By: Alice Woolley
PDF Version: Judgmental Judges
Case Commented On: Abdulaali v Salih, 2017 ONSC 1609 (CanLII)
Introduction
Judges exercise considerable power, and discharge a crucial public function. They identify, interpret and even create the rules that govern us. They decide what happened. And they determine the legal consequences of what happened.
But judges also exercise a defined and limited public function, and in doing so they are human, not superhuman. Judges determine and apply the law, but they do not decide questions of morality outside the law; they do not decide what it means to be a good person except as the law defines goodness. They do not – except in the specific ways the law asks them to – decide matters of public policy. Nor do they have any particular qualification to do those things. Judges know what happened only through the evidence in their courtroom. Even though some judges may be men or women of moral wisdom, there is no particular correlation between having that wisdom and holding judicial office. Judges have no democratic mandate to decide questions of public policy.
Yet obviously the lines between these things can be hard to draw. The law deals with – and decides – questions of morality. It deals with – and decides – questions of public policy. Deciding a case can require a judge to make a moral or policy determination. And even when it doesn’t, sometimes only judges can see problems of policy or morality clearly, and may be uniquely positioned to raise awareness of problems that society ought to address.
So at what point, if any, does a judge’s pronouncements on matters of morality or policy exceed his office? Does a judge have an ethical obligation to try and restrain his decision to the legal matter before him, addressing questions of morality or policy only as necessary for adjudicating the case? And can a judge commit misconduct if he exceeds his mandate in that respect?
These questions were raised for me by a March 13, 2017 written endorsement of a consent order by Justice Alex Pazaratz, in which he castigated the parties and Legal Aid Ontario for “squandering scarce judicial and community resources” (at para 26).
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