TRU/Law3020/GroupT

= Group T: R. v RDS  =

Michael Truong

Laura Tsang

Donya Vahidi

Tania Vig

= R. v. RDS, [1997] 3 S.C.R. 484 - A Case about the Importance of Judicial Impartiality  =

Facts
Constable Stienburg, a white police officer, arrested R.D.S., a black 15 year old who interfered with arrest of another youth, N.R., and was subsequently charged with assault on a peace officer. The Constable and the accused were the only witnesses at trial and their accounts differed in material respects. Constable Stienburg testified that R.D.S. ran into his legs, and while still on the bicycle, yelled at him and pushed him. He then arrested R.D.S. for interfering with the arrest. On the other hand, R.D.S testified that a friend told him that his cousin N.R. had been arrested. R.D.S. then approached the crowd and stopped his bike when he saw N.R. and the officer. R.D.S. then tried to talk to N.R. to ask him what had happened and to find out if he should tell N.R.’s mother. Constable Stienburg then told R.D.S.: “Shut up, shut up, or you’ll be under arrest too”. When R.D.S. continued to ask N.R. if he should call his mother, Constable Stienburg arrested R.D.S. and put him in a choke hold.

At trial, Judge Sparks weighed the evidence and determined that an acquittal was in order. While delivering oral reasons, she made the following remark in response to a question from the Crown: "“I am not saying that the Constable has misled the court, although police officers have been known to do that in the past . I am not saying that the officer overreacted, but certainly police officers do overreact, particularly when they are dealing with non-white groups. That to me indicates a state of mind right there that is questionable. I believe that probably the situation in this particular case is the case of a young police officer who overreacted. I do accept the evidence of [R.D.S.] that he was told to shut up or he would be under arrest. It seems to be in keeping with the prevalent attitude of the day . At any rate, based upon my comments and based upon all the evidence before the court I have no other choice but to acquit .” [emphasis added]" The Crown challenged the trial judge's finding on the basis that there was a reasonable apprehension of bias.

Judicial Decisions
R v. RDS revolves around the idea of judicial impartiality when a judge comes to a decision. In this case, while there were three main judgments (a majority, a concurring minority, and a dissent) - it is important to note that all three judgments found that judicial impartiality or neutrality in decision making is an extremely important component of the judge's responsibility. The reason there were three different judgements was due to different opinions regarding whether or not the Judge was impartial or not. The different judgments all had one thing in common however, which was that all judges should be neutral and impartial.

La Forest, L'Heureux-Dube, Gonthier and McLachlin wrote for the majority, and their discussion revolved around the idea that while judges can never be fully neutral in being purely objective, but they must still strive for impartiality. While the reasonable objective person understands the "impossibility" of judicial neutrality, there remains a demand for judicial impartiality. This recognition that judicial neutrality is difficult to achieve is used to justify Judge Spark's comments when she states that police officers have been known to target minority youth groups, and have been known to embellish fact scenarios in the past. The majority simply calls this awareness of context of the surroundings, and that the oral statements should be read in their entirety. They held that Judge Sparks viewed the case with an open mind, and because she was familiar with the context of the case she made well informed statements which implied recognition.

Corey and Iacobucci concurred, but for different reasons. They explained that the comments in fact were very close to crossing the line of judicial impartiality. They concluded that reasonable apprehension of bias has a very high standard, and that while Judge Spark's comments were troubling, they did not meet this high threshold.

Lamer, Sopinka, and Major dissented on the basis that the trial lacked fairness due to it not being free of bias. They disagreed with the majority; insisting that the judge did not make the decisions based on evidence, and that her comments fell into a stereotypical category.

= Natural Law Theory – Saint Thomas Aquinas =

The ideas of judicial impartiality and its importance in the judicial system can be seen through St. Thomas Aquinas's natural law theory, which emphasizes that the law is moral and thus it should be obeyed. St. Thomas Aquinas’s natural law theory explains law to be derived from a higher, non-human source and that the task of human law is to discover this source of natural law and ensure its principles are put into effect. While the idea that law is derived from a higher, divine, non-human source does not apply to the case at hand (R v RDS), it is nevertheless important to view how Natural Law theory, specifically the 4 tenets of the theory, can be used to describe the approaches in legal reasoning taken by the majority and dissent in this case.

Whether or not judicial impartiality can be viewed as “moral” is not at issue here, since both the majority and the dissent stress the importance of this concept in the Canadian legal system. According to Aquinas, a valid law has four main components. The first of these is that the law must be directed towards the common good. This means that the order imposed by law is a necessary element of the common good and that human happiness is only possible in a stable society or community where the law facilitates this stability and thus happiness.

The majority in the case at hand would argue that the common good element emerges through the maintenance of judicial impartiality as well as being aware of the importance of considering the surrounding circumstances in a case. The idea of judges using their past experiences will contribute to the common good because it gives judges a sense of awareness and education, allowing them to apply the law in an adaptive manner which will reflect common interests by avoiding stereotypical behavior. For example, if judges were not able to take into account their social context or their past experiences and wealth of knowledge, then they could only rely on evidence for their judicial reasoning. This reliance on strict evidence may not allow judges to engage in an analysis that will yield the most equitable outcome, and some group in society will be negatively impacted, which will likely be marginalized or minority groups.

Judge Sparks, the Trial Judge in R v RDS, ruled for the accused after hearing the testimonies of the accused and the arresting police officer. After she ruled for the accused, she said the following: "'I believe that probably the situation in this particular case is the case of a young police officer who overreacted. And I do accept the evidence of Mr. S. that he was told to shut up or he would be under arrest. That seems to be in keeping with the prevalent attitude of the day.'" The majority in the Supreme Court of Canada held that these comments were acceptable because a reasonable person would acknowledge that judges strive for impartiality and fairness within the specific context that they are ruling in. Being aware of the prevalent attitude of the day is important to the majority, which should be given weight in the reasoning, which St. Thomas Aquinas would say would contribute to the common good. The dissenting judges take a different view on the importance of a judge's past life experiences. They would argue that while it is important, it should never be substituted for evidence. The common good, they would contend, will only be achieved if judges strictly consider evidence without the influence of their past experiences.

The next component of a valid law, as discussed by Aquinas, is the idea of the law following practical reason. This means that the order imposed by law is directed at achieving happiness; if we act in accordance with that “reason", then we will be happy. In allowing judges to take a more liberal approach toward interpreting the evidence (i.e. considering context and past experiences), the majority would argue that this is a practical reason directed at achieving happiness. If we understand the idea that judicial neutrality is impossible yet demand impartiality, this would be beneficial for the happiness of all individuals. Aquinas would agree with the majority in that their approach of practical reasoning is that which the reasonable person would accept. The dissent may try and argue that there is no place for context and social surroundings because each law has a purpose and it should be followed strictly to achieve balance and stability in society. Aquinas may see this as being similar to his idea of laws being “teleological”, and on its face this may seem to align with the idea that the specific laws have a purpose and should be followed strictly because they are practical reason directed to the common good. However, as mentioned previously, it is difficult to see what common good would come out of taking such a narrow and strict approach towards interpreting laws.

The third and fourth components of a valid law go hand in hand: the law must be made by a valid lawmaker, and the law should be promulgated so that individuals can easily obey them.

Aquinas would agree with both the majority and the dissent in that the Charter contains certain provisions to maintain the impartiality of the judicial system. For example, the idea of judicial impartiality is entrenched in ss.7 and 11(d) of the Charter. Section 7 of the Canadian Charter of Rights and Freedoms states: "Everyone has the right to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. Section 11 (d) states that every individual has the right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal". These two provisions are in the Charter and were written by elected officials, therefore they fulfill the requirements of being made by a valid lawmaker and being promulgated.

Moreover, the majority relies on the Charter’s equality provisions in section 15, which includes the fundamental principles of equality, stating that it is difficult to grasp the importance of this provision without being aware of the history of discrimination faced by minorities and disadvantaged groups in Canada. Aquinas would agree with the majority and say that this written law (the Charter) has been promulgated so that individuals can obey the law, since people cannot obey unknown laws. Additionally, “practical reason” should include abiding by these written laws with an awareness of the history of discrimination in the given society, as this will lead to the maintenance of order in a given society. It is difficult to understand how a judge will follow section 15 of the Charter and maintain the common good without taking into account that such minorities exist and are marginalized in society.

= Legal Positivism =

John Austin
While the natural law theory emphasizes that law is teleological in nature, and cannot be understood without its purpose, John Austin and other legal positivists would disagree. The latter group would argue that moral content is not actually a necessary purpose of law, and in fact there is an obligation to follow all law, regardless of whether or not it was moral. Austin calls this the separation thesis: where law should be seen as separate from morality. Austin and Aquinas both agree that there is a moral obligation to follow the law. However, these two theorists differ; Aquinas would argue that we obey the law because law is moral, whereas Austin would argue that we obey the law because it is the standard of justice, even if it is immoral.

According to Austin there are 3 requirements for a valid law, as opposed to the 4 tenets described above by Aquinas. The first requirement is that there should be a command. The command requirement is “an expression or intimation of a wish or signification of desire”. The second requirement is that this command is issued by a sovereign (i.e. a superior) to a subordinate (i.e. an inferior). The third requirement is this command is backed by a sanction. Austin would find that the legislature is the sovereign and the Charter was written by the legislature, albeit previous governments. This would ultimately be valid law and we would be inclined to conduct ourselves in accordance with the promulgated Charter provisions of equality, freedom, and having a fair trial.

Legal positivists would agree with the majority that these Charter provisions should be followed because Austin would argue that the legislature is in fact the Sovereign. However, it is noteworthy that Austin’s theory would not be able to account for the fact that the legislature, being the sovereign and the creator of the law (i.e. the Charter), is still subject to the Charter. In Canadian society, politicians are subject to the Charter and the law yet Austin states that a sovereign cannot issue a command to itself and yet it is bound and obligated to comply with the law that it has created in the Charter. This aspect of our Canadian legal system is insufficiently explainable by Austin.

These 3 requirements are very different from the 4 tenets of the natural law theory, and they yield very different understandings. For example, where natural law theory explains that laws are teleological in nature and are derived at achieving a common good, there is no discussion of the teleological nature of law in legal positivism. The positivists would align with the dissent in that there is a command enforced by the Charter and the Criminal Code. The dissent looks strictly at evidence, and does not take into account the “common good objective”; it would be more willing to follow the legislature (i.e. sovereign).

Austin would agree with the dissent in that the judges should be given limited authority to exercise discretion. Since legislation is centric, judges should not be incorporating their personal ideas or their experiences in their legal reasoning. They should be strictly following legislation and only using evidence to aid them in their interpretations. Austin would probably agree with the dissent in that Judge Sparks (the Trial Judge) went too far with her comments and raised a reasonable apprehension of bias which is inappropriate in the court room. Not surprisingly, Austin would agree more with the dissent, while Aquinas’s ideas on natural law theory and the teleological nature of achieving a common good aligns more closely with the majority since these two theories differ in their interpretation of valid laws.

HLA Hart
HLA Hart is another positivist, and he discusses the rule of recognition. This rule states that laws must be “recognized” by the officials in the legal system, that is, they must consistently apply those criteria and believe that they ought to apply them. Essentially, the officials must genuinely believe themselves to be obligated to apply them. In this case all judges agreed that judicial impartiality is needed for a fair and efficient justice system. Judicial impartiality is embedded in the Charter under s. 7 and 11, and it is integral to protect the administration of justice. HLA Hart would call the Charter, a human artifact, which is not dependent on moral content for its validity. This relates to the given case at hand because Hart would call the test for reasonable apprehension of bias a “secondary rule” as per the rule of recognition which he describes. The primary rules would be similar to the commands which are discussed by Austin. The Charter provisions stated by the majority in this case (section 7, 11(d), and 15) are essential for social existence and indicate the presence of a system for regulating behavior in society. It is the discretion of the judges and the tests which judges apply which mirror the “secondary rules” which are discussed by Hart. Secondary rules are rules by which we can change the rules, and adjudicate disputes about the rules so that we can figure out what the rules are. The very nature of this case is reflective of secondary rules. For example, Judge Sparks made a ruling which was appealed by the Crown. The Crown appealed because they thought there was a reasonable apprehension of bias, and eventually the whole case was appealed to the Supreme Court of Canada. This system of appeal, and using tests such as the reasonable apprehension of bias test can be seen as secondary rules which are used to determine what rule of law should be followed.

Bentham
Bentham is another Legal Positivist, and he believes that law is crafted on the basis of utilitarianism. If all judges are impartial, there is a level of consistency and people know what to expect going into court. This would be a utilitarian outcome. If this process is allowed or facilitated by the incorporation of social awareness and context, then Bentham would agree that this would ultimately lead to the greatest good for the greatest number of people.

All the judges in this case agree that judicial impartiality is important, and the difference between the judgments were that the majority believed that the judge was impartial while the dissent disagreed. Since Bentham is an advocate of consistency and predictability, the maximization of utility is important here. As a result, Bentham would agree with the majority in that promoting fairness through judicial impartiality must be achieved because it would contribute to the greatest good for the greatest number of people and this would be utilitarian.

This utilitarianism which is discussed by Bentham is similar to the common good approach by Saint Thomas Aquinas, and thus it is no coincidence that both of these legal theorists would agree with the majority. The difference lies in the fact that Aquinas uses morality as the basis of these laws whereas Bentham views the law as a man-made artifact, separate from morality.

Raz
Raz's "service conception" of legal authority claims that the law should actually perform a service for its subjects, helping them act in a way that can further social and individual good, more than they would be able to without the intervention of authorities. If the courts take the approach of the majority, by taking into account the history of discrimination and social context, then they are doing a service for Canadian citizens. By ignoring such factors as the dissent would, no such service is being created. Raz would argue that the approach taken by the majority can be seen as a service to individuals of legal authority, and this will actually allow individuals to feel like they are living in a free and democratic society where they are treated equally. According to Raz, this may further individual good, which society benefits from. Individuals will be more likely to follow the law and respect the law if they know that they are being treated equally as per s.15 of the Charter, and society as a whole will have more faith in the justice system if it is ensured that individuals maintain their right to a fair and impartial trial. The law will be validated thus by this service of equality and impartiality which is conferred upon individuals.

= Separation Thesis - HLA Hart =

The traditional positivist view states that a law is only valid if it encompasses 3 elements (i.e. a command issued by the sovereign to subordinates and backed by sanctions), and this legal perspective fails to adequately explain the legal dilemma that arose in R v. RDS.

Hart’s separation thesis builds on the positivist view that the law and morality are separate systems and because of this, it provides a more comprehensive understanding of our case. R v. RDS ultimately hinges on how the SCC Justices determine whether there was a reasonable apprehension of bias in the trial judge’s decision.

A reasonable apprehension of bias underscores an essential facet of the legal system: judicial impartiality. As well, sections 96-101 of Constitution Act as well as section 7 and 11(d) of the Charter directly and indirectly strengthen the concept of judicial impartiality as a “law”. While Austin would assert that this judicial impartiality does not fulfill the requisite elements to constitute a valid law, Hart would argue that these “essential characteristics” are not necessary and do not have to exist in every rule. Hart would further add that having a constitution and having the sovereign bound to it still fits within the positivist world view, especially if we consider the law and morality as two distinct systems.

R v. RDS does not involve a typical case so that it does not fall into Hart’s idea of the “settled core of meaning”. Consequently, R v. RDS is a penumbra case. Ultimately, statutes and precedent express legal rules in general terms and this specific fact scenario falls outside of the core and represents a “hard case” in the penumbra. Hence, it falls on the SCC Justices to decide whether Judge Spark’s comments met the threshold for a reasonable apprehension of bias. Since the legal rules are expressed in general terms, they do not present an easy task for the SCC. This difficulty is similar to that which the SCC faced in R v Sharpe, where they had to measure the harm on children via child pornography. Ultimately, the judges have to use their discretion to fill in this “gap” and accordingly, they are drawing on Hart’s terms of the rule-governed practice, which are the principles or ideas that underlie the legal system as a whole.

Holmes, would disagree with Hart, stating that since the apprehension of bias test is “incomplete” (i.e. that it does not provide answers for a penumbral case such as R v. RDS), the judges should decide this case with reference to social aims. Bentham would differ from Hart to his application in this case. Bentham would say that in assessing whether there is a reasonable apprehension of bias, and thus whether judicial impartiality exists, the law should be decided based on utilitarianism. He would say that the judges should not merely draw on Hart’s terms of the rule-governed practice to decide these “penumbra” cases and fill the “gap” as these methods may not necessarily lead to the greatest good for the greatest number of people. On the other hand, Aquinas would argue that the “penumbra” and these terms of rule-governed practice are an illusion since the law and morality are one and the same.

With reference to R v. RDS, the majority, the concurring, and the dissent all agree that section 11(d) of the Charter is important. They agree that this right needs to be protected for the maintenance of judicial impartiality. These Charter rights can be thought of as terms of the rule-governed practice and they are not the same as morality; they are the principals which underlie our entire legal system. Where the judges ultimately disagree is on whether there was a reasonable apprehension of bias in Judge Sparks’ comments.

Hart would agree with the majority in this case. The majority explains that it is impossible or unreasonable to expect judicial neutrality because judges must be aware of their social context and draw from past experiences. Despite this, we must nevertheless demand judicial impartiality. This coincides with Hart’s terms of rule-governed practice as the principles of justice would find that judges must be impartial and objective. Hart would also agree with the majority when they state that one overriding principle that arises from these cases is that the trial judge’s impugned comments must not be looked at in isolation, but rather they should be looked at in light of the whole proceeding. This is parallel to Hart’s idea of penumbra cases and how the rule governed practice aids judges in interpreting these cases by drawing principles from the legal system as a whole.

While penumbra cases and filling of the gaps through terms of the rule-governed practice allow judges to apply the law in evolving societal circumstances as per Hart, Aquinas finds that in doing so, we are essentially filling in the gap with morality since law and morality are one and the same. As a result, this idea of filling in the gaps with morality would not allow as much interpretation or adaptation of the law within an evolving society. Thus, the law would remain much more rigid in time, as opposed to a more fluid evolution of the common law in new directions as discussed by Hart.

= Law and Morality - Lon Fuller =

Fuller criticizes Hart and the separation thesis because it does not adequately explain the conflict between one’s duty to obey the law and one’s moral duty not to obey immoral laws. How is an individual to decide when his legal duty conflicts with his moral duty? Fuller provides what he believes to be the answer to this flaw.

Fuller argues that Hart’s "rule of recognition" is ultimately grounded in external morality. He would argue that when judges are drawing on the terms of the rule-governed practice to decide penumbra cases, they are in fact drawing on external morality. Whereas Hart would argue that fairness and neutrality are terms of the rule-governed practice which the SCC can draw on to help in deciding R v. RDS, Fuller would recognize that judicial impartiality is a principle of fundamental justice that can be understood as a form of external morality. This is different from natural law theory which would view external morality as a non-human or divine law from God. However, Fuller would say that external morality is a social sense of acceptance of legal rules which are collectively held by a community because they believe it to produce good order.

In R v. RDS, the different opinions of the justices may demonstrate an inconsistency in the decision making process that Fuller would try to reconcile in his internal morality argument. Although the majority and the dissent viewed the facts of the case in different ways which led them to different conclusions about Judge Sparks' comments, what was important here was that each judge shared the same view that judicial impartiality was intrinsic to the legal system. While they all agreed on the same principle, their applications of the facts led them to different outcomes. This does not negate the fact that judicial impartiality is intrinsic to the nature of the legal system, that is, that it is coherent, rational, consistent, known, and capable of explanation.

Critical legal theorists would disagree with Fuller here, stating that the divergent views of judges are the result of their underlying political motivations. The majority and dissent differ because they are trying to drive their political views under the guise of legal reasoning.

Feminist theorists such as Catherine MacKinnon would also disagree with Fuller because she would attribute the fact that the majority and dissent differ due to their appreciation and willingness to address the patriarchal nature that is inherent in the concept of judicial impartiality. She would state that the majority took into account context because they are more cognizant of the patriarchal nature of the legal system and were seeking to ameliorate it. However, MacKinnon would say that the dissent did not consider context when they made their decision because they are trying to reinforce and perpetuate patriarchy. Context, feminists would argue, is important in elucidating the oppression that minorities and disadvantaged classes face by the privileged white man. She would argue that this is the reason why the majority and dissent came to opposing views, not because of how they viewed the facts.

Previously we discussed that this case would fall into the category of a penumbra as discussed by Hart because ultimately it falls to the judges to decide whether or not Judge Sparks was impartial in her comments and decision making. Fuller would disagree with this case as a penumbra because firstly, he does not believe in a penumbra; he argues that every case is interpreted in its context and with reference to the rule and the purpose it was meant to accomplish. Fuller would then agree with Justice Cory in his concurring opinion when he comments on the importance of perspective and social context in judicial decision making, and the presumption of judicial integrity. This idea of "no settled core meaning" which Fuller presents can be seen in the judgments of McLachlin C.J, as she write that " judges acting as finders of fact must inquire into those forces. In short, they must be aware of the context in which the alleged crime occurred. Judicial inquiry into the factual, social, and psychological context within which litigation arises is not unusual."

Fuller would argue that the judges are exercising fidelity to the law by employing the test used for determining whether or not there is a reasonable apprehension of bias. Unlike Nazi Germany where the law was applied blindly, in R v. RDS, even though each judge uses different reasoning to come to their conclusion, they are justifying the way in which they reach their conclusion so that they reach what Fuller would consider to be "good". This reinforces the fact that there is both external and internal morality at work. Although there was a majority and dissent, Fuller would not say that there is a right and wrong decision. Each decision was justifiable, but the majority won the most favour because it was applied more appropriately with respect to the social context at the time the case occurred.

= Law as a System of Rights - Dworkin =

Dworkin moves away from many positivist notions. Where Hart draws on the terms of rule-governed practice, and allows judges discretion where there are no legal rules, Dworkin rejects this and insists that law contains rules and principles. The positivist would say that where a case has no rule, judges can step in and exercise their discretion; however, Dworkin explains that there are legal principles which underlie legal rules and these principles are legally binding because they themselves are part of the law. Previously it was discussed that R v. RDS can be categorized as a penumbra case, as according to Hart, where the judges exercised their discretion on whether or not Judge Spark's comments raised an apprehension of bias. Dworkin would disagree with the judge’s discretion, saying that the underlying legal principles will provide the answer and that there is always a right answer.

All three judgments in R v. RDS agree that judicial impartiality is of utmost importance in the Canadian Legal System. They also all agree that in order to determine whether or not there is a reasonable apprehension of bias, there is a standard test which must be applied in the legal reasoning. These two aspects of the case would be classified as the legal rule. The reason this test is conducted is to be consistent with the legal principles of a free and democratic society where everyone has a right to a fair trial. Dworkin would state that these principles have been codified by section 7 and 11 (d) of the Charter. In the case at hand, Justice Cory says that the test for reasonable apprehension of bias is a test which has been adopted and applied for the last two decades, and while it has been applied differently in different contextual situations, the underlying principle has remained unchanged

Dworkin would relate this to the rights thesis and explain that rights are the product of history and morality. He would say that judicial decisions enforce existing political rights, and that rights are political because they depend on the past history and morality of their political situations. So while the test has been adopted for the last two decades, judicial decisions should be made in light of the existing politics. For example, stereotyping against race is an underlying theme in this case, and it is important to note that had this case taken place over two decades ago, the outcome of the majority may have been crucially different, even while applying the same test.

Dworkin maintains that there is only one correct decision. He would acknowledge that judges will not always come to the same conclusion and that the dissenting opinion arrived at their conclusion by weighing the principles incorrectly. In the case at hand the legal rule and test is agreed on by all judges yet, they did not yield one uniform outcome. It would be difficult to pinpoint which principles were weighted differently as it was the interpretation of Judge Sparks behavior that created disagreement between the judges.

Dworkin’s response to this might be that principles are like an underground stream, which is made up of the fundamental ideas of justice and fairness that support certain rights and duties in society. The underground stream runs parallel to legal rules, which are like a flowing river that runs over head always moving forward. Sometimes when the principles in society shift, the stream flows into the river and the legal rule is changed.

In relation to the differing opinions in the case, Dworkin might state that in the past the Canadian legal system was “color blind” in that racism was not recognized as an underlying principle of judicial fairness. Now, contemporary society acknowledges our history of slavery and racism and their consideration is incorporated into society’s conception of fairness. Dworkin would say that the majority was able to get to the right decision because they weighed the current principles correctly whereas the dissenting may be stuck in the past, possibly unaware of the changes in the social values underlying the principles and therefore resulted in a misapplication of the legal rule.

= Liberty and Paternalism =

According to Mill there is presumption in favor of liberty and any interference should be justified. The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. Even his own good is not sufficient to warrant it, as an individual is the best judge of his own interests.

Mill might say that authority is necessary to prevent anarchy and the legal system is in place to keep order in society. However, judge’s decisions have great implications on jurisprudence and how the courts are run. These effects trickle down into society and have the potential to create great harm and injustice. As a result, the judicial system can be likened to the talloned hawk, where such a system protects us, but it could simultaneously invert and rip us to shreds at any moment.

As judges are appointed by the Governer General and not through a democratic process, Mill would advise that we must be careful that their power be limited and controlled. Mill would agree that judicial impartiality and the test for reasonable apprehension of bias are necessary to file the sharp nails of the talon.

In response to Mill, Dworkin would say that paternalism is acceptable as a limitation on personal freedom or choice because it is done to benefit the person whose freedom is being restricted. For example, a judge who could decide freely without discretion could potentially end up harming themselves, or their reputation in the judicial system and therefore, the restriction on their liberty would be justified. In our case, Dworkin would find that the test for judicial impartiality is useful since it acts to determine whether judges make biased decisions. In doing so, it identifies the biased actors and prevents them from inflicting further harm upon their own reputations.

= Law and Economics =

As efficiency is the ultimate goal of all law within this theoretical perspective, law and economics theorists believe that a good law will serve to enhance efficiency, rather than hinder it. In order to reach an efficient outcome, the law must strive to maximize social wealth by facilitating transactions that are efficient. The efficient outcome that the common law seeks to achieve in R v. RDS would be the promotion of a functioning justice system that reflects the values of s.7 and s.11(d) in the Charter. This is because a justice system that properly reflects these values will provide people with the proper incentives to obey and follow laws that have been applied consistently. On the other hand, a more traditional legal theorist such as Thomas Aquinas would disagree, since natural law theorists like Aquinas posit that the law should reflect morality. However, both theories are similar in that the law is used as a means to achieve a certain outcome. While the law and economics theorists would find that law is aimed at achieving efficiency, natural law theorists would disagree with this rather turgid view as the objective of the law in their view would be to achieve the common good.

R v. RDS shows us that the means to achieving their end goal of efficiency can be found in the concept of judicial impartiality. This is because judges, as the key decision makers, become the key actors in ensuring that a just outcome is reached with regards to people involved in trial proceedings. As a result, law and economics theorists would argue that people should mobilize resources to maximize judicial impartiality (as a form of social wealth) since this would maintain an efficient and functioning justice system. In order to reach efficiency through the maximization of social wealth, the law would need to facilitate pareto superior moves. Consequently, we must examine the majority and dissenting decisions by the Supreme Court of Canada to determine which would result in a pareto superior outcome where no one will be worse off as a result. As the main distinction between the majority and dissenting decisions turned on the inclusion of social context in determining judicial impartiality, a pareto superior outcome will rely on the value that social context provides to the test for judicial impartiality. However, social context is not a concept that can be easily quantifiable since it does not provide us with any tangible properties. As a result, social context may be a difficult standard to use in determining whether its inclusion or exclusion would result in wealth maximization.

However, we can examine how each opinion might find that their decision results in a pareto superior result. The majority would likely argue that their decision, allowing for contextual knowledge to be considered by the trial judge, would be pareto superior since enabling a trial judge to better understand how an accused might react in a given situation could result in a more equitable outcome. In turn, this would make the judicial system more efficient as social wealth is maximized where judicial impartiality is properly applied. On the other hand, the dissent would argue that their decision would be pareto superior as more people would be made worse off when social context is considered. In the dissent’s view, social context could lead to judges basing their decisions on stereotypical behaviours of certain groups in lieu of concrete evidence. Such a result would lead to decreased judicial impartiality which would not produce wealth maximization. Consequently, the dissent would find that social context would actually decrease the efficiency of the judicial system by making it more unjust.

Unlike theorists before them, the law and economics perspective does not explicitly consider morality (i.e. the idea that something may be good or bad) when they determine that one law works better than another law. Rather, it is the idea that the law will promote wealth maximization that makes one law better than another. As a result, a law and economics theorist would agree with Hart that there can be unjust and immoral laws that are just as valid as any other law in the legal system.

= Feminist Theory =

Feminist theory challenges central functions and traditional values of the legal system as being understood to represent and uphold the patriarchal system that created them. In challenging these central tenets of the legal system, feminist theorists would find that their views complement those of the majority decision in R v. RDS since they both believe that neutrality of the law is impossible. However, they reach these conclusions for different reasons as the former believes that law cannot be neutral as it has been created to further the aims of the privileged white man, while the latter finds that neutrality of the law is near impossible with regards to human interaction.

On the whole, feminist theorists would agree with the majority finding that it is appropriate to consider social context since recognizing that different points of view should be taken into account would help to alleviate the strict patriarchy that was built into and have become inherent within the justice system. This view by the feminists is supported by their preference for a focus on “specific, concrete, lived experiences of women in all of their particularity and contextual detail.” As women were traditionally silent subjects of the law, the majority’s decision would open up a space for judges to understand a female point of view when coming to a decision. Critical race theorists would agree with this idea that the law should be reformed to include the perspectives of underrepresented groups in society. Both theories would find that this would help to create a better understanding of those who stand trial in the legal system, and thus result in fairer results for all.

Feminist theorists would also recognize that judicial impartiality acts as the “site and cloak of force”. While judicial impartiality is supposed to maintain fairness and neutrality in the law, feminist theorists would argue that judicial impartiality in fact perpetuates oppression of all groups other than privileged white males. On the surface, the principle of judicial impartiality appears to protect society by ensuring a fair trial; however, the patriarchy would actually apply judicial impartiality in order to come to decisions that reinforce their own views.

Feminist theorists would disagree with the dissent where they found that life experience is only useful for weighing evidence and determining credibility, but it has no value in reaching conclusions. This course of action would serve to prevent a trial judge from properly weighing all perspectives fairly before coming to a decision. This would result in a situation where people would be forced to abide by a law that the privileged white man created, regardless of the contextual differences that distinguish people from one another. As a result, feminist theorists would find that the dissent’s view would further inequality and reinforce the patriarchy.

In applying diverse feminist theories, radical feminists would argue that the whole judicial system should be dismantled since society cannot get rid of the patriarchy without attacking it at its very root. As a result, the whole body of common law that exists with us today would be rendered invalid as the evolution of the law has neglected to acknowledge the female point of view. Thus, radical feminists would not agree with the majority or minority decision in R v. RDS since it merely serves to reinforce the patriarchy as a whole.

On the other hand, Dworkin would disagree with feminist legal theory altogether because he would find that judges draw from legal rules that reflect principles of fundamental justice and fairness. Thus the patriarchy would have no place in influencing the law because these abstract principles form the basis for the evolution of law.

= Critical Legal Studies - Duncan Kennedy =

According to Kennedy and critical legal studies, there are many contradictions and inconsistencies in the law that cannot be explained through legal reasoning. Kennedy would argue that such contradictions and inconsistencies are a product of a judge’s underlying political ideology, rather the result of logic. As a result, critical legal theorists would disagree that the judges in R v. RDS properly decided the case by applying the test for determining whether there was judicial impartiality. Instead, critical legal theorists would find that the judge’s decisions actually resulted from their personal political beliefs and that their decision did not emerge due to careful legal reasoning.

It is important to recognize that the political impact on legal reasoning which critical legal theorists claim is taking place in the court room has a huge influence not only on the law, but also on future cases which may look to past decisions for precedent. This political impact will ultimately play a role in who gets what in the system. For example, the accused in a case will be subject to either an acquittal or a conviction depending on just how liberal or conservative the panel of judges may be in a given situation. Aquinas would argue that this level of inconsistency and unpredictability is troublesome as it may lead to chaos and uncertainty which would undermine achievement of the common good. This is because achieving the common good is concerned with the good of the community, as opposed to the good of a few specific individuals. As a result, when the law is based on a specific subset of differing political views, this would not produce a proper result that reaches the common good for the collective society.

The majority in R v. RDS took a very open minded and holistic approach in coming to a decision. They explain that judicial impartiality actually requires judges to be fully aware of the contextual surroundings and present stereotypes or prejudices which exist around them. While they stress that contextual awareness and experience should not be used in lieu of evidence, they concede that such social context should have some weight in their judicial reasoning, and that it in fact helps them to be more impartial. However, critical legal theorists would likely find that the majority decision was a product of liberal ideology (as understood within the Canadian political spectrum) as the majority was more willing to take into account diverse contextual factors. This ideological basis would lead the majority to be more receptive and open to change in the common law and we will see that their approach was far less rigid than the dissent.

The following statement by the majority exemplifies their liberal approach to this case: "“Judicial inquiry into context provides the requisite background for the interpretation and the application of the law. An understanding of the context or background essential to judging may be gained from testimony from expert witnesses, from academic studies properly placed before the court, and from the judge’s personal understanding and experience of the society in which the judge lives and works. This process of enlargement is a precondition of impartiality. A reasonable person, far from being troubled by this process, would see it as an important aid to judicial impartiality.”" Ultimately, the majority stresses the importance of judicial inquiry into context for the purpose of determining judicial impartiality while the dissent does not. The incorporation of contextual factors is a reflection of the majority’s liberal political view while the strict evidentiary approach is a reflection of the dissent’s conservative views. All in all, relating this back to R v RDS, Kennedy would say that the majority and minority contradict one another with regard to their legal conclusions because their political motivations lead them to different outcomes.

Critical race theorists would find that the dissent represents a more conservative philosophy because their reasoning leads them to only consider evidence when determining whether there is an apprehension of bias. By adhering to this rigid formula and failing to consider context, Kennedy would say that their conservative views lead them to maintain the law the way that it is. Ultimately, this serves to benefit the existing power relationships currently held by the white privileged men. The dissent is attempting to reinforce the existing power relationship by being unreceptive to change. By doing this, they are reinforcing a centrist and moderate way of thinking; one that legitimizes and reinforces the status quo by being closed to solutions that favour a sharp change in the system.

The idea within critical legal theory that laws are embedded in a political structure is similar to feminist legal theory, however the latter theorists take a much broader approach to this idea as they find that the law is rooted in the patriarchy. Feminist legal theorists like Catherine MacKinnon would also differ in that they believe the motivations which underlie a judge’s reasoning actually serve to reinforce the patriarchy. However, critical legal theorists do not place an emphasis on patriarchy; rather they say that legal doctrines serve the interest of those who hold the most power in society.

= Critical Race Theory =

As all the judgments speak of a “line” that should not be crossed, we can see that this line serves as a measurement where context becomes an objective variable to be weighed as judges come to a decision. In R v. RDS the contextual variable that creates the line and separates the differing decisions is race. The majority and concurring majority finds race to be an important consideration whereas the dissent thinks that it is only appropriate to consider race, if at all, in limited circumstances: 1) when weighing credibility, and 2) where there is clear evidence that race has been brought into the picture.

Critical race theorists would agree with the majority’s position that conscious, contextual inquiry has become an accepted step towards judicial impartiality. This is beneficial because the more views that are considered, the less likely judges will be locked into one perspective, and this enhances judicial objectivity. As a result, race is a variable that should always be taken into consideration since this aids in breaking away from the white point of view.

For the majority, the reasonable person is one who approaches the question of whether there is a reasonable apprehension of bias, with a complex and contextualized understanding of the issue at hand. Thus, the majority recognizes the impossibility of judicial neutrality but demands judicial impartiality. Critical race theorists would approve of this because it acknowledges the fact that diversity exists, and informs the application of diversity in a non-biased way.

The majority’s finding that contextual relevance was important can be explained when looking to the background of the case. Judge Sparks was a black female judge. At the time of the trial she was the only black judge in Nova Scotia. The trial took place five years after the Royal Commission of the Donald Marshall Jr. Prosecution, which made numerous findings concerning institutional racism in Nova Scotia. As well, the Canadian courts have recently begun to take judicial notice of racial discrimination. All these factors are those that Judge Sparks would have taken into consideration in her approach to the case.

Critical race theorists would state that when judges do not take social constructs into account, they are being “color blind”. In order to be impartial, differences need to be acknowledged, rather than being ignored as if they do not exist. As a result, critical race theorists would agree with the Majority’s view that in relation to the hypothetical line, Judge Sparks was not close to crossing it. Rather, that the line reflected an appropriate recognition of the facts with respect to the evidence in this case and of the context in which it arose – a context that was known to Judge Sparks.

In terms of the concurring opinion, critical race theorists would disagree with the former’s position that context can only be used to determine credibility. Critical race theorists would also disagree that the trial judge’s comments were “unfortunate…troubling…and unnecessary”, that she was so close to the “line” in disregarding race unless its relevance could be specifically demonstrated.

The concurring decision also stated that fairness and impartiality of a judge must be present to an informed and reasonable observer, but a critical race theorist might ask whose point of view actually creates the “reasonable, informed person”. Critical race theorists would warn that the reasonable person would have to be formed through a multicultural perspective; this person cannot solely serve the white majority. In addition, as critical race theorists feel that the issue of race is not properly addressed in the legal system, people need to be aware of that fact since this is a form of institutional racism. As a result, judicial impartiality will be difficult to achieve if the judicial system is inherently biased.

Critical race theorists would criticize the dissent for maintaining a pervasive and conservative white male view in the judicial system. This would be because a trial judge neglecting to consider life experience in coming to a decision would ignore the fact that race, as a social construct, has a powerful impact on people’s lives. As a result, the dissent’s holding would go against one of the central tenets of critical race theory that racial perspectives should be taken into account.

From the dissent, they stated that “judges, as arbiters of truth, cannot judge credibility based on irrelevant witness characteristics. All witnesses must be placed on equal footing before the court.” Such a statement would be criticized by Awylward’s view in that court’s do not properly consider the implications of a failure to explicitly instruct on issues of race. Critical race theorists would find that social context is integral to understanding the social construct that is imposed on a minority accused. Neglecting to address social context would deprive the accused’s actions of being properly understood with regards to how and why he acted in a given scenario.

As three out of nine judges formed the dissent in R v. RDS, this may lead critical race theorists to find that it will still take more time for major actors in the judicial system to consider and internalize perspectives of the non-white majority. Awylward would suggest that this could be rectified by increasing the presence of black legal representation within the legal community.

In the bigger picture, critical race theorists would argue that not taking social context or life experience into account would perpetuate the pervasive denial of racism in Canadian society. This would serve to reinforce the non-minority views that pervade the legal system and reinforce the status quo.