Examining the twin phenomena of legal uncertainty and laws that sometimes produce unjust results, Justice Robert J Sharpe of the Ontario Court of Appeal concluded that both arose from an essential characteristic of the law itself, in which it had to be framed in terms of norms or standards with general application.
In his FLJS lecture ‘How Judges Decide’, Justice Sharpe said that while laws set standards, they didn’t decide specific cases, and this was where judges must use their skills, expertise, and exercise judgement. ‘That is the role of the judge: to interpret the standard and decide whether or not it applies to the facts of the case,’ he said.
Justice Sharpe argued that the law should be examined in both context and legal formulation, stating that, as a judge, he saw the law as a tool, rather than an abstraction, and that the proper interpretation and application of legal rules depended upon the context.
That context itself could change as social conditions and attitudes evolved. He cited the example of equality in law and same sex relationships. Once criminalized, same sex relationships now enjoy legal protection, as the meaning of equality, as a cornerstone of the rule of law, had changed alongside social attitudes.
This did not, argued Justice Sharpe, mean that law subject to context was uncertain or wide open to individual judges’ perceptions, beliefs and biases.
He accepted that legal reasoning had a formal structure to which judges must adhere but said that the law did not operate in a vacuum and that he often had to decide on legal disputes that arose from the realities of daily life and a wide range of changing social, economic and political contexts.
It would, he said, be impossible to apply the law in a mechanical way. This would be to ignore the important question of what values actually drive and determine decisions.
Judicial reasoning, reflecting upon and questioning the values that they apply was essential for all judges, he said.
Justice Sharpe then examined the two, disparate schools of thought, where, on the one hand, narrow legalism meant always deciding according to the letter of the law and, on the other, the uncertainty of its meaning and context rendered the law indeterminate.
He then put the question of judicial decision-making into perspective, where, he said, the majority of legal cases centred around contested issues of fact, not law. Focusing on the few difficult appellate decisions was to ignore the vast majority of readily resolved disputes.
The majority of his work as an intermediate appellate court judge was, said Justice Sharpe, ‘error correction’ and we should not become too obsessed with hard cases, where uncertainty reigns.
‘Our encounters with trees - the tough cases - may have caused us to lose sight of the forest - the law,’ he said.
Moving on to difficult cases where the law doesn’t not have a clear answer, Justice Sharpe argued that it was not his personal beliefs and values that determined the case.
‘It seems to me that correct results are what the legal system aspires to achieve and that my working hypothesis has to be that I am in pursuit of the right answer...’
While rejecting narrow legalism, Justice Sharpe accepted that there was a necessary element of formalism in judicial decision-making, such as minimum statutory mandatory sentences, and stare decisis, the legal principle of determining points in litigation according to precedent.
He then described the ‘artificial reason’ of the law, where arguments must have a certain pedigree to qualify as legitimate, and discussed collegial decision-making, which provided a strong counter-weight to any arguments that judges are influenced by values extraneous to the law and would, certainly, dilute any personal views.
The collegial process also meant judges must listen to and engage with arguments by both the litigants and lawyers and those of fellow judges, when preparing reasons for a particular judgment.
Judicial authority was equally constrained by the need to respect the boundaries of decision-making authority, as well as the evidence, record and the parameters of the dispute.
While accepting that legal scholars and many judges and lawyers doubted the efficacy of these described constraints, Justice Sharpe also touched on the discipline of reasons, where the obligation to give reasons for a particular decision was far more than just a legal formality.
For litigants, reasons were more than just a simple matter of justice and fairness, he said. They represented the right to be heard.
A reasoned decision helps a losing litigant know that the judge actually understood and grappled with the issues. It needs to be completely clear to both parties why one has lost and the other has won.
‘Reasons,’ argued Justice Sharpe, ‘demonstrate that the decision was not arbitrary or based on personal whim.
‘Reasons reflect our obligation to expose our thinking to the parties, the appeal process, the academics, the media, the public, and the politicians.
‘If our reasons are not based upon sources and arguments accepted by the legal community or fail to abide by the relevant accepted legal norms, they will not withstand scrutiny, whether in the court of appeal or in the court of public opinion.’
A podcast of this lecture is now available.