Some people now assert that courts work better when they are relaxed, informal, modern, familiar, and unimpressive. Those people rarely offer any proof or even argument. I am more than sceptical.
You cannot know how anything should be, work, or appear, unless you know what its aim is. What are the aims of a court? Obviously one is to apply the law and do justice. But courts have other aims too. They exist to end disputes and prevent feuds. And they must encourage people to accept their decisions. There are not enough police and soldiers in Canada to enforce every court decision. Megarry used to quote an Ontario trial judge who said that the most important person in a courtroom is the party who is going to lose. Why do we hold public trials, and not merely mail out an anonymous one-line decision? One reason is to convince the losing party that there was a careful, informed, and fair process. Another somewhat overlapping aim is to convince the parties and the public that the court is learned, independent, powerful, and is enforcing a hallowed system of justice which monarchs in England and the legal profession built up over 800 years.
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There is another way to encourage people to acquiesce in court decisions. That is to show that they are final and binding, backed up by the full force of the state, and that disobeying a court is simply unthinkable.
When an English judge went out on circuit, tradition and wisdom were not the only things being advertised. The monarch and all the power that he or she commanded, were also advertised. The carrot and the stick were very skillfully and convincingly blended.
For many centuries, the English Queen's Bench judges sat in market towns all across England. Often there was no dedicated court building, and (as in Canada's north) the judge sat in a town hall or community building. Without more, one old judge coming quietly into town and sitting on a little raised platform in the town hall, would not have impressed anyone with anything. So the English staged a ceremony. A procession to and from the cathedral marked the opening of the assize. There were uniformed trumpeters, javelin men, the High Sheriff and Undersheriff, and municipal officials, all in elaborate costume. Then court opened with a formal proclamation. And in court, the judge, court officials, and counsel, all wore distinctive costumes. The judge was the personal representative of the monarch, and displayed the royal coat of arms. One of the Treason Acts declared it to be high treason for anyone to attack and kill the King's Justices when sitting on the Bench. This proclaimed to all that the judge was boss, not any local lord.
In London, most of the courts sat in the ancient hall of Westminster Palace, until the present huge imposing Royal Courts of Justice were built in the Strand in the 1880s. More and more of the bigger English towns have seen special purpose-built court premises erected.
Canada also used to build fine court buildings. Often the court building was one of the very first buildings put up in a community. In larger cities, the court buildings were large and impressive, often more classical than even a bank. In Quebec they were called the Palace of Justice. The Supreme Court of Canada's building, erected at the beginning of WWII, has so much huge impressive marble foyer, that during the war it housed the entire Department of National Revenue.
All provincial legislatures properly enjoy grand impressive marble buildings with huge entrances. Many city halls are almost as large and impressive. The one in Edmonton houses very little except the City Council, whose chamber is reached by a huge staircase like that of a Cathedral or a Legislature.
But many courts have lost that treatment. The Federal Court of Appeal, one of the two sites of the Alberta Court of Appeal, and the premises of the Courts of Appeal of Newfoundland and Labrador, and of New Brunswick, and the Northwest Territories, are very unimpressive. Several of them are just a floor or even a fraction of a floor in an ordinary office building, with entrances less imposing than a large commercial or law office.
Does that matter? Should taxpayers' money be spent glorifying judges? That is a trick question, misstating the issue. It does matter.
Is it a coincidence that more and more politicians look on the courts as a branch of government which is disobedient and disrespectful to the important people, the Cabinet and senior public officials? Or that many officials are now paid much more than judges? That in Toronto or Vancouver a judge's salary will not buy a decent house and educate two or three children? Or that politicians are more and more willing to inject politics into questions of justice? Or that Ministers of Justice no longer hold one of the important Cabinet positions? Or that the cries of 40 years ago for non-partisan non-political selection of judges have now died away or even reversed? That the managing partner of a law firm now has much more prestige than a superior court judge (not to mention what the partner earns)? That the media constantly display ignorance of the simplest facts or terminology about the courts, while displaying knowledge of all the intricacies of politics and government? That Alberta judicial positions can go unfilled two or three years (no matter what party is in power)? And that the number of vacancies can steadily grow?
Is it a coincidence that a higher and higher proportion of litigants (civil and criminal) now openly demonstrate disrespect for the courts, even willing openly defy them and insult them? That some citizens and even some traditional groups openly question their authority and assert that the groups’ members are not subject to the courts try to “arrest” judges? Not all those people are ignorant, emotional, or simply misunderstand. Some are dishonest, vindictive, manipulative, and very dangerous.
Often the causes of ignorance, neglect, or lack of respect, are neither few nor simple. Asking what they are, may be like asking someone to disprove a negative. But the cures for ignorance, neglect, and fearlessness, are often far simpler. Among them are publicity, noticeability, and education.
Merchants and governments do not procure attention or credibility for their business or reputation by moving to smaller more obscure premises, not advertising, and dressing their employees in old clothes. Even a restaurant chooses attractive premises and well-dressed employees.
Has anyone looked at those citizens who show little or no respect for the courts, and thought about what they saw and experienced when they went to court? A crowded little courtroom hidden somewhere in a shopping centre or behind a set of government offices? Chambers motions where no one was gowned? And where no one bows to the presiding officer, who is not called “My Lord” or “My Lady” or even “Your Honor”, but just “Sir” or “Ma’m”? Or not formally addressed at all? Court documents which no longer start with “In the Supreme Court of Assiniboia” in large old English letters, and instead start with “Form Number 137. Do not Write in this Space”?
We are now told that a quarter of Canadian residents were born outside Canada, and a much larger percentage have parents who were not born here. It is safe to assume that most of those people have grown up in a country with different legal traditions, or none. In some, the police and the courts are ineffective, corrupt, tyrannical, or all three. Do we do a single thing to show or tell people with such backgrounds that our courts are different, fair, powerful, and important?
Canadians have thought a good deal about making a court more pleasant for witnesses or victims. That is probably a good idea. But we have not thought enough about the parties. We need to motivate and impress them. In particular, we seem to have forgotten to give messages to the most important person in the courtroom: the party who is going to lose.
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.
