Angry in the Great White North

A study by Professor James Stribopoulos of York University's Osgoode Hall Law School reveals some interesting trends and biases in Canada's judicial system:

The study found that judges differed in opinion on Charter challenges, depending on whether Liberals or Conservatives appointed them. The study also traced divergent opinions to a judge's gender in family law cases.

Both of these factors had a greater impact when the appeals panel – which is almost always composed of three judges – was homogenous: when judges were either all Conservative or all Liberal, for example, or when all were men.

For example, when a convicted defendant makes an appeal after an unsuccessful Charter challenge to render evidence inadmissible, most panels upheld the conviction. But an all-Conservative panel affirmed the conviction 65 per cent of the time and all-Liberal groups upheld it at a rate of 87 per cent.

In that case, and despite impressions that Liberals would "be softer on crime," Stribopoulos said, "You would want three Conservative judges. Which is kind of crazy."

Crazy? I don't think so. James Stribopoulos might know a lot about the law, but little about politics, or perhaps about conservatives in particular.

Maybe he thinks conservatives are only interested in punishing people, having determined that they are bad people based on a literal interpretation of the Bible, and only after having called a televangelist for guidance and then praying to Jesus. If so, he probably hangs out with the rabble.ca crowd. Those folks don't understand conservatives. Conservatives want stability and predictability. People who break the law, of course, are destabilizing to the community. But more destabilizing than that is when the State breaks the law.

First of all, conservatives are not fans of Pierre Trudeau's constitution. We see it as far too accommodating of the State interests over the rights of the Individual. Unlike the American constitution, Canada's provides fewer protections for individuals (though groups enjoy better protections, so you are better off if you can argue that you are repressed in some way).

Second, conservatives are also generally literalists. Conservatives are distrustful of the amount of discretion judges seem to enjoy to ignore the letter of the law in order to make a personal political point. Consider the words of Canada's Chief Justice Beverley McLachlin on the question of judicial activism:

Judges should feel "emboldened" to trump the written word of the Constitution when protecting fundamental, unwritten principles and rights, Canada's Chief Justice says.

Beverley McLachlin, in a speech delivered in New Zealand, took on critics who say judges have no business going beyond the strict letter of the Constitution to strike down laws and enforce rights.

"The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion," said a prepared text of the lecture Judge McLachlin gave to law students at Victoria University of Wellington late last week.

Uphold unwritten norms in the face of clearly enacted laws? But the reason we write stuff down is to avoid the problem that the unwritten norms floating around in your head are at odds with the unwritten norms floating around in my head. Not only does that cause problems when the surprise rulings happen, her statements are insulting to those of us who presumably are bubbling over with unwritten norms are, well, abnormal, at least to her.

Her model of judicial activism is very destabilizing, because it is unpredictable. Which written law will McLachlin pay attention to? Which ones will she ignore for the unwritten norms du jour?

Written law is the result of open transparent debate and compromise. Not everyone will be entirely happy, but then at least it's all out in the open. Everyone knows what to expect.

So we have two issues at odds with each other. On the one hand, conservatives think the constitution is too lax when it comes to protecting individual rights. On the other hand, conservatives are more respectful of the written law than their liberal counterparts.

What does that mean?

What it means is that what Stribopoulos found makes sense. A conservative judge is not like a liberal judge. He is not worried about being hard or soft on crime. That's a political question, not a judicial one. The law is the law, and it has to be applied if the community is going to be stable. But in that application, there will be occasions when an Individual's rights appear to have been ignored by the State. To a conservative, the rogue behaviour of the State has far more potential to hurt people than just about anything an Individual can do**. A conservative judge will observe that there are holes left in the constitution where the rights of the individual can be strengthened through case law. So without ignoring the clearly enacted law or invoking unwritten constitutional norms out of the ether, a conservative judge will, in those situations in which it could go either way, probably rule in favour of the Individual. A decision founded in law that circumscribes the ability of the State to act with impunity is good for the community, as far as conservatives are concerned.

Constitutions are supposed to limit the power of the State, after all.

A liberal judge, on the other hand, will favour the State, since in his mind, the judge is the personification of the State, and the State (that is, the judge) knows best. Radical shifts in State policy, either through legislative means or by means of activist judges who ignore the written law in favour of their personal opinions, don't concern liberals all too much. For many liberals, a failure in a radical shift to achieve some end means simply that the shift wasn't radical enough.

Stribopoulos thinks it's "crazy" to want to be in front of conservative judges when a Charter challenge is on the line. Not at all. At least with a conservative judge, you know that he will favour the relatively powerless Individual over the powerful State, a State that needs to be constrained in its range of action.

So conservative judges will overturn convictions at triple the rate as their liberal colleagues? That's not crazy at all, since it is likely that the decisions made by conservative judges are based on a finding that the State had seriously infringed on the rights of the Individual. With liberal judges, it seems like an overturned conviction will be based on offering some sort of preferential treatment for an oppressed group. Treating an Individual as a stand in for some arbitrarily defined group suffering from a perceived social inequity and then ruling in their favour in order to establish a favoured status for that group is not the same thing as protecting Individual rights against the State. A decision based on preferential treatments for groups is destabilizing since it begins to put some Individuals ahead of others.

A judge who is protecting the individual is not crazy. On the other hand, a judge who thinks her personal opinion trumps both the authority of the State and the rights of the Individual...well...

** By the way, this is why conservatives treat terrorists so harshly. The ability of the terrorist to dramatically destabilize the community rivals that of the State. It is almost as if a terrorist is not really an Individual at all, but by virtue of his political motivation and his willingness to commit widespread mayhem, a terrorist is a State unto himself.