25%.
-Issue: selection of CJ.
Interpersonal judicial relations on panels
To what extent do judges on panels try to persuade other judges of their position? Most don’t think it’s wrong to try to persuade other judges; most are against unnecessary dissenting, & sep conconcurring decisions.
Some judges don’t work well together, and on some courts CJ doesn’t put them on panels together.
How open are judges to listening to the views of their fellow judges? Should they be?
Judicial activism & democracy
Because judges must always exercise some discretion, we should attempt to ensure that judicial selection results in judges likely to promote democratic values.
Judges are more likely to be activist in this period because they perceive elected politicians shirking responsibility.
Best way to tackle excess judicial activism is to ensure that both elected
politicians and public servants have a better understanding of democracy
and human rights, and are more likely therefore to make decisions that
do not require judicial intervention.