The evolution of reasonableness

What would a reasonable person think? It’s an eternal question in the common law, and an eternally interesting one. This is because the “reasonable person” standard is a conceptual vessel into which we pour a multitude of assumptions about the kinds of knowledge and values we want our legal system to reflect. As a result, the standard ends up evolving, awkwardly and inconsistently at times, based on perceptions that might fluctuate with a changing society.

Two recent decisions of the Supreme Court of Canada illustrate this point.  The contexts are different, but each decision sheds light on how the Court views the reasonable person as a barometer of broader issues facing the justice system.

At issue in the first ruling, Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), a case about minority language education rights, was whether the trial judge’s conduct during trial, along with his extra-judicial affiliation with a Francophone association, gave rise to a reasonable apprehension of bias (judged, of course, using the standard of the reasonable person).

In the second, R v St-Cloud, the question was whether an accused person’s detention pending trial was required to maintain public confidence in the administration of justice – judged according to what reasonable members of the public would think. Justice Abella wrote the unanimous reasons in Yukon, and Justice Wagner wrote for the Court in St-Cloud.

Yukon: The reasonable person and judicial impartiality

The central query in a reasonable apprehension of bias (RAB) case like Yukon is, “what would a reasonable, informed person think?” But the analysis ends up being much more about the impartiality of the judge under scrutiny than the hypothetical reasonable person doing the scrutinizing. This makes sense – when RAB arguments are raised at first instance, the judge applies the test to herself to determine whether she will be able to decide the matter with an open mind.

On the facts of Yukon, the Court agreed that the trial judge’s interventions and insinuations against the Yukon government indicated a potential for bias.

But it’s the other half of the RAB discussion that may have a bigger impact in future cases, because it reveals a more expansive understanding of the kinds of activities judges can undertake off the bench without having their impartiality on the bench affected.

The trial judge in Yukon was a governor of the Fondation franco-albertaine at the time he presided over this case, an organization with a “vision…for ‘[a] francophone community in Alberta that is autonomous, dynamic and valued.’” He also had an extensive history of involvement advocating for the rights of francophones in Alberta before his appointment to the bench.

For the Yukon Court of Appeal, the judge’s role as governor suggested a possible favouritism toward the views of the francophone school board, and gave rise to a reasonable apprehension of bias.

Justice Abella disagreed: “Standing alone, vague statements about the organization’s mission and vision do not displace the presumption of impartiality.” Recognizing that judges, like regular people, are the sum of their experiences and identity, Justice Abella agreed that judges must resist moving into isolated “ivory towers” following their appointment.

The Canadian Judicial Council’s Ethical Principles for Judges, quoted in Yukon, urge caution when judges are continuing or considering involvement in the community, but do not rule it out. Justice Abella suggested judges should be “avoiding affiliations with certain organizations such as advocacy or political groups” but “should not be required to immunize themselves from participation in community service where there is little likelihood of potential conflicts of interest.” The Yukon trial judge’s involvement in a language-focused organization was not enough to call his impartiality into question, even in a case dealing directly with minority language education rights.

What’s more, Justice Abella wrote, “Canada has devoted a great deal of effort to creating a more diverse bench. That very diversity should not operate as a presumption that a judge’s identity closes the judicial mind.”  Nor should involvement in organizations that promote diversity and equality disqualify a judge from hearing a tangentially related case. Practically speaking, acknowledging that it’s acceptable, and even desirable, to maintain a life in the community outside court may help encourage judicial applications from a wider variety of candidates.

“Membership in an association affiliated with the interests of a particular race, nationality, religion, or language is not, without more, a basis for concluding that a perception of bias can reasonably be said to arise,” Justice Abella wrote. “We expect a degree of mature judgment on the part of an informed public which recognizes that not everything a judge does or joins predetermines how he or she will judge a case.”

To sum up on Yukon: Judges can do a lot of living while still remaining impartial, and the reasonable person has to recognize that.

St-Cloud: The reasonable person and the administration of justice

The reasonable apprehension of bias test is meant to promote public confidence in the legal system by ensuring that judges are presumed to be, and remain, impartial.

Public confidence in the administration of justice was also at the heart of the St-Cloud ruling.

The Court in St-Cloud was considering section 515(10)(c) of the Criminal Code, which permits a justice to detain an accused pending trial “if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances” (including certain listed factors, like the gravity of the offence). The word “public” is not in the English version of section 515(10)(c), but it has been read in: The analysis, under this ground, is all about “public confidence.”

The question then becomes, who is “the public”? This is where reasonableness comes into play – in particular, the justice’s view of what “reasonable members of the community who are properly informed about ‘the philosophy of the legislative provisions, Charter values and the actual circumstances of the case’” would think about the necessity of detaining the accused.

According to Justice Wagner, these hypothetical community members have some legal knowledge but are not experts. They must have an accurate understanding of the case and approach it in accordance “with our society’s fundamental values.” They will remain dispassionate about the criminal case at issue. In fact, they will only be considered reasonable if they are not “prone to emotional reactions.”

This is asking a lot of the reasonable person. But it is a fair request. Charter rights and values are a fundamental part of our legal system, and arguably no legal standard would be complete without taking them into account.

Just as the reasonable person in the RAB context knows about the presumption of judicial impartiality when assessing judicial conduct, these informed members of the community must keep the presumption of innocence—along with the Charter rights to liberty and to reasonable bail—front of mind when assessing the need to detain an accused.

So far, so good: Taking Yukon and St-Cloud together, we have a generous conception of reasonableness that, in effect, allows for judges to be involved in their communities, and requires members of the public to recognize the fundamental rights and values enshrined in the Charter. This holistic approach to the reasonable person’s abilities and qualities reflects an enlightened, diverse, and rights-based society – or at least the aspiration of one. In other words, it’s a progressive evolution from the man on the Clapham omnibus.

Or is it? Justice Wagner’s analysis went slightly astray when he brought social media into it. He suggested that social media and “24-hour news reports” are bad because they encourage unreasonable “chain reactions”:

Canadians may in fact think they are very well informed, but that is unfortunately not always the case. Moreover, people can also make their reactions known much more quickly, more effectively and on a wider scale than in the past, in particular through the social media mentioned above, which are conducive to chain reactions. The courts must therefore be careful not to yield to purely emotional public reactions or reactions that may be based on inadequate knowledge of the real circumstances of a case.

This seems rather elitist (“Canadians aren’t as well-informed as they think they are”), and an elitist “reasonable person” is just as risky to the rule of law as an ignorant one. If judges can participate in community organizations without losing their objectivity, then surely the average citizen can be active on social media, sift through what she sees, and still remain reasonable and above the fray. She can think for herself.

As a whole, Justice Wagner’s reasons are consistent with this view of reasonableness; members of the community who grasp the Charter aren’t likely to be swayed by frantic “lock him up!” tweets. He went on to say that the courts must “be sensitive to the perceptions of people who are reasonable and well informed,” and “act both as watchdogs against mob justice and as guardians of public confidence in our legal system.”  

But in fulfilling this role, courts should recognize that many “people who are reasonable and well informed” are themselves contributing to and participating in social media discussions, and are able to keep an open mind at the same time (open, not empty).

Relying on concepts like “the reasonable person” and “the community” is acceptable and necessary for law to reflect real life, and to incorporate workable, if imperfect, standards to do so. But if, in our assumptions underlying reasonableness, we’re giving more freedom for judges to participate in the off-line community, then our assumptions should allow for other members of the public to have a life online without having their objectivity challenged. That’s not too much to ask, in an age when the reasonable people on the Clapham omnibus are scrolling through Twitter rather than looking out the window.