Address on Judicial Courage at the Joint Annual Meeting of the Supreme Court and Nova Scotia Court of Appeal

Justice Luc Martineau

White-Point, Nova Scotia

October 12, 2018

First of all, I wish to address my thanks and salutations to Chief Justice of the Nova Scotia Court of Appeal, Michael McDonald; Chief Justice of the Nova Scotia Supreme Court, Joseph Kennedy; Justice Elizabeth Van den Eynden who invited me to the Joint Annual Meeting of the Nova Scotia Supreme Court and the Nova Scotia Court of Appeal; Justice Jamie Saunders, supernumerary judge who I had the pleasure to meet last year in Toronto in a joint NJI/CIAJ program. Jamie traced with us how he was able to cope with various pressures and challenges throughout his long judicial career with which you are all so familiar.

Roughly speaking, a judge’s career will range between 10 to 25 years on the bench. More than 16 years have passed since my appointment in 2002. I was 47 years old, a relatively young age to accede to such an important function. As a rookie judge, William Andrew MacKay, who left us in 2013, was one of my models. Many of you may know him, at least by reputation. Before his appointment, Andy taught Law at Dalhousie University for more than 25 years, served as dean, and presided the Nova Scotia Human Rights Commission. Today, I am 63 years of age, and if I am telling you about Andy, it’s because for me he represented the ideal judge. He was a perfect gentleman. He was able to connect with people. He used words that were readily understandable by the layman. He was kind, patient, and dignified. Not fearing reversal, there were no unimportant cases for Andy. And, he never forgot to use the principal tool of a good judge: common sense. But more than that, he succeeded in serving justice unselfishly. He did not seek recognition and prestige. And above all, he had a sense of duty and a loving care for the humble. This is virtue in its purest sense.

This brings me to the reason why I have been invited to your annual meeting.

I guess some of you have already read my article on judicial courage (The Honourable Luc Martineau, "Does Judicial Courage Exist, and if so, is it Necessary in a Democracy?", (2018) 8:2 online: UWO J Leg Stud 6 https://ojs.lib.uwo.ca/index.php/uwojls/article/view/5733). Because it is an essay, it is not easy to summarize my travel down the road of justice in only 45 minutes. Every judicial career is different, and we do not necessarily face the same challenges. As a Federal Court judge, 80% of my time is devoted to judicial review. Provincial Superior Court judges will spend much of their time in civil and criminal matters. I am not here to sell you any product, or teach you how to use a particular skill. There is no patented formula for the art of judging. This speech is more personal and my general conclusion is simple: we must remain true to ourselves as judges. And yes, I will speak about courage. But, I must first confess the following: after the excitement of my first years on the bench, there came a time that I would call “judicial maturity”. It is neither disillusionment nor nostalgia. It is that sense of carrying responsibility. It comes with our immense power. A terrifying power indeed. After all, our judgments will profoundly affect the lives of people coming before us. Carrying responsibility has nothing to do with guilt – right or wrong. It has to do more with the meaning of justice and the reason why we wanted to be judges in the first place. In other words, are we always true to ourselves and our ideal of justice in this imperfect system?

Does judicial courage exist, and if so, is it something to value in a free and democratic society?

I asked that very same question to many colleagues. Their opinions diverge on the creative function of judicial law making and the judiciary’s role in a democracy. Moreover, judicial independence is either confused or melted with judicial courage.

First, some colleagues questioned the existence of any concept labelled as “judicial courage”. And even more so, the propriety of the very use of this expression. There are no courageous judges, only judges who perform their judicial duty – which is to render justice, nothing more and nothing less. It is not for the judge to make the law. The judge simply declares what the law is. In countries where there is no guarantee of independence, judges must be courageous. This is different in Canada and the United States. As a matter of principle, judges must refrain from interfering with the choices made by the political actors in the guise of determining the constitutionality or legality of a statute or regulation. These colleagues were critical of various decisions rendered by the Supreme Court in certain high profile cases we do not need to allude to today. Judicial activism is reprehensible. Judicial restraint is the norm. I call this the conservative duty-based approach to judging. It is more rule-oriented. This is the path on the right.

Second, many other colleagues did not question the existence of judicial courage. They even provided me with examples of instances where they thought that they had acted courageously. Some colleagues were candid enough to suggest that this may have had a negative impact on their chances to be elevated to a higher level. But all viewed integrity as the foremost virtue: it guarantees their impartiality and independence. Once the judge has made up their mind, he or she must have moral courage to render an unpopular decision. The law of the land must be interpreted in a purposive and dynamic manner. By resolving each set of facts before him or her, the judge undoubtedly shapes and guides the law. In practice, the judge must be sensitive to the competing values at play and ensure that minorities are not oppressed. The Court’s function of conducting judicial review of state action inherently entails some interventionism. Indeed, the Supreme Court of Canada, rightly so, forced legislators and governments to change existing legislation or regulations which did not comply with the Constitution or the rule of law. I call this the liberal virtue-based approach to judging. It is more value oriented. This is the path on the left.

A question of proper vocabulary

In my essay, I propose a redefinition – say a reconciliation – of judicial restraint and activism. In my opinion, there should not be separate paths on the right and on the left. This is not about choosing between good and evil: judicial restraint or judicial activism. Justice lies somewhere in the center. There may be many paths before reaching a destination. Sometimes, it is necessary to intervene. Other times, it is appropriate to exercise judicial restraint.

Judicial courage better describes the complex reality of judicial intervention which is far from unidimensional: virtue and duty are tightly intertwined and may even conflict with one another. Judicial independence is a cornerstone of the rule of law and depends on the learned judge’s commitment to doing the right thing. In a nutshell, the brave judge conscientiously applies the law of the land as he or she understands it, without fear or favour and without regard for the decision’s popularity with his or her contemporaries or the general public.

Courage is a forceful duty responding to the individual and collective expectations of any society bound by the rule of law

Last year, Justice Saunders and I had marvellous exchanges about the inner conflict a judge will face where the rule of law and justice are clashing. Herman Melville’s masterpiece, Billy Budd, Sailor and subtitled “An inside narrative” (Broadview Editions, Peterborough, Ontario, 2016), captivated our interest. For those who have not read Melville’s novel – the author of Moby Dick – Billy Budd is not just a story about life on the sea at the end of the 18th Century, it is philosophical tale about justice and its limits.

Budd, aged 21, is a foretopman. He is forced to leave The Rights-of-Man – a British merchant ship – to serve on the “H.M.S. Bellipotent, a seventy four gun Royal Navy ship on her way to fight the French Navy.

Claggart, the master-at-arms, hates everybody. He is profoundly evil. Budd is candid and innocent, something Claggart cannot support. He falsely accuses Budd of conspiring to provoke a mutiny. Budd is convoked by Captain Vere in his cabin to confront his accuser. Because the shock is too great, Budd can hardly speak. He inadvertently kills Claggart with a blow.

As Budd tries to explain to the officers who are trying him in Court Martial:

“No, there was no malice against the master-at-arms. I am sorry he is dead. Could I have used my tongue I would not have struck him. But he foully lied to my face and in presence of my captain, and I have to say something, and I could only say it with a blow, God help me!” (page 110)

But for Captain Vere, striking an officer is, according to the Articles of war, a capital crime. There is no room for clemency or mitigation of the death penalty: “Our vowed responsibility is this: That however pitilessly that law may operate in any instances, we nevertheless adhere to it and administer it” (page 114)

Jurists are trained to value the rule of law. Judges are expected to uphold the rule of law no matter the circumstances. More, it is their duty. Today, would a Martial Court condemn Budd to death? I leave the decision to you…

Courage is also a virtue that places the individual at the center of any social system valuing the administration of justice by an independent judiciary

I prefer to speak of virtues instead of rules. Virtues are positive. They have a voluntary character and trust the individual. Rules are negative. They have a mandatory character and do not trust the individual.

For me, it all comes down to one basic question: what moral aptitudes and character traits make a good judge?

There is no guarantee of justice except in the judge’s personality. Speaking of courage as a virtue: it’s an inclination of the soul. It’s a proper attitude and posture in life. Like any living being, the judge must recognize and face fear. The Judge who has controlled his or her fear will be able to stand up and do the right thing.

And, where the law and justice are irreconcilable, it’s having the courage to resign if necessary.

Like Thomas More who resisted Henry VIII and resigned as Lord High Chancellor of England.

Like the French Judge Paul Didier, who, during the occupation of France by Germany, publicly refused to swear allegiance to the head of state, Marshal Pétain.

Like American Pennsylvania Supreme Court Judge Lois Forer. She preferred to resign instead of violating an appellate order to resentence an offender to the statutory minimum sentence; the offender had already purged his sentence and was obviously rehabilitated.

Courage is also a principled position. It’s a moral commitment to accept the consequences of any action taken. That being said, judicial foolhardiness is not courage.

Courage is acting in the immediacy of the moment. It’s facing reality. It’s not searching for an easy way of dealing with the matter. It’s not willful blindness. It’s also respecting the parties. It’s not escaping one’s role as an impartial and neutral arbitrator. It’s not masking relevant evidence, but uncovering the truth and telling who lied, and who was transparent, where the evidence is contradictory. It’s being able to humbly withstand insults and accept criticism. It’s integrity. It’s being responsible. It’s having an upmost respect for the law, but also knowing that in cases where there is some level of judicial discretion, equity will always be part of the equation. In other words, the good judge will always render a decision that best conforms in law and principle to what is right in order to achieve a just result.

Be true to yourself and master the art of judging which can also be an extreme sport!

The essence of courage is to knowingly expose oneself to serious adverse consequences as a result of doing or saying something that one strongly believes to be “right”. The severity of such consequences for the judge varies enormously from one case to the next. Indeed, judges in dictatorial regimes have faced removal from office, arrest, imprisonment, torture or death for rendering a decision that displeases the authorities. Doing your job with integrity in these circumstances is courageous. This does not mean, though, that judges cannot also be subject to threats of violence and hate-filled abuse in democratic countries.

Language is a powerful communication instrument which has no boundaries and shapes the world. As social media ascends, reason is becoming overshadowed by opinion, truth by alternative facts and reality by vocabulary, all things foreign to courts of law. Nowadays, there seems to be no air for judicious neutrality. The epithets “activist”, “reactionary”, “liberal”, and “conservative” pollute public discourse and have become all too familiar. In a polarized America, justice has become an extreme sport where the judiciary stands trial. Would-be pundits and commentators profusely use a partisan language which indelibly marks courageous judges who have been called on to uphold the law or to determine if a law respects the Constitution.

As an example, to better illustrate this point, just remember the public outcry in response to the decision rendered in 1999 by Justice Duncan W. Shaw in R v Sharpe, 22 CR (5th) 129, 169 DLR (4th) 536, 1999 CanLII 6380 (BCSC). He had found Robin Sharpe not guilty of possessing child pornography on the grounds that the provisions of the Criminal Code in question were unconstitutional because they were overbroad, a judgment that was upheld on appeal (1999 BCCA 416), but ultimately reversed by the Supreme Court of Canada who incidentally noted that the trial judge “courageously ruled that s. 163.1(4) is unconstitutional” (2001 SCC 2, [2001] 1 SCR 45 at para 13). However, demonstrating a form of judicial realism, the Supreme Court nevertheless chose to “read in” exceptions that allowed the disputed provisions of the Criminal Code to withstand the constitutional challenge despite their apparent defects. One may wonder whether this extraordinary reading-in power can, at will, be equally exercised in first instance by trial judges.

Be that as it may, Justice Shaw was caricatured in local newspapers and was given the glorious moniker “Mr. Justice Bonehead” by a radio host. He was summoned to come to the radio station and explain his judgment to the outraged listeners. The police had to protect his residence. Despite the criticism and the distressing experiences he and his family lived through, Justice Shaw continued to believe in the public’s right to criticize court decisions: “We are a strong society because of freedom of expression, even when ill-informed”. (Duncan W. Shaw, Child Pornography and the media : R v Sharpe, in Dialogue sur la justice : le public, le législateur, le tribunaux et les medias (Thémis, 2002 at 103).

I say it to you today. Yes, even if Canada may not compare to the US, day-by-day judging is becoming more of an extreme sport and, nowadays, who wants to become a persona non grata in the age of social media?

There is no need to reiterate that judicial review of state action is constitutionally protected. Indeed, it has, from day-to-day, proven to be the best non-violent means of ensuring respect for the rule of the law. The judicial process’s transparency is upheld by cogent and articulate reasons. The existence of a right to appeal allows errors of law or fact to be remedied. We hear today that democracies are in crisis. In theory, the separation of powers should be a sufficient safeguard against authoritarianism. Unfortunately, history has proven otherwise; after all, Hitler was the product of a democracy. The rule of law cannot prevent such lapses from happening again, unless judicial culture becomes impregnated with a set of strong values.

Detractors of a strong judiciary may label courage as analogous to what they would call judicial activism or interventionism: a Court that makes its own laws, while ignoring the forest that stretches far beyond the trees. Such fears are perhaps understandable, though they fail to see judicial courage for what it truly is. A judge who strikes down a law (or upholds it) by succumbing to pressure does not act with courage, for judicial courage becomes a virtue only when it is coupled with judicial integrity and impartiality.

Indeed, the judiciary’s strength, as an institution, only goes as far as the willingness of its individual judges to inoculate themselves from those attempting to transform them into puppets and pull their strings, or into sheep to herd them where they choose. The question is not whether we should put our faith in the judiciary. Rather, do we want to change the present paradigm and accept that justice is now a commodity to be rationed when fundamental freedoms and democratic rights are jeopardized?

How many cases in the past were based on false assumptions: black persons are inferior; women and children are not persons; animals have no feelings, etc. Where a precedent perpetuates oppression, the judge has moral license not to follow it. Any proffered truth should always be examined before the judge blindly accepts it. It is the necessities imposed by cherished democratic values that give true meaning and life to the law and its language. Ideology has never commanded the edification of Canadian constitutional law. The Constitution would not be the “living tree” we know without judicial recognition of human dignity and faith in democratic institutions. In this area, the courts have played a historic and courageous role which has contributed to the reinforcement of justice with dignity.

That being said, in any judicial dialogue between the Judiciary and the Executive or the Legislative, each must know its place and respect the other.

I will conclude this speech with this fable from Aesop who lived in Ancient Greece.

A man and a lion are disputing which one of them is superior as they travel together on the road. As proof of his superiority, the man points to a statue.

It shows a lion being strangled by Hercules. “Naturally, this is the work of man”, remarks the man.

The lion stops the man and explains’ “If we lions were artists, you would see the man placed under the paw of the lion.”

The man continues to argue that his fellow men are superior. The lion seizes the man and tears him to pieces: “Now you see who is superior.”

Ultimately, we, humans, should never lose sight of who we are in the first place: a reasonable species having chosen to be governed by law…

Man or lion?

I will let you decide.

Thank you for your attention.

The Honourable Luc Martineau