The fallout from the Leo Tesky appeal continues, with journalists, legal scholars, and the Alberta Minister of Justice criticizing Judge Brad Kerby, who now faces the possibility of disciplinary action. It’s also led to a more general discussion about how judges are to be selected for the bench, and if judges have enough experience dealing with matters of criminal law.
This is happening at the same time as the matter of judicial independence is popping up in the US. For a taste of that, take a look at this take on the matter by the Harvard law and social psychology blog, the Situationist:
A study following the effect of the Supreme Court of Canada decision might find judges are now going to file decisions more promptly, or are perhaps going to decide to file fewer decisions for want of time and judicial resources.
By way of reminder, here is what Justice Charron had to say about how the law should judge a judge’s delay in giving reasons for a verdict (emphasis added):
Even though there is a presumption that judges will carry out the duties they have sworn to uphold, the presumption can be displaced. The onus is therefore on the appellant to present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the reasons constitute an after‑the-fact justification of the verdict rather than an articulation of the reasoning that led to it.
Really? Aren’t all judges verdicts an exercise in sophisticated post hoc justification. It seems naive to think that written judgements are a logical mapping of the intersection of law and fact onto a clean slate, especially when moral decisions don’t work that way.
The science of decision-making has something to say about this. Consider, for example, an article by Chad Oldfather, who argues writing can sometimes lead to poor decisions.
What sort of decisions are vulnerable in this way? The messy ones, of course.
Primarily these will be decisions that turn largely on the assessment of complex, fact-intensive situations in which largely inarticulable, context-based judgments matter more than precision and technical analysis.
- Chad M. Oldfather. “Writing, Cognition, and the Nature of the Judicial Function” Georgetown Law Journal, Vol. 96, 2008. Available at SSRN: http://ssrn.com/abstract=978688 (Hat tip to Empirical Legal Studies blog.)
With that in mind, take a look at the Legal Theory Blog’s post on judges’ obligation to give reasons, which references research undertaken by Dave Hoffman. His blog post on the topic offers an exchange between a judge and a lawyer which feeds our intuitions about why reasons are important:
The Court: Defendants’ motion to dismiss is denied, and the motion for lifting of the stay is denied . . .”
Attorney for Evicting Party: May I ask the reasons, your Honor?
The Court: Just because I said it, Counsel.
We rightly rebel at this type of appeal to authority, and not just because it reminds us of an overwhelmed parent. In matters of public policy, reasons are key to the recruitment of agreement or the acceptance of legitimacy. Absent justification, verdicts are hollow declarations which only carry the weight of the speaker’s office.
This makes it tough on judges, who have to rule on complex issues which affect citizens’ legal rights. It is easy to understand why they sometimes find it difficult to articulate their reasons for a verdict.
Frequently enough one thinks one has the answer; but on sitting down, it will not write.
Justice Kirby, meet Judge Kerby.
Kirby J. has captured the problem in the Tesky case. Writer’s block born of indecision about a complex case – and not inexperience in matters of criminal law – was the likely the real problem that bedeviled Judge Brad Kerby during the 14 months between the hearing of evidence and the submission of his decision. No matter what you think of the majority decision of the Supreme Court, looking for the cause of the delay in the appointment of inexperienced judges misses the mark.