Written by H. Martin Kay, Q.C.
On a recent taxi cab ride from the Vancouver International Airport to the law courts in downtown Vancouver, after delivering a monologue on a variety of topics, the driver expressed his opinion that our judicial system had failed (perhaps never was) to keep in touch with the common man or average citizen and ensure decisions were grounded on a reasonable understanding of the values and opinions of the public affected by the decisions. He then presented a rather novel solution.
Driving a taxi cab, he noted, brings one into contact with a wide range of people and provides a good, broad sampling of popular opinion. Judges, the driver thought, would be well served by driving a cab. By doing so, a judge would be able to talk to, or at least listen to, ordinary people and hear their concerns, frustrations and views on the full range of current topics and public issues.
The idea of a judicial cab company may seem humorous but like much humour, it is rooted in a legitimate concern. How indeed does the judicial system, or anyone for that matter, keep abreast of public opinion on moral values and similar issues? The judiciary, and the legal system generally, needs to be in touch with prevailing standards and opinion, all the more so when, with the Canadian Charter of Rights and Freedoms, courts are called upon to balance competing rights and interests. That requires a court to at least be aware of current public opinion. One cannot make that assessment unless one has not just some touch with those citizens and their every day lives, but a real understanding and appreciation of public opinion.
The issue is not new. For example, some years ago (1983, R. v. Westendorp) the Supreme Court of Canada dealt with a bylaw passed by the City of Calgary which was intended to keep prostitutes off the city sidewalks and streets. The Supreme Court of Canada overruled what seemed a very practical decision rendered by the Alberta Court of Appeal which had upheld the bylaw. The Supreme Court decision suggests that the prostitutes plying their trade on the sidewalk may create no greater problem than people stopping on the streets to talk about a sporting event. The Justices had obviously not seen downtown Calgary at that time in the evening. On Third Avenue at one o'clock in the morning or so, there could well be traffic jams.
One should perhaps be encouraged that the Justices were not familiar with the activities on "prostitute row" or similar locales in major Canadian cities. However, the local appeal court (from a safe distance) had an appreciation of the problem confronting major cities and that informed their assessment of the legal issues.
As noted, the issue is not new. Judges today are as interested in being well informed on those matters which bear on their decisions as their predecessors were. And, they are probably better informed as a general rule. Certainly, they have the ability to be. However, the Charter cases in particular have caused the public to give more thought to Court decisions generally, and to the role of the judiciary and the selection of judges in particular. It became an issue in this last election.
The judiciary is no less in touch than it was in the past. Indeed, the great American Chief Justice Holmes was reputed to be so aloof that he never read newspapers. And yet he is regarded as a great jurist.
What has changed, I suggest, is not so much the judiciary as the public's attitude toward it. More public interest can hardly be criticized. The move towards a more open selection process for judges, particularly for those on the Supreme Court of Canada, is long over due. It has to be appreciated, though, that a transparent selection process and better access to public opinion will not ensure that all judicial decisions are going to be acceptable to the public, nor should they. Firstly, any human institution is fallible and just as politicians can misjudge the public mood (as we have seen), so can the best intentioned judges. Moreover, the courts are expected to operate as a check, to protect individual rights against what is described as the tyranny of the majority. That role predates the Charter. Accordingly, while the concern that the judiciary be well informed is a legitimate concern, the public has to appreciate that differences are to be expected and are indeed an indicator of a properly functioning independent judiciary.