That Ain’t the Law of Killaloe

Premier Leslie Frost loved to tell the story about a young Toronto lawyer who drove up to Killaloe, back in the day, to argue a case which despite being small potatoes was very important to a wealthy client. Prepared to the hilt, the young fellow strode into magistrate’s court with a trolley full of books, and began citing case after case from them. After about ten minutes of this, the grizzled old magistrate stopped him in mid-flight. “Son,” he intoned, “that may be the law in them there books, but it ain’t the law of Killaloe!”

It’s a cute story, and it may even be true. And if it was, assuming the important client lost his case, it was always appealable up to County Court, and beyond, where “the law in them there books” had more respect.

There’s always been a streak in our society which was impatient with “the law in them there books”, pining for a kind of justice that shot from the hip, followed hunches, and depended much on which side of the bed the judge got out of in the morning. In law school they called this “Palm Tree Justice”. And I suppose that as long as the judge was all-wise, all-knowing, and unbiased, that system might work.

The problem, of course, is that judges who are all-wise, all-knowing, and unbiased are few and far between, if they exist at all. Virtually every judge I’ve ever known, and I’ve known many, has been clever, wise, measured, disciplined, sincere, and well-intentioned. But every one of them was human, every one of them got tired, every one of them had natural human biases, and every one of them on occasion made a bad judgment. As would you or I.

So that’s why we have laws, some of them made by parliament, and some of them made by precedent. Written laws offer predictability and uniformity of outcome, and have strict rules as to what evidence can be offered and how it is to be treated.

Not only do we have laws, but we also have rules of procedure. In other words, your filings and your timelines and your introduction of evidence must follow the guidelines, and if you don’t follow them, there are consequences, including dismissal and having a default judgment go against you. If you don’t play by the rules, you’ll suffer. If the judge doesn’t follow the rules, they’ll be sanctioned or appealed.

Do judges get to make law? Of course they do, but they can’t and don’t just snatch whims out of the air. Each judge must be guided by years of jurisprudence, that is, previous decisions about parallel situations, and they are constrained by legislation, by strict rules of evidence admission or exclusion, and by the court’s own rules of procedure. Almost all the time when a judge “makes law”, they are making sensible minor tweaks so that the matter in front of them is decided in a way that harmonizes with similar but not identical earlier situations. You might say you would have “predicted” that outcome (and that is a critical part of appellate advocacy).

On rare, rare, occasions a judge will issue a judgment which creates brand new law. Even in those cases, the judge’s written reasons tend to be lengthy and carefully written, examining the underlying principles of relevant existing law, both case law and statute law, with the same finicky care that a scientist displays in leading edge research. Particularly where the case relates to something very novel, the court will typically want to know what is going on in other jurisdictions and what the politicians had in mind when a statute came into force.

Contrary to a lot of popular opinion, judges don’t just pull stuff out of thin air because of their political or social inclinations, at least not in this country. Most judges, in any event, tend to be centrist in their view of life, and the occasional wild-eyed leftist or right winger who slips into the system tends to get in touch with reality before long.

One particularly important feature of Canadian legal culture, and of most other democracies, is that judges are (by and large) appointed on merit and with considerable care. There have occasionally been egregious cases of politicians appointing their buddies, but that is becoming increasingly rare. Typically one becomes a judge because they have made application to do so, and submitted to a brutal vetting process which includes review by their peers and by judges before whom they have appeared. I can think of very few instances in my thirty seven years of practice where practicing lawyers would hear of an appointment and collectively say, “Where did that come from?”

Another key feature of Canadian courts is that judges are not elected by the voting population. At first sight, that appears undemocratic, but in practice it means that we don’t get the barely concealed mob rule we see in neighbouring countries where judges make their rulings with an eye to the next election, polling and testing the wind, constantly tacking to ensure they’re making the right headlines to please the right people.

So, yeah, we rarely encounter “that ain’t the law of Killaloe”, and let’s be thankful.

And my apologies to Killaloe, a delightful little town.