Judging in the 21st Century*

Superior Court of Justice Fall Education seminar

November 1, 2001

Toronto, Ontario

Rosalie Silberman Abella
Justice, Court of Appeal for Ontario

* To be published in the Advocates Quarterly in January 2002.

This wonderful invitation to participate at your seminar arrived at the beginning of September. The topic: "Judging in the 21st Century" intrigued me, and I immediately asked my law clerk to start a file of news clippings from all over the world with anything that mentioned "judges", "courts" or "justice" so that I could get a sense of what a justice snapshot would look like. That file had turned into seven file folders by the time I read it this weekend to prepare for this talk. But it wasn't the volume that overwhelmed me; it was the revelatory power of how the stories changed on September12.

And so, reading those voluminous clippings, I found myself absorbing a justice picture profoundly different from the Polaroid I had expected would come into focus when I first asked for the research. Rather than being able to place the information into the mental basket shaped over the years by my usual trio of judicial suspects - judicial activism, judicial politicization and judicial accountability - I found I had to completely change the shape of the basket. I had been presented with fresh evidence, evidence that was not and could not have been available when I first started thinking about the topic, and evidence that had the potential to affect my conclusion.

And then I watched part of the almost unbearably moving memorial on Sunday at the site of the collapsed towers in New York. What drew me to the TV was the music. It was the haunting Adagio for Strings by Samuel Barber. It was the same music Oliver Stone had used 20 years earlier in his elegiac movie "Platoon" about the Vietnam War. In that movie, one of the characters says: "There's the way things are, and there's the way things ought to be". That was the way people felt then about that war and about those times. Those times were the sixties, and they were the last time we were jolted from complacency into new definitions and new expectations of justice, when we last seriously thought about how things ought to be.

And so Barber's Adagio was the sound that connected history's dot for me from the turbulence of the 60s' to the turbulence of the 21st Century, when we in North America once again find ourselves dramatically jolted from complacency into new definitions and new expectations of justice. Just how dramatic the reach of that jolt will be is speculative at the moment; what is certain, however, is that its grasp will be no less than transformative.

To understand what judging means in the 21st Century, we have to have some understanding of how we expect that century to evolve. I bring no expertise to the task, only my curiosity, which, as always when I tackle the future, starts with the past. What did this new century evolve from? What is the 20th Century's justice legacy, the century that emerged fully conscious of injustice from the instructive chrysalis of the 1899 second Dreyfus trial, and, during its 100 year tenure, carried its intolerant lessons through some of the most horrifying injustices the world has every known.

And so back first to the other side of the millennium, as I start my impressionistic justice journey by travelling through the justice context of the last century.

By the time the last century closed, two main dynamics were directing the cultural stage in North America. Those dynamics were fundamentalism and pluralism, and both evolved with particularly worrying implications for justice.

First, fundamentalism or puritanism. As far as I can tell, fundamentalism used to be about religious orthodoxy and the maintenance of clear distinctions between right and wrong, as ecumenically declared. In their personal firmament, fundamentalists found answers to most of life's tough calls and were spiritually content to resist moral ambiguity.

As time went on, as is the case with many who feel they categorically know the difference between right and wrong, there grew a zeal to impose more universally the moral certainty puritanism preached. By the 1950's, after decades of moral pluralism, exhausted and wounded as we were by the horror and enormity of World War II, puritanism as secular morality surfaced as a majority phenomenon. It took the form of Dwight Eisenhower in the United States, Louis St. Laurent in Canada, the suburbs, bungalows, 2.5 children per family, one spouse per marriage, June Cleaver and her son Beaver, a station wagon, and a matching dog. The essence of the movement was conformity and the majority bought in. The "truth" was obvious, compliance was expected, and competitive truths and their adherents were squelched.

McCarthysim flourished in the name of this moral purity, and decent people behaved unforgivably. The people who started the movement were haters. Their followers were naive or worse. Anyone who resisted was labelled undemocratic, unpatriotic, Communist, or Jewish - often interchangeable terms in those days. Careers were ruined, injustices blatantly encouraged or not discouraged, horrendous assumptions tacitly accepted, and all while the continent yawned and stretched and felt proudly unified by the purity of its monolithic and homogeneous morality.

Is it any wonder we had the turbulent sixties? Or the loquacious seventies? Or the amoral eighties? Or the indifferent nineties? A devastating World War had shattered presumed civilities; the victims were humanism and humanity; the need for spiritual catharsis created a search for purifiers; the purification which started nobly at Nuremberg eventually ended ignobly at the House Un-American Activities Committee in Washington; the purified parents of the fifties created predictably bored progeny in the sixties; and a decade in the sixties was spent overreacting to the overpurification and oversimplification of the fifties.

But the purification of the sixties created its own new tyrannical truths - about adults over thirty and whether you could trust them, about respectability, about rules, and about traditions generally. The only thing the people raised in the fifties and those raised in the sixties had in common was that each group thought they had a monopoly on truth.

And that's why we did so much talking in the seventies. We had to try to figure out which value system was better, which side was right. So we discussed the environment, women, minorities, disabled persons, aboriginal people, marriage, sex, sexual orientation, religion, children, language, and education. We changed laws and social norms, and started to regroup. We sought refuge in like-minded people, battered as we were by the increasing stridency of the national and local conversations.

We also started to divide. By the time we finished talking to or at each other in the seventies, we had no idea who was right and who was wrong. There were no villains, but there seemed to be a lot of victims, and we were utterly confused.

In the eighties we fervently became one of three things: conservatized, radicalized, or self-centred. And each side of the triangle mocked the other two, claimed to represent a broad consensus, and expressed cranky frustration with public institutions. We lost our compass - and our tolerance. We held each other under siege, but we didn't know why we were giving ultimatums to each other.

And on top of all of this was imposed in Canada a Charter of Rights and Freedoms. I am a serious Charter fan and I always have been. But I think we have to be aware of what we coincidentally did in bringing in the Charter when we did. On top of a cynicism about whether democratically elected political institutions were properly accountable, we imposed unelected, unaccountable jurists to decide whether rights and freedoms no one understood but everyone passionately believed in, were being violated. On top of a debate about whether individual rights or collective rights were supreme, we imposed a Charter that was ideologically schizophrenic on the subject, and offered as a tool for brokering the issue the great jurisprudential problem-solving concept found in section 1: "It depends." On top of the public's relief that at last the concept of human rights was now constitutionally entrenched and therefore supreme, we imposed a notwithstanding clause, assuring people that in their own interests and for their own benefit, governments could suspend their otherwise constitutionally protected rights and freedoms (but not, ironically, their constitutionally protected division of powers). And on top of a nation increasingly divided over how to unify whatever it was that was holding it together, we imposed a unifying document that seemed to protect everyone's right to stay diverse.

So people who drew their lines through the debates of the seventies held tough and stayed tough through the eighties, comforted by the notion that the lines had become rights, and that the rights had been enshrined. Everyone began to claim a monopoly now not only on truth, but on justice as well. The Charter , in short, gave voice to the lines.

What could before have been labelled an individual's personal and idiosyncratic point of view, was now perceived by that individual as a constitutionally protected personal and idiosyncratic point of view. When individuals start to perceive that their points of view have constitutional validity, they start to take those views and themselves very seriously. And from there it's only a short leap to intolerance, to the kind of Pavlovian urge to impose your views on others and, more importantly, to exude the fumes of moral absolutism fundamentalism exhales. In short, by the 90's we came full circle back to the fundamentalism of the fifties, only now there were more truths more stridently demanding compliance and competing for primacy.

What about pluralism? The push to greater diversity began in the fifties with a burst of immigration adding to the existing collection of ethnic, racial, linguistic and religious groups; the beginning of human rights laws to protect them from discrimination; and a general concern about how to fit everybody in or, more pointedly, whether they would or should fit in even if we could. Many of these minority groups added their voices to those of the reawakened female ones in the sixties, and spent the seventies adding to the discussion table, among others, Francophones outside Quebec, and disabled and aboriginal people. And, by the eighties, lines had been drawn, sides taken, and expectations forcefully articulated.

When the Charter was introduced to this Ism, rights truly became Capitalized, and people started capitalizing on their rights. This "rights" frenzy produced an interesting phenomenon. As groups and the individuals in them spoke with increasing confidence of their rights, bolstered by the Charter and inspired by the Supreme Court of Canada, more and more people outside these groups started asserting their right to be free from pluralism. People we used to call "biased" now felt free to raise insensitivity and intolerance to the level of a constitutionally protected right on the same plateau with the rights of minorities, or women, or aboriginal people. We started to think that all rights were created equal, even the right to discriminate.

We forgot that not all rights are created equal. Some are more equal than others, and there is a difference between disadvantage and inconvenience. We became embarrassed to admit that yelling "fire" in a crowded theatre is fundamentally different from yelling "theatre" in a crowded fire station; or that teaching holocaust denial is different from teaching about the holocaust; or that promoting racist or sexist or homophobic ideas is different from promoting diversity. In other words, we forgot that intellectual pluralism does not mean the right to expect that racism is entitled to the same deference as tolerance.

So, by the end of the nineties, on the one hand we found some groups trying to integrate their distinctiveness into the mainstream, and on the other hand we found other groups trying to keep them or their distinctiveness out by setting homogenizing terms and conditions at the gate - more truths more stridently demanding compliance and competing for primacy.

We became "them and us" about too many things and we forgot how to listen. Too many people were claiming a monopoly on truth and insisting on imposing their truths on everyone else. We lost too much of our spirit of generosity and empathy, and grew far too judgmental. We were in danger of losing the ability to disagree with civility, and started replacing discussions with harangues, debates with ridicule, and disagreement with sarcasm. We became almost indifferent to compassion and we were losing our perspective.

These were the props that surrounded justice's performance in Canada and the rest of North America as the curtain rose on a new century. They have not yet been put in storage, because it is not yet clear how or whether they will be used as the 21st Century's scenes unfold. For the time being, they are in the wings, awaiting the possibility of the audience's revived interest.

But by the time this summer ended, judging from the clippings, North Americans had some of the following questions on their mind:

• How wise were Americans to devote so much of their political energy and $60 million of their budget to trying to find out if their President had had an extra-marital affair, something a good matrimonial lawyer could have done for half the money...?
• Did the American Supreme Court really mean that the sacred and constitutionally protected right to vote did not include the sacred and constitutionally protected right to have that vote counted?
• What did Gary Condit know about a missing congressional intern and when did he know it?
• Did New York publicist and socialite Lizzy Grubman intend to reverse her father's SUV into some locals in the Hamptons who wouldn't let her park where she wanted?
• Were Canadians more confused by trying to figure out the leadership perils of Stockwell Day or by the Prime Minister's investments?

The crash of four planes changed everything. We realized to our horror that while we were riveted on hanging chads and butterfly ballots, terrorists were next door learning how to fly commercial airplanes into buildings. In less than two hours on the morning of September 11, we went from being a Western world luxuriating in conceptual conflicts, to being a world terrorized into grappling with fatal ones.

This is not to say there were no terrifying plots unfolding internationally for our attention and consideration. It is just that we seemed to lack a sense of their urgency. So we noted the anti-globalization protests; the genocide in Rwanda; the massacres in Bosnia and the Congo; the violent expropriations and judicial constructive dismissals in Zimbabwe; the assassinations of law enforcers in Colombia and Indonesia; the slavery and child soldiers in Sudan; the repression in Chechnya; the cultural annihilation of women, Hindus, and ancient Buddhist temples by the Taliban; and the rampant racism tolerated at the U.N. World Conference Against Racism and Intolerance in Durban, South Africa. We noted them and, to some extent, responded. After all, we created an International Criminal Court, we arrested Pinochet and Milosevic, we passed a Convention on the Rights of the Child, we ended apartheid, and we endorsed a U.N. AIDs initiative in Africa.

We responded, but we did not anticipate. We ignored the evidence. Until the deadly destruction of the World Trade Centre and the Pentagon, we seemed to feel that these palpable and overriding injustices would, in time, either work themselves out or merge into history. And so, notwithstanding what should have been the indelible lesson of the Holocaust, namely, that indifference is injustice's incubator, we felt entitled somehow to defer consideration of our international moral obligations and hide behind contraceptive terminology like "domestic sovereignty" or "cultural relativism".

So we had, by September 11, no reliable enforcement mechanisms in place to enforce the rule of law internationally, and, more importantly, no reliable mechanism for developing a consensus as to what the minimal standards would be below which we would not tolerate breaches.

And so, when terrorism struck - again, we were unprepared, again.

What does all this mean for judging in the 21st Century? To begin with, it means that we are judging in the turbulence created by a public that is feeling particularly raw, a public with a heightened sense of injustice and a heightened thirst for justice. Does that impose new responsibilities on judges?

I would argue that it does not. What it argues for instead, is a corresponding heightening in our own awareness of what it is we do, and why and for whom we do it. Because at the end of the day, what irrevocably shocked the world about the horror of September 11, was how massively it violated our assumptions that our expectations about the rule of law were universally shared, at least to the extent that they would be respected in North America. Whether these expectations were reasonable is not at issue. They were genuine. We felt safe. We no longer do.

That means that in its vulnerability, the public will seek to have its confidence in justice restored and confirmed, which will likely take it on three different but psychologically synchronized justice paths.

The first two, the paths towards retributive and preventive justice, will seek to satisfy more immediate needs. The path towards retributive justice will create an expectation of military responses, like the bombing in Afghanistan. The preventive justice path will create expectations of state protection, like an anti-terrorism bill or enhanced airport security.

The third path is the one that time will increasingly and inevitably lead the public to, and that is the justice path that is represented by the impartial and independent application of the rule of law, the path that creates the expectation that despite the intensity of the agitations of the moment, the judiciary will continue to perform its time-honoured role as the arbiter of disputes between the individual and the state, between states, and between individuals.

Judges will be required, as they inevitably are in unsettled times of crisis, to monitor and determine even more scrupulously than usual, the permissibility of any limits imposed by the state when it purports in good faith to calibrate the tension between the public's insecurities and its need for security. What, for example, will constitute reasonable limits in a free and democratic society confronting terrorism. What evidentiary basis will assist us in deciding whether, how high, and for how long to raise the justificatory threshold for government intrusion?

President Bush changed the name of the campaign against terrorism from Operation Infinite Justice to Operation Enduring Freedom. Either way, the adjective connotes a long-term undertaking for his allies. That means that the public is likely to be apprehensive and raw for a long time. And that in turn means that as judges we will have to be vigilant for a long time: vigilant that we are neither over nor under-reacting; vigilant that we are paying closer attention to the law and evidence before us than to our own fears or misconceptions; vigilant in remembering that compliance with public opinion may jeopardize compliance with the public interest; and vigilant that our independence and impartiality are not cauterized by controversy. Vigilant, in short, that we do our best to keep doing our jobs properly.

We will have to continue to rely on our knowledge, courage, compassion and open-mindness, the foundational quartet we hope will produce wisdom. But in addition, we will continue to need external supports to perform our role properly: we will need our independence guarded and respected by the state, the bar and the public; we will need the resources to hear and decide cases in a timely and effective way; we will need security measures to protect our courtrooms from fear of harm; and we will need a public informed and attentive to what judges in democracies do, and how they are uniquely accountable.

In exchange, we have to be prepared to offer the following: a willingness to appreciate that the result in a civil trial is still financially and chronologically inaccessible for far too many people; our understanding that while the American appointment process is not the answer, as Professor Ed Ratushny points out in a brilliant recent article [1], we nonetheless have to find a credible way to keep the public informed about who we are and how we are appointed; an acceptance that the media at its best is an important democratic partner and that with increased scrutiny may come increased criticism; and a receptivity to reform based on the public's, not just our own, legitimate entitlements.

The fact that the public's expectations for justice in the 21st Century have been so severely tested does not mean that they are thereby rendered unanswerable. But it presents us with an enormous challenge - and responsibility - namely, how to keep alive the perception and the reality that we can deliver justice fairly in the restless aftermath of a seemingly intractable crisis, the effects of which will likely ripple through the century. The challenge the public expects us to meet is that we can deliver - with empathy and with vigour.

I have every confidence that the public's challenge will be met and that it has placed its trust in the best possible adjudicative hands. I wish you luck, I look forward to working with you, and I thank you so much for the honour of inviting me to share my thoughts with you today

[1] "Confirmation Hearings for Supreme Court of Canada Appointments: Not a Good Idea", in Essays in Honour of Gérald-A. Beaudoin, Carswell, to be published Spring, 2002.