Judges and the rule of law transcript

Welcome to the Rule of Law Matters podcast. If you're wondering what the Rule of Law means and why it matters, this is the podcast for you. This is season one, episode 10, Judges and the Rule of Law. This podcast is brought to you by the Law Society of British Columbia. The Law Society is a regulatory body that protects the public by enforcing professional standards for lawyers in our province. We bring you this discussion today to raise awareness about the importance of upholding the rule of law. Here's your host.         

Jon Festinger:

I'm your host Jon Festinger. I am a member of the Law Society's Rule of Law and Lawyer Independence Advisory Committee. I'm also a lawyer and I teach at UBC's Allard School of Law and Thompson Rivers University's Faculty of Law. Today we are welcoming BC Supreme Court Justice David Crossin to talk about the role of judges and the rule of law. Justice Crossin was appointed to the bench in 2017. Prior to becoming a judge, he was a partner with Sugden McFee & Roos LLP. His work focused on criminal law as well as civil and commercial litigation and administrative law. He is also a former president of the Law Society of BC and was a bencher of the Law Society from 2010 to 2016. Welcome Mister Justice Crossin.

David Crossin:

Nice to see you Jon.

Jon Festinger:

Pleasure to be here with you and the one thing that we didn't mention in the introduction is that you were a big part of and chaired the Rule of Law and Independence of Lawyers Subcommittee when you were a bencher of the Law Society and that's where we overlap the most.

David Crossin:

Well, that's right and I'm very happy to see that you and many of your colleagues here are carrying that on and, as I understand it, doing a fantastic job.

Jon Festinger:

Well, we're trying to reach out, which was a vision that I hope you don’t mind me attributing to you and Leon Getz and others so big shoes for us to fill but hopefully we're doing what we can. Let's start, because of where you sit in reality and metaphorically, let's start with the obvious big question; what role do judges play in our society and how should we, whether we're lawyers or member of the public, understand the role of judges?

David Crossin:

Well, good question, not a simple question. The role of judges varies. I think broadly speaking, in terms of the theme of the discussion today in terms of the rule of law, I think if you talk about the role of the judge, you have to firstly talk about the courts. And it's the courts that are the receptacle for our citizenry, for our individuals, for companies, for governments, and that's where they go mostly to air their disputes, to have their disputes resolved, to be decided in accordance with the laws of the land, which, as you know, is our rule of law and leading, hopefully, to a result, probably or often not the result that either one side or the other wants but a just result. And our courts exist for that purpose and I view judges as serving the courts. They are a servant of the courts, they play a role in the courts as do the lawyers but it is not a judge's courtroom, it is not my courtroom, it's the public courtroom, I am there to serve the public interest and to hopefully ensure, as best I can, that the public gets access to those courts.

Jon Festinger:

One of the things that we want to talk about is judicial independence, and I'm going to contrast that a little bit to a different kind of independence that I hear about a lot because I take part in the academy and academic independence is rather a different thing and it's talked about a lot but you sort of honed in on you as a servant of the courts and so judicial independence in that sense being very tied to the independence of the courts whereas when we think of academic independence, it's very much tied to the individual academic, you know the freedom to teach and do what you want. It's not that way for judges. The independence is tied to the institution not to the individual so I wonder if you can sort of share with us your view of judicial independence, its importance and how to define it.

David Crossin:

Fair enough. So I should have said then perhaps the judge serves the courts and the courts are served by an independent judiciary and that of course is one of the cornerstones of our justice system. And independence, from my perspective, really means or at least is connected to, is tethered to impartiality and that's I think critical to independence. That is the public has to have utter confidence, absolute confidence, steadfast confidence that judges are impartial and a judiciary free of influence, real or perceived, and it is that independence that provides the condition for impartiality and I say and everyone agrees, it is critical to maintain the public trust, that they know when they come to court separate and apart from all of the difficulties that may present to them and all the hardship, whatever the case might be and stress and strains of that, that the judge is going to apply the law in an impartial manner. And that's how I view it. I see independence in a sense as a means to an end. The public must trust judges and trust they will apply the law and preserve its equal application.

Jon Festinger:

And impartiality, if I might, is really the prerequisite to fairness and fairness is in a sense the bridge to the rule of law itself. So I, if you can kind of square that circle as you've mostly done already, that might be fun.

David Crossin:

Well, let me, let me say this. Judges are expected to protect everything we hold dear in a society: individual liberty, freedom, protection of one's property, protection of privacy, protection of your dignity as a human being, and as well, in my view, really serve as the last bastion between the citizenry and an overbearing or overreaching state. They guard against, and I think the public has to know this and appreciate this, the exercises of arbitrary power from the state or anyone in a position of power, public or private, and protect against those abuses. And so in order to do that, in order for the public to have trust in that, they have to know we're impartial, they have to know what the laws are, they have to know we will apply the laws in an impartial way regardless of status. And that requires and begets independence and so that's why we take it so seriously.

And to digress Jon, much like lawyers, the independence of the bar, those two pillars really hold up the rule of law in my view and if they are undermined, it undermines really our democratic institutions and I don’t think I overstate that if we observe what is going on in other countries in terms of lawyers, in terms of judges, Poland recently has been in the news, lawyers in Hong Kong being jailed without trial and it goes back, back, back. One of the first speeches Hitler made when he came to power was that he was going to start to replace judges that weren't making decisions about, in terms of what he wanted done. And people know that and so I don’t think you can overstate the importance of ensuring independent actors in our justice system and in our courtrooms from a public interest point of view.

Jon Festinger:

The thing that you said in particular that really twigged me as you were, you were going through kind of these two aspects that would form part of any decision in the way you were speaking. There's the law and then there are a whole set of values that you enumerated including dignity and those, and sometimes the law ends up, you know the letter of the law can end up in conflict with certain values and it does seem that it's a responsibility not just, not just of judges but of lawyers as well to help that dialectic along and to mediate the dialogue between the law and the values and inform what we call the rule of law in that way because otherwise we end up in a situation that you know is oft discussed not rule of law but simply rule by law, a very narrow, much less value laden world. A

nd so it must be interesting for you, and challenging, to look out across the world, look out at the United States over the last number of years, look out at Poland as you mentioned and other countries, and think about in this kind of changing, polarized world, what Canadian justice can be and should be and how you serve it best. Do you think about that a lot?

David Crossin:

I think about it all the time. I thought about it all the time as a lawyer. Of course the roles are different. The lawyer is advocating positions and the judge is attempting to find the right answer. And so frankly I think about it more from a practical point of view now that I'm a judge. But what you said Jon is simply you know John Locke, wherever law ends tyranny begins, and that notion has been with us for centuries. And the values that we must bring to bear that I mentioned, we have been helped along in that regard by the introduction of the Charter in the early eighties and before the eighties and I practiced in the early eighties so I'm much older than you Jon, I don’t even know if you were born in the early eighties. But we recognize those values and sometimes it was a bit of an uphill fight as a lawyer to instill those values in some courts and some trials but over the last decades, the fact of the matter is the Supreme Court of Canada has been quite clear that we must look at the common law and evolve with the common law in accordance with those Charter values.

And so it's an easier, it's an easier push now because we really have our marching orders and there is no debate about the values we have to bring to the public and to ensure that those values are properly looked at and looked after in a courtroom. And you know you mention the United States, and of course I have to be a little cautious here, but I think what I have taken away from observations over the last three or four years, if I could say it that way, is when you have powerful government actors tending to undermine confidence in the judiciary, perhaps appearing to want to only appoint judges that are loyal to the government of the day, it is a creeping vision of arbitrary power and what it did for me, the chilling effect it had on me, is to suddenly realize, and it was sudden, how fragile our democratic institutions really are and how perhaps we ought not to take for granted the eternal strength of the rule of law in this country and how easily it might be undermined and how we have to be vigilant.

Jon Festinger:

You know, it does seem to me that the first two areas that any government power tries to neutralize when they are building their own agenda, judges and lawyers as one group, and the media, the press, as another group. We've talked to others on this subject, notably Irwin Cotler, who was a guest recently on this podcast. The pattern is not that original and it's an old playbook and it keeps on getting played out and it's easy to recognize you know not entirely easy, more difficult to fight than it should be. You know it's particularly poignant that you know your insight is how fragile this is and how we all have to fight, judges, lawyers, the public, the media, every day to maintain the values of democracy because they're way more easily threatened than we thought they were.

David Crossin:

Yes, it's just not a theoretical endeavor. It is a real endeavor and this goes back, we were talking to Shakespeare, Dick the butcher, Henry VI, if tyranny is to take hold, what is the first thing you do? You kill the lawyers. And you could, you know you could just have easily have said kill the judges. It is not, as you say, it is not a new playbook, it is an old playbook. The, Erskine, the great lawyer, English barrister, arbitrary power is seldom introduced into any country all at once; it must be by slow degrees less the people see it approach, and the barriers and the fences of the people's liberty must be plucked up one by one and plausible pretenses must be found removing one after another, and this is a phrase I, I always remember from Erskine of course, those sentries who are posted by the constitution of a free country.

And judges are one of those sentries and frankly, candidly, it appears to me the state forces in Poland are plucking those sentries and replacing them as Dick the butcher did in Shakespeare's time and as is happening in other places in the world, the great tyrannies of our world, Pol Pot did it in Cambodia, and we are safe and sound and far removed from any prospect of that occurring in Canada. Do we say that? I don’t think we ever say that, we hope that, we strive for that, we guard against it and encourage it but as I say I don’t think we should ever assume that it is not something that we should protect at all costs and be always alive to maintaining.

Jon Festinger:

Lawyers, we can be good sentries, we can be out there and we can speak in the public square. We can urge certain values and certain kinds of openness and access and transparency to hold forces that are contrary to those values, that are anti-democratic in check. Ultimately, the decisions, if the system works well, will come to the courts.

The courts partially, due to self-definition, partially because the role is tied to an entire system, the courts can't simply fight back and issue a press release or give an interview on the front pages saying this is regressive. The courts and judges have to speak in certain rigorously set out and well thought and very traditional ways. How have you coped with the change from being a lawyer who could be on the front pages of the newspapers, or at least the CBA Journal for example, to being a judge for whom you know even speaking on this podcast is no doubt something that you had to think hard about and talk to others about.

David Crossin:

There's no doubt about that. A colleague of mine, who shall go nameless, offered the view that the difference between being a lawyer and a judge is that as a judge there's no applause and I thought that was slightly cynical but true. That's not your role. Your role is not to speak out frankly. Things like this can occur, broad topics concerning values, but again, striving to maintain independence and impartiality, one has to take care in terms of what you say in a public way to ensure that when people come into your courtroom, they are going to get a fair shake and you can't spend a lot of time publicly making your views known on one thing or another because you may have to render a decision concerning one thing or another. You never know what's going to come before you and so you have to be careful about that because you don’t want to give people the impression that you've, you have set views about one thing or another.

Jon Festinger:

And I don’t want to make this too light but you know where else there's no applause, there's no applause for a great hockey referee. A great hockey referee is in control of the game, the game gets played well and they're not even noticeable.

David Crossin:

Let's say the same with a baseball umpire, right?

Jon Festinger:

And same with a baseball umpire. And where umpires and referees attract too much attention to themselves, there's usually a lot of dust and disagreement that follow along with bias. So this notion of there being no applause works when everything is working well.  The challenge is when things get a little off the rails and I remember you know Ruth Bader Ginsburg, for example, criticizing Donald Trump as President of the United States about two, three years ago, and having to apologize and retract or contextualize her statement. You know that, where things start going sideways is where I think the job becomes particularly difficult especially if that isn't originating from the courts, it's not the courts that are making it go sideways, it's outside political or other pressures.

David Crossin:

Fair enough and of course there is something called free speech in this country and people are entitled to take a view and voice a view in terms of what judges do and what judges say and decisions that come out and that's just part of the job.  But you'll notice people, politicians for instance, we do not have a difficulty here with politicians standing up and making ad hominen or personal attacks on judges and about decisions. They will voice the fact that they might be disappointed in the decision et cetera, but they're very respectful in that way and it, and it's a two way street and I think we have to be respectful as judges of the politics of the day.

We are no longer in a position as we were as lawyers to pound the table and make our voices loud advocating certain values, flying to Hong Kong in support of an 82-year-old lawyer that was jailed because he was at a protest. Judges have to apply those values in a fair way given the facts and circumstances of a particular case that comes in front of them. And so it is a different role, it's a different engagement with the public, with public issues, with the public forum, but that's, that's just fine. It's a fantastic job and it's a different job and so be it.

Jon Festinger:

So let's talk about that engagement with the public forum; during the pandemic, things have changed a bit because of Zoom, because of technology, because of the, the nature of what the world has gone through in the last year in keeping ourselves and each other safe, the courts have gone online in unprecedented ways. For those who want to see the open courts at work, the definition of openness has changed. It used to be you had to come into the courtroom and there are public galleries and you could watch virtually any trial, very rare trials that were not open to the public, but never before open through technology. And they have been much more so in the past year where we've had virtual galleries; how do you see these experiments possibly continuing or changing when we return to normal as we all hope we will or some new version of normal?

David Crossin:

 Our Chief Justice and our Associate Chief Justice and the Chief Justices across the country have wrestled with this and in my view done an amazing job adjusting to something that certainly wasn't on their job description when they took on the responsibilities and it is an experiment that I think in many ways is enlightening and has perhaps liberated the justice system in a way to think about accessing justice and dispensing justice, if I could say it that way, in different ways.

Criminal trials are in person, they look the same as they did before. Some criminal trials are not that way. A lot of the non-criminal work, for instance family work and civil work and that kind of thing, civil litigation, are done by MS Teams, Zoom or just over the phone. The judge is on a phone, lawyers are on the phone, a lot of applications that, where there's no witnesses or anything in the room, it's just arguments about the law are over the phone.

You know I'll give you two extremes, on the, on the one extreme does it advance the decorum and solemnity of the courtroom to have the lawyers sitting in their bedrooms on a computer making the legal submissions or on the phone? On the other hand, many people find it arduous and difficult to just get downtown and navigate a courtroom and get into the courtroom with their material if you know they're unrepresented. And to be able to do that over the phone from their home, for instance, on a telephone, I think is a very good thing if, from the perspective of access to justice.

So I don’t know what the future will hold. I think that certainly it is realistic to think that there could be a lot of court time spent on the telephone or on Zoom or on MS Teams where otherwise before the pandemic you wouldn't have seen that. I think a lot of lawyers think it's an excellent idea. A lot of lawyers do not. A lot of judges think it's an excellent idea. A lot of judges do not. So as usual, I think there'll be some middle ground stacked out but I do think you'll see more because I just do think that suddenly some of this makes sense from an efficiency point of view, from a cost point of view, from an access point of view. It always has to be tempered, though, with the foundational issue which is people have to feel that if they are involved in the justice system, involved in a courtroom whether virtual or otherwise, being in front of a judge, that they have had a fair hearing. And so we must take care that whatever efficiencies we put in place etcetera that we maintain a sense that people walk away thinking they've had a fair hearing. And that is something we must always think very carefully about.

Jon Festinger:

Well that is without a doubt the right metric and I guess you know just from my perspective, and I think from what you said, it's not simply a binary proposition, it's not a hundred percent zero, it may be appropriate for some things, may even be better for some things, but that doesn't mean that it's the right thing for every part of the process and there may be certain parts of the process that absolutely have to be done the way they've always been done so I suspect that's what we're gonna find out. Which leaves us with kind of one last part of all this, and that's the human part of this equation that judges embody and I would say lawyers embody as well. And you know one of my areas of interest and research and teaching is obviously about technology and law and the role of artificial intelligence and all of those you know sort of impacts and my very simple conclusion, which I've stated many times is it's gonna be a very long time, we may have AI tools as lawyers and judges and even really great ones, but it's gonna be a very, very long time before we have an effective AI lawyer and a much longer time before we have an effective AI judge.

David Crossin:

Oh, you're talking to the wrong guy about that!

Jon Festinger:

So on that note, whether you would, you agree with it or not, what are, what from your perspective, are the qualities of a good judge? If we were ever to create a robot judge, if we ever could, what would the soul, if I could put it that way, and the heart of that judge be?

David Crossin:

Well that's the issue, I'm not sure you could create a soul but many qualities must be present in order for a judge to be effective and do his duties or her duties properly. But maybe I could answer that with this reminisce and recollection; my mentor was a lawyer named Tom Braidwood and his mentor was a lawyer named Angelo Branca and it may be that many of the listeners won't know who that is but Angelo Branca in the 40s and 50s was the preeminent criminal defense lawyer in this province and books have been written about him. And he became a judge in the 60s and he was Supreme Court judge, he went to the Court of Appeal, and you have to retire when you're 75 and when he turned 75, there was a retirement sitting in the Court of Appeal where the judges sit, the public can come, there's some speeches and it's very nice.

And that retirement sitting happened to be within a day or so that I was called to the bar and my mentor, Braidwood, said you have to go and listen to this and so I went and it was packed. And I sat at the back, back of the courtroom, stood actually, and I heard all these speeches about the great Branca, his ferocity in the courtroom, his skills as a cross-examiner, his intuitive sense in his arguments. And finally, the then Chief Justice spoke and he said this, simply, Branca is great because of his complete integrity and perhaps more importantly the warmth of his heart. I've never forgotten those words and I think if you had to pick qualities that a judge must have, I think a lawyer must have, it's complete integrity and the warm heart in the sense that you must bring empathy and compassion to your tasks and so that's my answer to you.

Jon Festinger:

That's a very human answer with very human qualities being accentuated and I'll say it this way without hopefully, without being inappropriate but you do represent those qualities Mister Justice Crossin so that, that lineage that you speak of is alive in you and we thank you very much for, for being part of this discussion for the benefit of our audience and spending time with us and being as open and clear and human as you always are so thank you.

David Crossin:

Thanks Jon, it was my pleasure, you're very kind.

Jon Festinger:

Thanks for listening. Justice Crossin shared with us the role of judges and the courts in protecting, and I quote, everything we hold dear in a free and democratic society. He touched on how important it is for judges to remain impartial and to ensure fairness in trials. He warned against governments overseas who continue to creep towards exercising arbitrary power when they attempt to undermine confidence in the judiciary or when they seek to control judges. We also talked about how the pandemic and new technologies have opened up access to the courts and whether those changes could continue post-pandemic. Lastly, Mister Justice Crossin highlighted qualities that a good judge should have, complete integrity and a warm heart that brings empathy and compassion to the task at hand.

If you want to learn more about the rule of law, visit the Law Society's website at lawsociety.bc.ca. If you liked today's episode, please subscribe and leave us a review wherever you get your podcasts. We've also set up an email to receive your feedback. If you have suggestions or comments, send us an email at podcast@lsbc.org. Vinnie Yuen is our producer today. I'm your host Jon Festinger signing off.