Three (men, maids or fools) in a tub
And who do you think they were?
The butcher, the baker, the candlestick maker...
- Old Nursery Rhyme
Are Canadian judges no different than butchers, bakers and candlestick makers?
This question, referring to an old nursery rhyme, was posed by a judge in the 2017 Alberta case of R v Gashikanyi. The case also raises interesting questions about the complicated role of stare decisis in Canada's common law legal system and judicial independence. This blog briefly examines the case and discusses judicial independence in the context of these issues, especially in light of some critical obiter comments made in the case.
I conclude that the case highlights a basic ambiguity in the function of precedent, that independent judicial authority to assign judges may be subject to review, and that diversity in the assignment of judicial cases generally is a factor that should be acknowledged and supported more explicitly in Canada.
2. Background Facts
This case involved a sentence appeal for a criminal conviction of sexual interference with a minor of two years less a day. The majority of the three-judge Court of Appeal panel allowed the appeal contrary to a couple of precedents. In its previous 2016 decision in R v Hajar, a majority of a five-judge panel of the Alberta Court of Appeal established a 'starting point' of three years in sentencing for major sexual interference crimes (para 40). However, in Gashikanyi Justice Berger considered the reasoning behind this 'starting point' (paras 37 - 48), and concluded that the earlier 2016 decision was wrong (para 52).
Justice Berger also found that 'starting points' practically constrained "the discretion afforded to sentencing judges" (para 19). Here the judge quoted with approval his own earlier judgment in R v Lee, where he found that the promotion of 'starting points' to the level of legal imperatives was a serious legal error (para 22), because they operate improperly "as a form of mandatory prescription for the imposition of minimum sentences below which sentencing judges fear to tread" (para 34).
The majority also did not follow the holding in the earlier Alberta case of R. v Arcand (para 52). That case is jurisprudential authority in Alberta for the proposition that Courts should respect the principle of horizontal stare decisis, which is that appellate courts should follow their own precedents (para 2). Ultimately, Justice Berger determined that the lower court decision in Gashikanyi, imposing a custodial sentence well below the starting point, should be upheld. (para 67). Justice O'Ferrall concurred in the result in separate reasons (para 76). Justice Rowbotham for the dissent would have both allowed the Crown's appeal, and imposed an higher custodial sentence (para 89).
Following his holding in the case, Justice Berger also made extensive obiter comments about the stare decisis and raising a potential criticism of how judges may be perceived to be assigned to cases at the Alberta Court of Appeal (paras 68 - 75). For example, in contending that panels should be randomly composed of judges of diverse viewpoints, he said (para 72),
"Judges are no different than butchers, bakers, and candlestick makers. All are human beings with different backgrounds and life experiences, different views of the world, and different philosophies."
Justice O'Ferrall concurred in the result, but did not accept Justice Berger's critical comments about the exercise of judicial assignment authority, which he described as "implicit in the office" of the Chief Justice (para 87). The third judge on the panel, Justice Rowbotham, also rejected the contention that cases at the Alberta Court of Appeal were not randomly assigned (para 114), and dismissed the proposition that legal decisions may be the product of the sensibilities of individual judges, and therefore not impartial (para 115), "in the strongest possible terms" (para 117).
Given Justice Berger's unusually explicit and direct criticisms of the Court and judicial administration in Alberta, it is perhaps understandable that the decision in Gashikanyi has become the subject of some discussion, see here. Aside from the tenor of Justice Berger's remarks, the issues in the decision raise several interesting points about precedent and the nature of judicial independence in Canada, examined below.
i) Vertical and Horizontal Stare Decisis - A Tempest in A Teapot
While seemingly straightforward, the principle of stare decisis is actually pretty complicated in a couple of ways. I've noted before its temporal complexity, see here, but stare decisis also has an added degree of structural complexity, especially as it operates within Canada's legal system. On the one hand, precedent is 'vertical' in the sense that lower courts are usually considered bound by the decisions from higher up the adjudicative hierarchy. On the other, Gashikanyi highlights the variable nature of horizontal stare decisis in Canada, which involves court decisions at the same or a similar level and whether they are binding.
The traditional approach, set out in the 1944 British decision of Young v Bristol Aeroplane Co. LTD (CA), allowed for only limited exceptions to horizontal stare decisis. This strict approach has been complicated within the context of Canada's highly decentralized federation. There are potentially many possible horizontal precedents in Canada, because there are multiple appellate level bodies of comparable authority across the country. As Debra Parkes describes in her excellent article on the nature of the principle, other aspects of horizontal stare decisis in Canada are similarly unsettled and dynamic (pp 154 - 159).
A derivative question in Gashikanyi is raised by the practice of panels of three judges deferring to decisions of larger panels within the same provincial appellate Court. While this appears as the norm in Alberta, it's also a relatively new refinement to precedent, that Professor Parkes notes has now been recently adopted in other Canadian jurisdictions (pp 154 - 155). The general practice of smaller panels of judges deferring to larger panels, in Alberta or elsewhere, seems consistent with general rules of precedent. But overall a strict adherence to horizontal stare decisis appears instead to be slowly giving way to a more "liberal, functional approach to overruling in provincial courts of appeal" (p 154).
No precedent is ever wholly binding on a judge anyways. All judges can avoid being constrained by past decisions through the legal technique of 'distinguishing' a case, see eg, Paul (now 'Justice') Perrell's article, "Stare decisis and techniques of legal reasoning and legal argument." Consequently, and as I argue in my recent PhD, while our legal system tends to promote the idea of legal predictability and stability, the operation of stare decisis within the common law also contains a substantial (and I would say necessary) degree of inherent indeterminacy (see esp Ch 2). One can never be absolutely sure that a precedent will apply, or apply in the same way, in any legal case.
Given this, Justice Berger's recent determinations and remarks about the operation of precedent are really a bit of a tempest in a teapot in my opinion. While not following some established precedents, Justice Berger's comments and decision fit readily within constitutionally recognized independent right of individual judges, to not follow what is apparently settled law, by using widely accepted approaches to legal reasoning.
ii) Judicial Assignment Authority
The far more interesting legal issue raised in Gashikanyi, is the question about the operation of judicial assignment authority. Here, Justice Berger's comments suggest that there is, at least, the appearance that Court of Appeal judges are not assigned randomly to panels, but rather based on their approaches to the law. This is the point of Justice Berger's allusion to the nursery rhyme, which is meant to suggest that explicitly random judicial assignment better respects a potential diversity of legal perspectives. This issue has at least 2 dimensions.
The first dimension of Justice Berger's comments highlights the nature of the judicial assignment authority. The implication of Justice Berger's comments, that the composition of judicial panels are, or may be perceived to be, manipulated to favour certain jurisprudential outcomes is a little troubling. Since the 1989 Supreme Court of Canada decision in McKeigan v Hickman, assignment of judges and cases has been considered to be a part of the administrative authority of the judicial branch of government. This authority which has been accorded constitutional protection as part of the independence of the judiciary in Canadian jurisprudence, in a line of cases starting with the 1985 Supreme Court decision in Valente.
However, as I've recently noted in the context of a proposed requirement for judicial education currently before Parliament, see here, the principle of judicial independence is conditional. In this instance judicial administrative authority for assignment and scheduling in the court system likely also has some limits and may be subject to review, see eg Wachowich v O'Reilly. If this precedent also applies in the context of the issues in Gashikanyi, then the Court may not have an absolute discretionary authority in this area. It is not clear if there is any evidence to support Justice Berger's criticisms (see eg para 114 of the decision). However, possible limits on this aspect of judicial independence could mean that either assignment practices, or their appearance as the case may be, could also be subject to additional scrutiny in the future.
The second dimension goes to the heart of law, legal reasoning and the role of judges. Do the legal philosophies and prior experiences of judges make a difference in their decisions? Are judges mere technicians who apply the law, as suggested in more formal approaches? From yet another alternative 'realist' viewpoint, should judges take into account a wide range social and other factors? Justice Berger's comments seem to suggest an inclination towards the latter view, but the foregoing are only a few of several big questions raised by his obiter dicta comments.
In my view, the kinds of uncertainties raised by these questions are a large and vital part of the law. I discuss this issue in detail in my dissertation, noted above, and will discuss this in further detail in a future blog. Suffice to say for the moment that the commitment by many to law's apparent stability can sometimes make discussion about its more ambiguous and unpredictable nature difficult. In fact, some refuse to acknowledge the uncertainty and reject it outright. Like Justice Rowbotham's dissent in Gashikanyi (para 117) for example, many would dismiss the bald assertion, that judgments could be affected by a judge's background, as improperly challenging the presumption of judicial impartiality. To be fair though, these questions raise deep and longstanding issues, which touch on the very essence of what is law and how we identify it.
The critical obiter dicta comments in this case raise some concerns about how precedent operates in Canadian law. While the idea of common law precedent is pretty simple, this case highlights one aspect of the complicated nature of stare decisis. Ultimately, as a matter of horizontality, the operation of one of the most basic principles of our legal system still remains unclear. In this case though, because judges can use legal reasoning techniques like 'distinguishing' cases, the majority decision to reject some Alberta precedents was not pivotal to the outcome of the decision in Gashikanyi.
Another issue touches on the institutional independence of the Court and in particular the operation of the judicial authority to assign judges to cases. It is not entirely clear if the judicial authority to assign individual judges is subject to review. However, as it has developed in Canada, judicial independence is not an absolute principle. Given its importance as a public value, some of the more worrisome implications of Justice Berger's comments should likely be further addressed in some fashion. Whether in this or in some future case, there is some authority in Canadian law to suggest that judicial assignment may not be totally insulated from external scrutiny in any event.
On a final note, regardless of how these specific issues are resolved in Alberta, the case illustrates a profound question about impartiality in the legal system. Should the backgrounds and experiences of judges be considered in assigning cases? By comparison, these personal factors seem to be considered of some current importance with respect to the appointment process of the federal judiciary, see eg here. Perhaps it's also time to acknowledge that the diverse background and ideological perspectives of judges is also a strength in the assignment of individual cases, which should be more explicitly acknowledged and supported.