RSS FeedAccess to justice and elected judges (conclusion)
(Part 1)
So anyone demanding the election of judges should understand this: there is a conflict between accountability and impartiality. It’s often hard to get the judges both to be independent and to answer to the people. For example, when the government throws a citizen to the wolves in a foreign country, an independent judge will lawfully award her damages. A judge worried about re-election may cave to his sense of the mood among the majority of taxpayers.
When judges apply straightforward law to straightforward facts, the accountability argument is especially weak. The law is an expression of the majority’s will. When legislatures pass laws, their straightforward applications are obvious. We expect judges to apply such laws almost mechanically. In these cases, judges are pretty much delegates of the legislature. They don’t make any law so they should not be accountable beyond the basic professional standards.
And don’t forget the Constitution—the super law. Its very purpose is to protect some principles against the majority’s will. In Canada, these principles include the makeup of our political system and the fundamental human rights. Judges can strike federal laws when they overstep the constitutional bounds. This is an awesome power of the judiciary. It usually uses it against the majority, so how can anyone expect it to be accountable to the majority at the same time?
When judges apply ambiguous non-constitutional rules, the accountability appears more important. The legislature, either intentionally or accidentally, leaves gaps in the law. It is up to the judiciary to choose one interpretation of the law when some new, unusual dispute finds a hole in the rules. Trial judges have another important power that may need accountability. They are free to decide what facts to take as the truth and what facts to ignore after hearing both parties. Sometimes, juries of ordinary citizens do this job, but in Canada usually judges “find facts”.
But even when accountability is reasonable, it is practically too difficult to have. Judges are different from politicians. Majorities have a right to call the government to account on every political decision. But as we just saw, citizens can claim a right to scrutinize only some judicial rulings. This brings difficulty and uncertainty. Most people do not have legal training. Citizens will have a hard time telling decisions open to their scorn from untouchable rulings. Using more government resources to explain or filter judicial decisions will overburden a system that is already bursting at the seams.
The good news is there are alternatives to the judiciary’s direct accountability through elections. First, we can choose judges very carefully. The Parliament is free to set standards for judicial selection. Second, we can monitor the judiciary for obvious abuse. The police are free to investigate judges suspected of crimes. The Crown is free to charge them if there is enough evidence. Third, we have the appeal route when judges make errors of law. It’s a time-tested but expensive mechanism. Finally, perhaps we should have more juries to make fact-finders more representative of the general population. Unlike the US, Canada has very few jury trials. When a jury makes a verdict, it’s one fewer judge to accuse of being unaccountable to the people.
There are good reasons to demand election of our judges. But the reasons not to are even better. In conclusive cases and in many constitutional disputes the judges should not owe any accountability to the majority. Telling the difference could be too costly for the public, but any mistakes can undermine the administration of justice or the Constitution. Judges protect us not only from illegality but also from ourselves. It’s a huge role. Much accountability is already there through law enforcement and regulation of the bench. If that’s not enough, we could use juries more often. Beyond that, we will have to trust our judges. They have usually been doing a good job anyway.
Copyright Law, Freedom of Expression and Canwest v. Horizon
In a previous post I erroneously stated that the appeal of Canwest Mediaworks Publications v. Horizon Publications had been dropped. As it turns out, the appeal is pending; the game is on. Those who wish to know more should visit the Seriously Free Speech Committee website where there is a wealth of information including the trial court decision and the Notice of Appeal. While browsing the site, I noticed that within some of the articles there are calls for Canwest to drop the suit. Although I completely understand why the appellants would want to be freed from the onerous burden of legal action, I am hoping that the case proceeds for the benefit of society.
Copyright law occupies an unusual place in the legal landscape. It is an extraordinarily complicated regime that affects our daily lives in hundreds of ways, yet it is rarely litigated. There are only a handful of appellate court decisions pertaining to copyright law; opportunities to move the law in a positive direction are infrequent and questionable decisions like Michelin can linger for decades.
While many cases of infringement involve activities that could reasonably be described as unjust enrichment, the wording of the statute is such that a black letter interpretation renders a number of practices unlawful that are in fact beneficial to society and do not involve usurping the gains of a copyright-holder. A prime example is the artistic practice of appropriation, i.e. using culturally recognized symbols (for which copyright usually subsists) to express a unique idea. In the Michelin case, a cartoon was distributed to promote a union drive which depicted a large smiling “Michelin Man” about to trample on a Michelin factory worker.
Although appropriation is an old artistic technique, it is becoming much more common in our media-rich culture, and I would suggest that the growing importance of appropriation is a natural evolution in a society where we are constantly bombarded with images and sound bites. No individual alive today created the English language. We were “bombarded” with it when we grew up, and we appropriated the words and phrases as tools for our own expression. This is a reasonable and indeed productive activity. It is for this reason that copyright protection is not permitted for words and ideas; they are the building blocks of expression that are part of our cultural heritage and rightly belong in the public domain.
In a media-saturated society, the same elements are at work with the many images and sound bites that we are exposed to. With the growing variety of tools to manipulate them, it is only natural that artists would incorporate some of these images and sound bites into their own unique works, and often as a means of social commentary. This is what artists do. They have never been satisfied with painting pretty pictures, but prefer to shine a harsh light on the society in which they live through the innovative use of symbols. This is an important part of the social dialogue and free exchange of ideas that underpin our culturally rich society.
The law of copyright, in its current form, depends upon the concepts of originality and substantiality to protect the building blocks of expression, and therefore only permits appropriation that is not substantial (with narrow exceptions for fair dealing as explained by David Fewer — thank you for your comment). This test is too simple to ‘get it right’. As a result, it has the incidental effect of stifling the vast majority of appropriative forms of artistic expression and social commentary, regardless of the social import and regardless of how creative a work is.
There can be no doubt that copyright law protects legitimate interests, and it must continue to do so. However, I respectfully submit that the current statute, as applied by the courts, does not adequately serve the dual objectives of “promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator” (Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34 at para 30.). To the contrary, the law actually discourages the creation and distribution of new works.
In a society where copyright cases are rarely litigated, the Canwest case is an invaluable opportunity. It is my hope (and apparently I am not alone) that the Canwest case results in a more nuanced enunciation of copyright law in Canada: one that allows appropriation in circumstances where it does not interfere with the legitimate interests of a copyright holder.
The Charter Does Not Apply to Copyright Law
Despite the public attention that has been directed at copyright law recently, the issues surrounding the Charter right to freedom of expression have been absent from the public discourse. The matter was litigated last fall when the Supreme Court of British Columbia cited the Federal Court’s dubious Michelin decision to summarily cast aside any Charter defences to copyright infringement. I’m talking about the decision in Canwest Mediaworks Publications v. Horizon Publications, 2008 BCSC 1609, and I am surprised that it drew so little public attention.
In this case, political activists created and distributed free of charge a satire of the Vancouver Sun newspaper in an attempt to draw attention to the alleged editorial bias of the Sun’s parent company, Canwest Mediaworks. Canwest is responsible for 80% of the newspapers sold in B.C., and the freedom of expression issues are fairly obvious with respect to truth-seeking and the marketplace for ideas that a democratic society requires to function properly. Meanwhile, from a policy standpoint, it is difficult to see any benefits that accrue to society by protecting Canwest’s copyright interests in this context, let alone any benefits that would trump the value of the Charter. However the Court saw no merit in the Charter issues.
The decision was appealed but Canwest decided not to pursue the matter. While some civil liberty supporters cheered this outcome, the fact that the Canwest decision was not reevaluated means that both Michelin and Canwest represent the current state of copyright law in Canada with respect to the Charter.
Canadian legal scholars have yet to weigh in on Canwest, but they have been unanimous in their criticism of Michelin. According to Vaver, “the … view in the Michelin case, with its disturbing assertion that the freedom of expression guarantee in the Charter of Rights and Freedoms can never override copyright ‘property’ should be rejected.” (David Vaver, Copyright Law ( Toronto: Irwin Law, 2000) at 195). Similar sentiments have been expressed by David Fewer, Jane Baley and Karen Lowe.
I respectfully agree. Copyright law is necessary to facilitate a business model that is widely accepted in our society but it affects the ability of various parties to communicate and is therefore likely to affect Charter rights from time to time. How absurd to suggest that copyright law is immune to Charter scrutiny.
Yet, there are two concurring cases as precedents, and typically the loser pays the winner’s costs, so it is unlikely that these decisions will be overruled in the foreseeable future.
Those who are interested are encouraged to read the following:
David Fewer, “ Constitutionalizing Copyright: Freedom of Expression and the Limits of Copyright in Canada” (1997) 55 U. Toronto Fac. L. Rev. 175.
Jane Bailey “Deflating the Michelin Man: Protecting Users’ Rights in the Canadian Copyright Reform Process” in Michael Geist, Ed., In The Public Interest: The Future of Canadian Copyright Law (Toronto, Irwin Law 2005).
Karen Lowe “Shushing The New Aesthetic Vocabulary: Appropriation Art Under the Canadian Copyright Regime” (2008) 17 Dalhousie J. Leg. Stud. 99.
The Michelin case makes for interesting reading as well: Compagnie Générale des Établissements Michelin-Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (T.D.) (1996), [1997] 2 F.C. 306.
NOTE: Shortly after publishing this note I learned that the appeal was not dropped. Bloggers beware: there are a lot of news articles on-line and many are not current. Some have the facts wrong. It is easy to be misinformed. As well, due to a computer glitch, the original post was deleted so this post is a ‘resurrection’ of sorts. Unfortunately the insightful comments by Pulat Yunusov and David Fewer were lost in the process. I am very disappointed … but life goes on.
The Conflicted Relationship between Lawyers and “Indians”
[The following piece was sent to us by a reader. Reproduced with permission of the author.]
An Identification of the Conflicted Relationship between the Indigenous Nations and the Legal Profession in North America
by Bruce Clark, LL.B., M.A., Ph.D.
An Indian goes into a law office and says, “Since my traditional government never agreed by any treaty to be governed by your government, why does your legal system apply your government’s laws to me on my indigenous nation’s unceded national territory?”
If he lives in Canada the Indian is likely to be aware of the fact that the original constitution for all of British North America (the Royal Proclamation of 1763) reiterated the stipulation that the first principle of all land occupancy and jurisdiction law is, “that the several Nations or Tribes of Indians with whom We are connected and who live under our Protection should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as not having been ceded to or purchased by Us are reserved to them or any of them as their Hunting Grounds.”
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