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"The appearance of justice": public justification in the legal relation.

I INTRODUCTION

II PUBLIC REPUTE DISCOURSE

Relevant Features of Public Repute Discourse
    Public Repute Discourse Involves Repute in the Eyes of a
    Reasonable Person
    Public Repute Discourse is Self-Reflexive But Not Empty
    The Reasonable Person in Public Repute Discourse and in Negligence
The Instrumental Rationale and Its Shortcomings
    In General
    Confidence in the Administration of Justice in R. v. Hall

III PUBLIC REPUTE DISCOURSE AND THE PUBLIC JUSTIFICATION
OF LEGAL RESULTS

Relations, Personae, Obligations, and Justification
    Public Justification in The Political Relation
    Public Justification in Juridical Relations
    The Legal Relation
The Public Justification of Legal Results
    Openness and Cogency
    Impartiality and Independence
Self-Reflexivity, the Problem of Ideology, and Education

IV CONCLUSION

Abstract

"Public repute discourse" occurs when courts attend to how their actions appear to the public. This discourse is pervasive and fundamental to courts" sense of their own legitimacy. It usually involves a "reasonable observer"--an idealized member of the public from whose objective perspective courts evaluate the appearance of their own actions. This article argues that courts' concern about public appearance, while obviously not about the abstract correctness of their decisions, is equally not aimed at securing the support of the actual public. It is ultimately about the legitimacy of the legal obligations they expound.

First, this article argues that courts care about the public appearance of their actions because abstract truth is not the criterion of legitimacy for legal obligations; legal obligations must be justified as authentic. Second, the article argues that courts care about how their actions appear to a reasonable observer because all legitimate obligations must be publicly justified, and that the right-minded and well-informed person about whom courts habitually speak is the persona to whom they must address a public legal justification. The article discusses public justification in the political relation and in the juridical relation, distinguishing both from justification in the legal relation, which is my main subject. Finally, the article examines several familiar features of adjudication and argue that they are best understood as facilitating public justification to the reasonable observer of the legal system.

Resume

Un << discours de reputation publique >> se produit lorsque les tribunaux considerent comment leurs actions seront percues par le public. Ce discours est dominant et fondamental aux tribunaux pour qu'ils se sentent legitimes. Le discours inclut habituellement un << observateur raisonnable >> -- un membre idealise du public avec une perspective objective dont les tribunaux se servent pour evaluer l'apparence de leurs propre actions. Cet article propose que le souci que les tribunaux portent a l'apparence publique, quoiqu'il ne concerne pas la validite abstraite de leurs decisions, ne vise pas non plus a obtenir le support du public. Il en est ultimement une question de valider les obligations legales que les tribunaux imposent.

Cet article suggere en premier lieu que les tribunaux se soucient de l'apparence publique de leurs actions parce que la verite abstraite n'est pas le critere de legitimite pour les obligations legales; ces obligations doivent etre justifiees comme authentiques. Deuxiemement, l'article propose que les tribunaux se soucient de la perception qu'aurait un observateur raisonnable de leurs actions car toute obligation legitime doit etre justifiee publiquement, et parce que la personne bien informee et possedant un bon etat d'esprit dont les tribunaux font habituellement mention est le personnage auquel ils doivent adresser une justification legale et publique. Cet article discutera de justification publique au sens politique et juridique, tout en distinguant les deux de la justification au sens legal, qui est mon principal sujet. Finalement, cet article examinera plusieurs dispositifs familiers du processus de jugement et propose qu'ils soient mieux comprehensibles s'ils facilitent une justification publique dirigee a un observateur raisonnable du systeme legal.

I INTRODUCTION

Why do courts care about how their actions appear to the public, rather than how their actions really are? Who is the right-minded and well-informed person whose reaction courts consider when they discuss public appearance? My answer to the first question is that courts care about the public appearance of their actions because abstract truth is not the criterion of legitimacy for legal obligations; legal obligations must be justified as authentic. My answer to the second question is that all legitimate obligations must be publicly justified, and that the right-minded and well-informed person about whom courts habitually speak is the persona to whom they must address a public legal justification. Furthermore, courts' concern about public appearance, while obviously not about the abstract correctness of their decisions, is equally not aimed at securing the support of the actual public. It is ultimately about the legitimacy of the legal obligations they expound.

In Part I, I describe the courts' concern about public appearance, which I call "public repute discourse", giving some examples and setting out its basic features. In Part II, I critically analyze the tendency to interpret this discourse instrumentally, as aimed at securing actual confidence in courts and actual obedience to their judgments. I also criticize the Supreme Court of Canada's analysis of public confidence in R. v. Hall. (1) In Part III, I develop an account of three distinct human relations in terms of obligation and justice: the juridical, the legal, and the political. I argue that under all three, legitimate obligations must be publicly justified to idealized personae. I argue that the reasonable person involved in courts' concern about public appearance is the persona corresponding to the legal relation. Finally, I discuss the examples of the concern with public appearance, and explain how they go to the public justification of the authenticity of legal results.

II PUBLIC REPUTE DISCOURSE

The law is concerned with the way it appears to the public. This concern appears as a part of many different legal tests. Sometimes it appears in an area of pure judge-made law; sometimes it appears in a statute, either by express language or through statutory interpretation; sometimes it appears as part of a constitutional provision. Let me call this phenomenon "public repute discourse".

Public repute discourse relates to three general categories of legal issues: (1) judicial impartiality and independence; (2) (2) participatory procedural rights at trials and at other adjudicative proceedings; (3) and (3) the misconduct of non-judicial actors in the legal system--in other words, lawyers, prosecutors, and police. Along with these general categories, I will also consider two uniquely Canadian instances where the law is concerned with its own repute: the "public confidence" ground for the denial of bail to a criminal accused, and the exclusion of unconstitutionally-obtained evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms. (4)

Let me briefly set out some representative examples of the three main categories of public repute discourse. For the first category, whether a judge--or other adjudicative decision-maker--is disqualified or must recuse himself or herself, usually depends on whether a reasonable person might perceive the judge as biased, and not whether the judge actually is biased. (5) The former condition is called "reasonable apprehension of bias". (6) When common law jurisdiction courts discuss bias, they still quote Lord Hewart C.J. in R. v. Sussex Justices, Ex parte McCarthy: "[I]t is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." (7) This has become something of a maxim or touchstone in all legal areas where public repute discourse appears. More recently, Lord Denning M.R. made clear the importance of appearances when determining whether or not a judge must be disqualified:

   [I]n considering whether there was a real likelihood of bias, the
   court does not look at the mind of the justice himself or at the
   mind of the chairman of the tribunal, or whoever it may be, who
   sits in a judicial capacity. It does not look to see if there was a
   real likelihood that he would, or did, in fact favour one side at
   the expense of the other. The court looks at the impression which
   would be given to other people. (8)

For the second category, courts often see the accused's right to be present during trial (9) as important because the public would perceive the trial as unjust if it were conducted in the accused's absence. In R. v. Barrow, (10) the trial judge held interviews with jurors--out of the accused's earshot--in order to screen them for partiality. Chief Justice Dickson held that even if this procedure was legally permissible in a technical sense, its appearance to the average citizen meant that it could not be condoned:

   The argument of the Crown in this appeal does not address what may
   be the most important aspect of the case, namely, the appearance of
   justice. Even if the two-stage analysis of the empanelling process
   is a legally accurate description of the interplay of the Criminal
   Code and the Nova Scotia Juries Act, it leaves out of account the
   effect of the proceedings in this case as they would appear to the
   average citizen: prospective jurors were able to speak to the judge
   in private, albeit in open court, and be excused from jury duty
   with no reason given ... The average citizen watching would not
   likely appreciate the legal categorization of the judge's power to
   excuse for personal reasons ... The decision should not turn solely
   on the technical definition of when the trial began. (11)

Here, interestingly, public reaction weighs in favour of an interpretation of the law over another that may be more "legally accurate". Hence, public repute discourse can attenuate the strength of legal technicalities. I discuss the relationship between public repute discourse and the law below.

For the third category, courts often say that misconduct by an actor in the legal system other than a judge may bring the administration of justice into disrepute if the court fails to respond adequately to the misconduct. When the courts acquiesce to misconduct, it can appear to the public that they are aiding of condoning it. This causes the public to lose respect for the courts. The courts may not be actually aiding or condoning the misconduct, but they are acting in a way that gives the impression of doing so, and that is what is important, from the perspective of the repute of the administration of justice.

For example, misconduct by a prosecutor may constitute abuse of process. (12) Given the preceding discussion, it is appropriate that the test for abuse of process refers to the public reaction to the prosecutor's behaviour. (13) A court's finding of abuse of process may warrant a stay of the proceedings against the accused--that is, a halt to the current prosecution and a bar on further prosecution--and the test for whether a stay of proceedings is the appropriate remedy refers to public reaction too. (14) In addition, the test for whether police entrapment will entitle the accused to a stay of proceedings also focuses on the repute of the administration of justice. (15) Similarly, the test for whether a lawyer's conflict of interest warrants removing him from a retainer focuses on appearances. (16) Finally, the test for whether police trickery will render inadmissible a confession obtained thence, also focuses on whether the police trickery would "shock" the community. (17)

Courts emphasize that the remedy--whether exclusion of evidence or a stay of proceedings--gives the accused a benefit to which the merits do not entitle him, but which he must have, in order to safeguard the repute of the administration of justice. This is a higher value than the correct disposition of a single case. Thus, in R. v. Mack, Lamer J. wrote:

   It must be stressed, however, that the central issue is not the
   power of a court to discipline police or prosecutorial conduct
   but..."the avoidance of the improper invocation by the state of the
   judicial process and its powers". In the entrapment context, the
   court's sense of justice is offended by the spectacle of an
   accused's being convicted of an offence which is the work of the
   state. ... The court is, in effect, saying it cannot condone or be
   seen to lend a stamp of approval to behaviour which transcends what
   our society perceives to be acceptable on the part of the state.
   The stay of the prosecution of the accused is the manifestation of
   the court's disapproval of the state's conduct. The issuance of the
   stay obviously benefits the accused but the Court is primarily
   concerned with a larger issue: the maintenance of public confidence
   in the legal and judicial process. In this way, the benefit to the
   accused is really a derivative one. We should affirm ... that the
   basis upon which entrapment is recognized lies in the need to
   preserve the purity of administration of justice. (18)

Now let me briefly describe my two Canadian examples. First, the Canadian Criminal Code (19) provides that an accused may be detained before trial if detention is "justified". (20) The so-called "tertiary ground" for denial of bail in s. 515(10)(c) of the Code provides that pre-trial detention is justified when it is "necessary to maintain confidence in the administration of justice". (21) Here, the relevant statute expressly calls for public repute discourse. Observe, however, that even before the enactment of s. 515(10)(c), when the Criminal Code authorized pre-trial detention if the "public interest" warranted it, many courts understood "public interest" as referring to public confidence in the administration of justice. (22) In other words, even when the statute's text did not, on its face, call for an inquiry into public reaction to pre-trial release, some judges felt compelled to understand "public interest" in terms of the public's reaction to their decisions. (23)

Second, the Canadian Charter of Rights and Freedoms provides for the exclusion of unconstitutionally-obtained evidence when its admission would "bring the administration of justice into disrepute" (24) Though the public repute discourse in s. 24(2) is unique because of its constitutional status, it arguably represents a combination of elements from the second and third categories, since it concerns both procedural rights (the privilege against self-incrimination and "trial fairness") and misconduct ("seriousness of the breach").

Relevant Features of Public Repute Discourse

In all its various manifestations, public repute discourse possesses two identifiable features. Any account of public repute discourse must explain these two features--ideally, it would do so in a coherent way that relates them to each other. Public Repute Discourse Involves Repute in the Eyes of a Reasonable Person Inquiring into the public repute of the justice system requires answering the question, "Repute in whose eyes?" In other words, it requires identifying the relevant observer of the justice system. One answer would be that courts should concern themselves with their repute in the eyes of an average member of the community. This would give the question an empirical answer. As courts actually deploy it, however, public repute discourse gives an emphatically non-empirical answer.

All instances of public repute discourse hold that the observer of the legal system is a reasonable person. The relevant reaction is that of an idealized member of the public. The repute in which actual members of the public hold the legal system is not strictly relevant to public repute discourse. Like the reasonable person who appears in other legal doctrines, (25) the reasonable person for the purposes of public repute discourse is assumed to possess certain factual and normative understandings, which affect how he or she would respond to a particular judicial act.

Let me illustrate how the reasonable person figure operates in public repute discourse by referring to my examples. First, as I mentioned, judicial (26) disqualification for bias can occur without proof of actual bias. A reasonable apprehension of bias will suffice. The test for whether a reasonable apprehension of bias exists asks whether the judge would appear biased to the reasonable person. Thus, in Canada, the leading case on bias tells us that "the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information". (27) The test is "what would an informed person, viewing the matter realistically and practically--and having thought the matter through-conclude." (28)

This sentence illustrates the characteristics that courts impute to the reasonable person. These can be loosely placed into three categories: some relate to the general disposition of the reasonable person (he or she is reasonable, right-minded, and views the matter realistically and practically); some relate to the mode of decision-making (he or she applies herself to the question, and thinks the matter through); and others relate to the information employed (he or she has the required information, and is well-informed).

Not only Canadian courts invoke the reasonable person in the law of bias. In the United Kingdom, Lord Denning M.R. held that a reasonable apprehension of bias existed when "right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part". (29)

The leading American case of In re Drexel Burnham Lambert emphasizes the non-empirical nature of the inquiry into apprehension of bias and the importance of the reasonable person's perspective:

   Like all legal issues, judges determine appearance of
   impropriety--not by considering what a straw poll of the only
   partly informed man-in-the-street would show--but by examining the
   record facts and the law, and then deciding whether a reasonable
   person knowing and understanding all the relevant facts would
   recuse the judge. (30)

The opening phrase is particularly significant. The court clearly felt that public repute discourse--and its appeal to a non-empirical reasonable observer-reflects the general method of judicial decision-making and its significance reaches beyond those areas where it is obviously present. Below, I take the position that this view is correct and present an argument for why this is so.

Under s. 24(2) of the Charter, unconstitutionally-obtained evidence may be excluded when its admission would bring the administration of justice into disrepute. The s. 24(2) jurisprudence emphasizes that only disrepute in the eyes of the non-empirical reasonable person counts. In R. v. Collins, the leading case on this provision, Lamer J. saw that an empirical approach to s. 24(2) would be incompatible with the Charter's fundamental purpose, and, indeed, the purpose of the legal system in general:

   The concept of disrepute necessarily involves some element of
   community views, and the determination of disrepute thus requires
   the judge to refer to what he conceives to be the views of the
   community at large. This does not mean that evidence of the
   public's perception of the repute of the administration of justice,
   which ... could be presented in the form of public opinion polls,
   will be determinative of the issue. ... It would be unwise, in my
   respectful view, to adopt [such an] attitude with respect to the
   Charter.... The ultimate determination must be with the courts,
   because they provide what is often the only effective shelter for
   individuals and unpopular minorities from the shifting winds of
   public passion. The Charter is designed to protect the accused from
   the majority, so the enforcement of the Charter must not be left to
   that majority. (31)

Justice Lamer continued to state the test in positive terms:

   The approach I adopt may be put figuratively in terms of the
   reasonable person test ... the relevant question is: "Would the
   admission of the evidence bring the administration of justice into
   disrepute in the eyes of the reasonable man, dispassionate and
   fully apprised of the circumstances of the case?" (32)

These passages raise two important points. First, we may conclude that the reasonable observers involved in the determination of judicial bias and in the exclusion of unconstitutionally-obtained evidence are the same, since the factual and normative understandings attributed to each are substantially the same. Second, for Lamer J., the distinction between the actual reputation of the administration of justice and the reputation it enjoys in the reasonable person's eyes is crucial to reconciling s. 24(2) with the Charter's purpose asa rights-protecting instrument, and, indeed, with the general relationship between the courts and the community. (33) This second point seems to be consistent with our intuitive notion that if the only standard of justice or of a court's legitimacy was the public's actual approval of its actions--as determined by an opinion poll, for example--the court would not be worthy of the name, and what it applied would not be law.

A similar dynamic arose in R. v. Hall, (34) where the Supreme Court upheld the constitutionality of the "public confidence" ground for denying bail under s. 515(10) of the Criminal Code. (35) As in Collins, the distinction between reasonable persons and actual members of the public was crucial to reconciling the statute's appeal to public attitudes with constitutional values. Here, the question was whether the need to safeguard "public confidence" in the justice system constituted "just cause" for denying bail, as required by s. 11(e) of the Charter. The Supreme Court indicated clearly that if "public confidence" meant the confidence that the actual public had in the justice system, then the provision would be unconstitutional. As a basis for the denial of bail, the confidence of the actual public would be too vague, inconsistent with the presumption of innocence, and sometimes inconsistent with the actual facts of the case. The majority felt that the perspective of the reasonable person would avoid these problems. (36) Thus, McLachlin C.J.C. wrote:

   At the end of the day, the judge can only deny bail if satisfied
   that ... a reasonable member of the community would be satisfied
   that denial is necessary to maintain confidence in the
   administration of justice. In addition ... the reasonable person
   making this assessment must be one properly informed about the
   philosophy of the legislative provisions, Charter values and the
   actual circumstances of the case. (37)

Courts presume that the reasonable person takes the presumption of innocence to heart in other areas where public repute discourse appears. The same sentiment appears in R. v. R.D.S., an important recent case from the Supreme Court of Canada on reasonable apprehension of judicial bias. (38) There, Cory J. wrote that "[t]he reasonable and informed observer would know that the Crown at all times bore the onus of proving the offence beyond a reasonable doubt". (39)

Determining whether judicial acquiescence in misconduct by a non-judicial actor would bring the administration of justice into disrepute also involves a reasonable person standard. The question is closely related to the question, under s. 24(2), of when the repute of the administration of justice warrants excluding unconstitutionally-obtained evidence. (40) For example, the test for when a conflict of interest flowing from a prior retainer disqualifies a lawyer from acting in a matter inquires into "the possibility of real mischief"--where "mischief" means the misuse of confidential information imparted to the lawyer by a former client. According to the leading case on this issue, MacDonald Estate v. Martin, this approach

   is based on the precept that justice must not only be done but must
   manifestly be seen to be done. If, therefore, it reasonably appears
   that disclosure might occur, this test for determining the presence
   of a disqualifying conflict of interest is satisfied. (41)

The question of reasonable appearance is answered by invoking the reasonable person. Thus, in MacDonald Estate, "[T]he test must be such that the public, represented by the reasonably-informed person, would be satisfied that no use of confidential information would occur." (42)

Public Repute Discourse is Self-Reflexive But Not Empty

Recall that in Collins and Hall, the idealized features of the reasonable person, which distinguish him or her from the actual public, were crucial in reconciling the appeal to public attitudes with the legal system's fundamental values, including constitutional rights. In other words, there is an accord between the fundamental values of the legal system and the reasonable person's idealized features.

I will expand on this and show that many instances of public repute discourse indicate a connection between the ideal of the judicial role on one hand and the assumptions we make about the reasonable observer of the judicial role on the other. This suggests that, in general, the way in which the reasonable observer scrutinizes judges and his substantive expectations about judges' behaviour are the same.

In Collins, (43) Lamer J. recognized that the normative and factual assumptions we make about the reasonable observer of the legal system reflect traits we expect judges to possess. Thus, he reasoned, the best way for judges to take the reasonable person's perspective is to be faithful to the ideal of judicial behaviour:

   The decision is thus not left to the untrammelled discretion of the
   judge. In practice ... the reasonable person test is there to
   require of judges that they concentrate on what they do best:
   finding within themselves, with cautiousness and impartiality, a
   basis for their own decisions, articulating their reasons carefully
   and accepting review by a higher court where it occurs. It serves
   as a reminder to each individual judge that his discretion is
   grounded in community values, and, in particular, long term
   community values. (44)

The reasonable person and the judge share a mode of reasoning: cautious, impartial and justified by articulated reasons. Like the judge, the reasonable person is a representative of "long-term community values", but the former must, while the latter does, resist the "shifting winds of public passion".

An important English case on juror bias expressly supports the connection between the idealized reasonable observer of judges and the ideal of the judge. In R. v. Gough, a juror's impartiality was challenged when she realized, only after sentencing, that she lived next door to the accused. (45) At the House of Lords, Lord Goff pointed out the various similarities between the reasonable observer of the judicial system and the judge. First, the reasonable observer is assumed to be knowledgeable about "all relevant circumstances", but

   [s]ince ... the court investigates the actual circumstances,
   knowledge of such circumstances as are found by the court must be
   imputed to the reasonable man; and in the result it is difficult to
   see what difference there is between the impression derived by a
   reasonable man to whom such knowledge has been imputed, and the
   impression derived by the court, here personifying the reasonable
   man. (46)

Gough allows us to specify further the somewhat vague factual qualifiers from Committee for Justice & Liberty, where the reasonable observer is "well-informed" because he "obtain[s] thereon the required information". (47) The facts known by the reasonable observer are facts in evidence in court. In their factual knowledge, the ideal judge--only considering the facts in evidence--and the reasonable observer are identical. The same observation holds for the normative assumptions we make about the reasonable observer. Lord Goff held that this all means that "the court ... personifies the reasonable man". (48) Note that this only occurs if the court acts properly; we can make Lord Goff's observation more precise by saying that the reasonable observer of the judicial system personifies the ideal of the judge.

At this point, one might object that the "public" has disappeared from public repute discourse. Employing a reasonable observer to whom courts impute various normative and factual understandings, and then linking that reasonable observer to the ideal of the judge, boils down to judicial discretion. The reasonable observer will never disagree with the judge, since he is a fiction whom the courts define as they wish.

As an initial matter, this view is problematic because of the well-established tendency of judges to use this discourse. Its frequency of use suggests that it has some substantial role and that there is a difference between the justifiable reaction of the public and the judge's personal opinion. Indeed, in Collins, Lamer J. wrote that the reference in s. 24(2) about the repute of the administration of justice indicates precisely that "the decision is thus not left to the untrammelled discretion of the judge". (49)

Further, if invoking the reasonable observer's reaction accomplishes nothing else, at least it does imply an external perspective from which the judge's action must appear justified. Justification implies addressing an argument to an other in terms which one might reasonably expect the other to accept. A judge's individual conclusion may not convince the reasonable observer if it is based on facts or ideas which are not publicly accessible or widely accepted. For example, a judge's individual conviction that he is unbiased will not affect the reasonable observer's conclusion that the judge is biased, if facts exist which give rise to a reasonable apprehension of bias. If public repute discourse were self-reflexive in an empty way, imposing no more on the judge than that he satisfy himself that his conclusion is correct, then the perspective of an other would not be present at all. Yet it is.

In a preliminary way, we can see how the requirements of impartiality, reliance only on the evidence, and articulated reasons reflect the necessity of justification to an external observer. If the judge were biased--or even appeared to be biased--then the result would appear to be based on the judge's personal interests rather than on the merits. Bias undermines the credibility of the judge's other justificatory efforts in the eyes of the public. Second, the decision must be based on the facts put in evidence, since only those facts are accessible to the public; only they will be accepted as admissible justification for the decision. Third, the basis for the decision must be articulated--that is, accessible to the public--and cogent from the public's perspective. (50)

The Reasonable Person in Public Repute Discourse and in Negligence

It is possible, at this point, to compare the reasonable observer of the judicial system with the reasonable person from the law of negligence. The reasonable person in the law of negligence is a model of appropriate care, who figures in justifications of the normative conclusion that a defendant's act was a wrongful interference with a plaintiff's rights. (51) As in public repute discourse, the reasonable person in negligence law serves as a model of normative justification.

Clearly, the contexts in which the two tests operate are very different. The reasonable person in negligence is a model of the rightful interaction between individuals in a world where people sometimes injure each other unintentionally. The reasonable observer is a model of the rightful behaviour of judges and courts.

Nonetheless, there are similarities between the two. First, one cannot equate the reasonable person with the average person in the community--in many cases, the reasonable person might take more care than the average person. (52) Like the reasonable observer of the judicial system, the reasonable person from negligence law is a normative idealization rather than a straightforward reading of public attitudes and behaviour. Furthermore, the reasonable person of negligence law is neither an empty vessel into which judges may pour their individual ideas of what is a proper amount of care, nora quasi-Platonic ideal of proper care, unrelated to the care that real people take in particular situations. Thus, like the reasonable observer, the reasonable person refers to public attitudes without reflecting them in a purely empirical way. As I will discuss below, both are abstract personae--albeit corresponding to different relations--to whom legitimate obligations must be justified.

The Instrumental Rationale and Its Shortcomings

In General

Why should judges care about the reaction of the public to its actions or the confidence of the public in the administration of justice? The prevailing answer to this question is that an effective justice system requires public confidence, support, and cooperation. Public confidence requires that the justice system, beyond being just in itself, must appear just to the public. I will call this the instrumental rationale for the concern of judges with the public reaction.

This rationale is instrumental because it says that judges ought to attend to public concern not for reasons of justice itself, but because the justice system needs public confidence in order to realize its ends in society: to enforce its decrees and to gain public cooperation. Public confidence is a collateral phenomenon that is desirable because it promotes the ends of justice, while not relating to the nature of justice itself. This rationale presumes that the justice system could exist and be just without the public confidence it gains from appearing as just--it would merely not be as effective. When judges discuss this rationale, they often linguistically separate the actuality of justice from its appearance. (53)

In Hall, the Supreme Court of Canada invoked the instrumental rationale to uphold the constitutionality of the denial of bail under s. 515(10)(c) of the Criminal Code. For the majority, McLachlin C.J.C. wrote:

   To allow an accused to be released into the community on bail in
   the face of a heinous crime and overwhelming evidence may erode the
   public's confidence in the administration of justice. Where justice
   is not seen to be done by the public, confidence in the bail system
   and, more generally, the entire justice system may falter. When the
   public's confidence has reasonably been called into question,
   dangers such as public unrest and vigilantism may emerge. (54)

The last sentence illustrates the problem with the instrumental rationale: it fails to account for the non-empirical nature of public repute discourse. Obviously, unrest and vigilantism may emerge when the public's lack of confidence is entirely unreasonable. Indeed, one usually associates unrest and vigilantism with unreasonableness. If the point of consulting public attitudes is to promote public confidence in the justice system and ultimately to avoid unrest and vigilantism, one should consult actual public attitudes--whatever their reasonableness-rather than doing so only when they are reasonable. As we will see, this problem is inseparable from the instrumental rationale.

Courts also invoke the instrumental rationale in order to explain the focus on public attitudes in the law of bias:

   Courts must meticulously avoid any appearance of partiality, not
   merely to secure the confidence of the litigants immediately
   involved; but to retain public respect and secure willing and ready
   obedience to their judgments. ... Because appearances can be as
   damaging to public confidence in the courts as actual bias or
   prejudice, a trial judge must scrupulously avoid any appearance of
   bias or prejudice. (55)

Nevertheless, there is another rationale for the focus on appearances that is specific to the law of bias: courts say that it is necessary to look at apprehension of bias as an evidentiary shortcut to the fact of actual bias, because actual bias is difficult to prove directly. Both rationales are instrumental because they both acknowledge that a lack of actual bias is all that justice requires for itself. (56) For both, apparent lack of bias is only relevant for reasons that are collateral to justice itself--either the importance of public support for the justice system, or the practical difficulty of proving actual bias. (57)

The widely-cited American case of United Farm Workers of America, AFL-CIO u. Superior Court (Maggio, Inc.) invokes both rationales in parallel:

   The standard for disqualification ... is fundamentally an objective
   one. ... [D]ue to the sensitivity of the question and inherent
   difficulties of proof as well as the importance of public
   confidence in the judicial system, the issue is not limited to the
   existence of an actual bias. Rather, if a reasonable man would
   entertain doubts concerning the judge's impartiality,
   disqualification is mandated. To ensure that proceedings appear to
   the public to be impartial and hence worthy of their confidence,
   the situation must be viewed through the eyes of the objective
   person. [A] judge faced with a potential ground for
   disqualification ought to consider how his participation in a given
   case looks to the average person on the street. (58)

A combination of these rationales--the "actual confidence rationale" and the "evidentiary shortcut rationale"--is certainly internally inconsistent; each may dictate a different level of scrutiny of appearances. Thus, they cannot coherently justify the focus on public reaction for the purposes of bias.

In any case, the actual confidence rationale, taken alone, is inconsistent with public repute discourse as it actually is. If we took the actual confidence rationale seriously, we would only concern ourselves with actual public attitudes about whether or not the judge's situation would lead to impartiality; essentially, the "average person on the street" construction from United Farm Workers clearly aims at actual public attitudes. Yet, the normative and factual assumptions associated with public repute discourse--which United Farm Workers incorporates by invoking the "reasonable man"--clearly show that the object of inquiry is not the public's reaction as it actually is. (59) The "average man on the street" is neither necessarily "right-minded" nor "reasonable", and he may not have "the required information". Furthermore, the actual confidence rationale is certainly incompatible with the reasonable observer's limited focus on the ideal of the judicial role that we saw in Collins and Barrow: actual members of the public may expect certain substantive results from the justice system depending on their diverse sympathies.

One could respond to this argument and defend the instrumental rationale in two opposite ways. First, one might argue that judges should take actual public reaction into account and dispense with the reasonable person. On the other hand, shifting the focus to the actual public would cause pragmatic problems. Actual public opinions are indeterminate and volatile, and ascertaining them is often controversial. (60) More deeply, as I mentioned above, the idea that the actual reaction of the public should determine or even influence legal results seems inconsistent with the fundamental nature of law and justice. It would seem unfair if mere public attitudes could render meaningless what would otherwise be one's legal rights. Deciding according to actual public attitudes would be especially problematic in cases involving constitutional rights, where the purpose of the relevant legal regime is, in some sense, anti-majoritarian. (61)

Second, one might argue that courts should only concern themselves with the dangers of reasonable losses of confidence or justified vigilantism. This is what courts ultimately say, if one reads together the pervasiveness of the instrumental rationale and the emphasis on a well-informed and reasonable observer. Nonetheless, introducing these normative qualifiers on public reaction re-introduces the idealized reasonable person. Thus framed, the "actual confidence" instrumental rationale is not focused on actual confidence and has become non-instrumental.

Sometimes, courts justify focusing on the appearance of impropriety because of its usefulness as a prophylaxis against actual impropriety. (62) For example, making a reasonable apprehension of bias--rather than actual bias--the standard for disqualification may tend to deter judges from becoming involved in relationships which may ultimately result in their actual partiality. Nevertheless, this approach is problematic from the point of view of legitimacy. The effectiveness of prophylaxis per se, as well as how much of it is necessary to create the optimal level of deterrence, are debatable. Demonstrating them probably requires calculations which are beyond the court's institutional competence. Since this argument, ex hypothesi, recognizes no reason relating to justice itself for becoming concerned with apparent bias as beyond "actual bias", disqualification because of prophylaxis is open to challenge from the perspective of justice. The difficulties of calculating optimal prophylaxis in an adjudicative setting make the challenge hard to meet. (63)

Confidence in the Administration of Justice in R. v. Hall

At this point, we can critically examine the Supreme Court of Canada's treatment of public repute discourse in R. v. Hall. I will show that the use of public repute discourse and the reasonable person in Hall is inconsistent with the phenomenon generally, that the reasoning becomes unacceptably instrumental as a result, and that the tertiary ground cannot constitute "just cause" for denying bail as required by s. 11(e) of the Charter.

First, let us examine the Court's interpretation of the statute. Recall that McLachlin C.J.C. interpreted the tertiary ground to mean that bail could only be denied if a reasonable person, fully informed of the circumstances and taking the relevant Charter values to heart, would conclude that denying bail was necessary in order to protect society's confidence in the bail system and the administration of justice more generally.

Typically, the reasonable person observes the legal system. He or she reacts to apparent bias, of to the court's apparent condonation of unacceptable executive conduct. Here, the reasonable person observes society, which, in turn, reacts to the legal system. Typically, the reasons for a negative reaction to the legal system are contained within the reasonable person's mind, and are subject to her right-minded and well-informed nature. Here, however, since the reaction is situated within society, and the reasonable person merely observes that reaction, the reasons for the reaction are not subject to the strictures about facts and Charter values which McLachlin C.J.C. emphatically places on the reasonable person. The public could base its reaction on widespread falsehoods about the case, or on motives which are entirely inconsistent with the presumption of innocence. (64) In turn, the reasonable person could take those into account and conclude, dispassionately, that bail would pose a serious threat to public confidence in the administration of justice. The Hall majority uses public repute discourse, but dismembers it.

Indeed, the majority does not explain why the public would react negatively to bail for reasons not falling under the two existing grounds for denial of bail: to prevent the accused from interfering with the administration of justice of to prevent further crime. (65) Had the majority been consistent with past instances of public repute discourse, the reasonable person's insistence on cogent justification would have prevented this ellipsis. Chief Justice McLachlin writes:

   [I]t seems to me that the facts of this case ... offer convincing
   proof that in some circumstances it may be necessary to the proper
   functioning of the bail system and, more broadly of the justice
   system, to deny bail even where there is no risk the accused will
   not attend trial or may re-offend or interfere with the
   administration of justice.... The crime was heinous and
   unexplained. The evidence tying the accused to the crime was very
   strong. People in the community were afraid. (66)

It seems, however, that an accused tied to an inexplicable violent crime with very strong evidence would present a substantial risk of reoffending. Thus, Hall's facts arguably justify denying bail under the second "public safety" ground. In such a case, assuming the public's fear was reasonable, the reasonable person would have shared it. If the accused, however, posed no risk to the administration of justice or to public safety, the only plausible reason to favour denying bail i s as punishment, either as a scapegoat for a heinous crime, or as a shortcut to the sentencing which the accused is assumed to deserve. Punishing the accused in this way is incompatible with the presumption of innocence, so the reasonable person would reject it as a justification, but the actual public is not always so scrupulous. Hence the requirement in s. 11(e) of the Charter that the denial of bail always be justified, or done for "just cause". (67) The majority's judgment is incorrect for this reason, and it conceals its error by claiming, but failing, to employ the reasonable person whose reasoning the presumption of innocence constrains.

III PUBLIC REPUTE DISCOURSE AND THE PUBLIC JUSTIFICATION OF LEGAL RESULTS

Relations, Personae, Obligations, and Justification

The rule of law is a human moral relation in terms of rules and consequent obligations. (68) Private law transactions (69) and society as a system of political cooperation (70) are also human relations in terms of obligations.

The mode of relation itself is an abstract concept which many different particular instances of the relation may express. (71) Thus,

   while persons may have ... a variety of different kinds of
   relationship with others and move between them without confusion,
   the subject in a mode of relationship is always an abstraction, a
   persona, a person in respect of being related to others in terms of
   distinct and exclusive conditions. (72)

Some human relations may be relations of justice. Such a relation must involve some notion of equality; it must see those who are parties to it as equals in some way. (73) Intuitively, we would reject circumstances of inequality as incompatible with justice, such as if one party had a unilateral veto over the meaning of the relation of had more influence than the other. The equality involved in a relation of justice means that the personae involved in a relation of justice are equal, despite apparent differences between them. Their equality will have a different meaning depending on the relation at hand. (74) Thus, the rule of law, private law transactions, and political cooperation, as relations in terms of justice, all imply personae which are different, but which allow us to see the parties to each relationship as equals. (75)

Obligations are the substance of a relation of justice. Since an obligation is always an obligation to someone, obligations ate inherently relational--that is, an obligation presupposes a relation between persons in which it subsists. Thus, keeping in mind the equality which justice connotes, the legitimacy of an obligation cannot rest on grounds particular to one or the other party. A legitimate obligation must be justified on grounds which both parties share. The persona corresponding to the relevant relation provides the required common standpoint. (76)

In other words, a binding obligation must be justified from the perspective of the persona of the relevant relation. Since there is no necessary coincidence between the perspective of an actual party to the relation and the perspective of the persona, the actual party may reject a justification thusly framed. In such a case, however, the obligation may still be legitimate.

When an obligation is justified as acceptable to the relevant person in a particular relation, the justification is "public". (77) Public justification, in this sense, is a necessary and sufficient condition for the legitimacy of obligations. A mode of relation, a persona and a mode of justification of legitimate obligations are thus interrelated ideas. Let me describe briefly how the juridical and political relations conceive of these ideas before discussing the legal relation, which is my main subject.

Public Justification in The Political Relation

John Rawls developed the first and best-known explicit example of this argument and applied it to the basic structure of society. Rawls was concerned with the justice of the political relation between citizens in a democracy as participants in social cooperation. For Rawls, political arrangements and the coercion they entailed could only be legitimate (78) in a democracy, viewed as a scheme of social cooperation, if the arrangements could be agreed to by all citizens under certain fair conditions. (79) An actual agreement, however, would be neither possible nor fair:

   [W]e must specify a point of view from which a fair agreement
   between free and equal persons can be reached; but this point of
   view must be removed from and not distorted by the particular
   features and circumstances of the existing basic structure. (80)

Thus, the conditions of fair agreement require abstraction from actual circumstances; the parties to the political relation must be seen solely as free and equal personae with two moral powers. (81)

We may imagine these abstract citizens forming an agreement in a fictional conference--what Rawls termed the "original position". Reaching a fair agreement in our society, however, also requires abstracting from particular circumstances by restricting the reasons citizens may offer as they attempt to justify political arrangements to each other. (82) Only a justification "addressed to citizens as citizens" can adequately render legitimate a political arrangement of obligations. Thus, Rawls's theory of political justice contains instances of the interrelated ideas of a form of relation (political cooperation), persona (citizens as free and equal and possessing two moral powers), and obligation (political coercion). For this relation, as for all relations in terms of justice, obligations must be publicly justified in order to be legitimate--that is, justified from the point of view of participants to the relation imagined as equal persona, which is not the same as justification to actual persons.

Public Justification in Juridical Relations

In the relationships which ate the subject matter of private law, the relevant relations ate transactions in terms of ownership, exchange, and infringement. In contrast to Rawls's ideal citizen with two moral powers, the relevant persona has only one characteristic--personality--which is the capacity for purposive action abstracted from particular circumstances and particular purposes. (83) Persons thus conceived ate also equal, though here, too, the equality is not something imposed from without but merely the consequence of abstracting from particular situations and seeing the relation as between persona. (84) Various private law obligations--the obligation to respect another's person or property, the obligation to fulfill one's contracts--are justified in terms of that characteristic. Thus, first acquisition of a thing only occurs when my act signifies to others that I am capable of using the thing for my purposes:

   Since property is the embodiment of personality, my inward idea and
   will that something is to be mine is not enough to make it my
   property; to secure this end occupancy is requisite. The embodiment
   which my willing thereby attains involves its recognizability by
   others. (85)

"Recognizability" to others is equivalent to "publicly justified as acceptable to the relevant persona". To see this, note the difference between "recognizability" and "recognition". Recognition means that an actual person in fact recognizes something; recognizability means that a person, idealized in some way, could or would recognize something. Recognizability, in other words, implies an objective perspective, the perspective of a persona who recognizes.

Only the objective perspective of a persona provides a viable standard for the justification of obligations: to use the example of taking possession, to say that the claimant recognizes his own possession is merely to restate his claim. On the other hand, to say that the person contesting the claim does not recognize the claimant's possession is merely to restate his denial of the claim. Both perspectives involve particular characteristics of each party which the other does not share and would not accept as a basis for justification. If such circumstances did determine the obligation, the parties would not have equal standing and the relation in which the obligation subsisted could not be one of justice.

Obligations in contract and tort employ the same persona and the same mode of justification. The existence of a contract and its terms ate defined according to an objective standard. Indeed, under the objective standard, neither the offeror's actual understanding of what he has offered, nor the offeree's actual understanding of what he has been offered, directly determine the existence or terms of the contract. (86) The question is what a reasonable person, standing in the offeree's position, would have seen the offer as signifying. Contract illustrates that the "reasonable person" invoked in considering any relation of obligation is, in fact, the persona corresponding to the relation. Thus, drawing from my discussion of relation, personae, obligations and justification above, we see how "the idea of the reasonable person expresses a distinctive conception of normative justification". (87)

In the law of negligence, which I discussed earlier, the defendant is only responsible for the plaintiff's loss if the defendant caused the loss by imposing a wrongful risk on the plaintiff. Courts determine whether a particular risk was wrongful by taking the perspective of the reasonable person. We can say, then, that when the reasonable person would view the defendant's act as a wrongful interference with the plaintiff's rights, then the defendant--considered only as a persona--must accept that characterization of his own act. Thus, the remedial obligation is publicly justified.

Nevertheless, the juridical relation and corresponding conception of the person do not contain adequate normative resources to follow up on that justification. This is because, within the juridical relation, neither party--keeping in mind their equality--can actually adjudicate the dispute and impose a remedial obligation. (88) Their characteristics do not include the necessary capacity to judge or to recognize a legitimate act of judging. Remedies require introducing a new relation--the legal as developing from, yet distinct from, the juridical (89)--and, in turn, specifying the persona and mode of public justification which the new legal mode of relation implies. (90)

The Legal Relation

To be subject to the rule of law of a particular legal order is to participate in the legal relation. (91) This is also true of parties to a particular legal dispute within that order. There is no categorical difference, however, between the position of the parties and the position of any other subject of the legal relation. Although the suitors to the court may have interests in the outcome not shared by members of the public, the personae involved in the legal relation are abstracted from those interests. (92)

Thus, parties to a private law lawsuit are joined both in juridical and legal relations, which coexist. (93) Yet, these relations are distinct. It is important to attempt to distinguish them in the context of private law, because much work on the juridical relation in private law tends to conflate the legal and the juridical. (94) This is understandable, since the main subject of that theoretical work is private law, and these theorists argue persuasively that the fundamental ideas of private law reflect and express the juridical relation. (95) Nonetheless, and without denying this, one must keep in mind that private law is first and foremost law, and, therefore, a legal relation. In this regard, it is independent from and not subordinate to--though it is related to--the juridical. (96)

Thus, to say "the juridical relation gives private law its basic character" is to make a claim within the legal relation. Indeed, corrective justice theory insists that juridical ideas such as correlativity and personality are not legally relevant because of their external correctness as philosophical ideas. Rather, it holds that they are relevant because they are immanent in private law. (97) This is an argument about the legal relation.

The corrective justice theorist's passion for coherence--his "rage for order"-is also a legal argument. Corrective justice theory argues that since the juridical already has a fundamental place in private law, its role must not be arbitrarily qualified by non-juridical considerations. Private law must have one soul, so to speak. That argument, however, is also legal in character, not juridical; it is only incidentally about the juridical. Coherence within a legal system is a desirable quality of all law, not just private law. (98)

When viewed as a juridical relation, the plaintiff's action against the defendant "assert[s] that the two are connected as doer and sufferer of the same injustice" (99) in terms of rights and duties. Conversely, when viewed as a legal relation, the plaintiff alleges merely that "what has been said or done on a particular occasion ... [has] not ... subscribed adequately to an obligation imposed by law". (100) Under the juridical relation, the court's role is to articulate a transaction's meaning in terms of categories of right and duty; under the legal relation, the court's role is "considering actual performances solely in respect of their legality". (101) As I mentioned, in private law, the legal takes some of its content from the juridical. Thus, in private law, the two questions may have the same answer. Nevertheless, there are still two questions.

Although the juridical relation and the legal relation in private law may seem similar, recall that the former lacks the normative resources to adjudicate wrongs and pronounce remedies. Note also that the latter does not necessarily entail the correlative form that the former requires. (102) The juridical relation is a relation only of the parties to the transaction, whereas the legal relation covers all persons subject to the law. The parties to a particular legal dispute may have a heightened interest in the court adequately justifying the result, (103) but since the judge articulates the meaning of the law, which binds all, he must justify that articulation to the whole public. (104)

What, then, characterizes the persona corresponding to the legal relation? Under the rule of law, parties are related merely in terms of their mutual recognition of the law's authenticity and the obligations that make up the law's content. (105) Therefore, the persona corresponding to the legal relation has only the following two moral powers: (1) the capacity for self-chosen purposive action, (106) and (2) the power to ascertain the law's authenticity and the legal obligations authentic law attaches to such self-chosen action--in other words, "the meaning of the law". (107)

In the abstract, that a law be authentic seems merely to require that it be properly enacted. (108) Among other things, this may imply some formal requirements which Lon Fuller called "the morality which makes law possible", (109) such as avoiding vagueness, secrecy, (110) or retroactivity. (111)

Nonetheless, "law", in another sense, refers not only to the abstract enactment, but also to the concrete obligations that it imposes on actual activity. (112) Legal results, as well as abstract laws, must be the authentic meaning of the law (113) in order to have obligatory force. Expounding and justifying the link between the authentic law and the obligation which it purportedly entails is the job of the court. (114)

As with all relations in terms of obligation, this justification must be public; that is, it must be addressed to the characteristics of the persona corresponding to the relation. Thus, the second moral power of the persona corresponding to the legal relation must also include the ability to determine whether a court's articulation of the meaning of the law with respect to a particular transaction is itself authentic. A legal obligation is justified in the legal relation when its apparent authenticity satisfies the reasonable person implied by that relation.

As I mentioned earlier, the legal relation is distinct from the juridical relation. It is also distinct from the political relation. The persona in the legal relation is concerned merely with the authenticity of the law and the soundness of the court's exposition of legal obligations. In contrast, the persona in the political relation is concerned with whether the law is an incident of fair political cooperation. (115) This must be true, since the legal relation presupposes the existence of legislative and adjudicative offices. (116) The question of the existence or validity of those offices is simply not considered under the legal relation. (117) Further, under the legal relation, the legislator has no positive reason to actually make any law. The political relation, however, provides an account both of the legislator's legitimacy and of what might legitimately motivate him to make law. (118) Unfortunately, a further exploration of the complex relationships between these three forms of relation is beyond the scope of this article. (119)

The Public Justification of Legal Results

The persona corresponding to the legal relation is the reasonable observer of the legal system involved in public repute discourse, which the first half of this article discussed. As with all relations in terms of obligation, the reasonable person involved in public repute discourse represents a distinctive mode of normative justification. The reasonable observer illustrates the necessity of public justification of judicial action, as well as the mode in which that justification occurs.

When will the reasonable observer recognize a particular legal result as authentic? The relevant considerations fall into two categories: those concerning openness and cogency, and those concerning impartiality. Remember, authenticity here means only that the legal result accurately articulates the meaning of the law with respect to a particular act. It does not entail the law's desirability. Insofar as a law's desirability can ever be a criterion of justice, it falls to be defined and justified under the notion of justice associated with the political relation. (120)

Openness and Cogency

In order to be ascertainable as expounding authentic legal obligations, first, the court's proceedings must be open to the public. (121) A legal proceeding may satisfy this requirement in different ways, depending on context. The public has a right to be present during legal proceedings and to speak about them freely, because of its interest in the integrity of legal results in general. (122) Nevertheless, diverse considerations may mediate this right. On the other hand, the parties to a civil dispute have a higher interest in perceiving the proceedings as legitimate; thus, they have a right to be present that is less easily limited. The criminal accused has a higher interest again--although not a qualitatively different one--in perceiving the verdict as justified, and thus the court's very jurisdiction depends on her constant presence during the trial, subject to very stringent limitations. (123)

Second, the court's reasoning must be cogent from the reasonable observer's perspective. (124) This means, first, that the court's premises are either facts which are supported by trustworthy evidence, which is publicly presented and accessible, or facts which are so widely accepted that they are incontestable by reasonable people. These requirements reflect the reasonable person's factual knowledge: he or she is "well-informed" and considers "all relevant facts". Additionally, the court's reasoning must proceed via inferences which the reasonable observer recognizes as sound.

The law of evidence reflects these conditions of cogency. (125) Thus, the law of evidence requires that each item of admissible evidence be probative of a fact at issue in the proceedings that it is proffered to support. The standpoint from which a judge must evaluate probative value and relevance is not her subjective standpoint, but is the familiar standpoint of reasonable public recognizability: thus, information is probative with respect to a proffered inference if it "could reasonably be regarded" as making the inferred fact more likely to be true. (126)

The doctrine of judicial notice, which allows a judge to consider a fact in his or her decision without it being introduced in evidence and subject to cross-examination, is an integrated aspect of this view of evidence, rather than an exception. The test for judicial notice ensures that there is a public consensus as to the facts of which a judge takes judicial notice. (127) Since the test for judicial notice invokes the reasonable person, these facts are by their very nature accessible or recognizable as true from that person's perspective. The features of these facts--general acceptance or accessibility in sources of indisputable accuracy--act as functional substitutes for introduction in court and thereby satisfy the standard of public recognizability by a different route. Rather than being an exception to the idea that evidence is constituted by those facts that are recognizable to the persona corresponding to the legal relation, judicial notice goes toward showing the idea's essence. (128)

Impartiality and Independence

How does the requirement that the judge be and appear impartial reflect the requirement that legal results must be justified as authentic to

the public? Courts usually define bias by linking lack of bias to open-mindedness--that is, a willingness to be persuaded by the evidence. (129) This, in turn, links bias to the substantive criteria of cogency which the law of evidence serves to fulfill.

If the reasonable observer perceives the judge as biased, she will perceive the legal result which the judge delivers as not the authentic meaning of the law but a product of the judge's personal interests. Since the reasonable observer, as an abstract persona, will not share those interests, they will not carry any justificatory force with him or her. Bias makes justification to the reasonable observer impossible. Moreover, like the court's reasoning, impartiality itself must also be justified to the persona corresponding to the legal relation. This is why a reasonable apprehension of bias disqualifies a judge; when the reasonable observer of the judicial system perceives a judge as biased--despite the possible lack of "actual bias"--the judge has failed to justify himself as impartial. (130)

Judicial independence is a special case of impartiality in this broad sense; besides being impartial in general, it is especially important that courts be impartial as against other state actors. The legislative and executive branches of government are, respectively, the author and administrator of the law. It is a fundamental principle of legality that, in interpreting the law, the court cannot seek to promote directly the substantive interests of those branches. They can do so indirectly only if those interests are expressed in the law's content. (131) Therefore, the reasonable person would be particularly concerned about the impartiality that might result from insufficient independence of the courts from the rest of government. (132) Accordingly, the appearance of insufficient independence would operate to undermine the justificatory force of the court's other acts in the same way. Of course, for independence, "appearance" must equally mean appearance to the relevant persona--the reasonable person of public repute discourse. Thus, in British Columbia v. Imperial Tobacco, the Supreme Court of Canada wrote:

   The critical question is whether the court is free, and reasonably
   seen to be free, to perform its adjudicative role without
   interference, including interference from the executive and
   legislative branches of government. (133)

With respect to the exclusion of unconstitutionally obtained evidence under s. 24(2), two values are at play. First, evidence which would compromise trial fairness will usually cause the reasonable observer to lose respect for the administration of justice, and, accordingly, such evidence must be excluded. Fair trials are critically important to the general justificatory work of the administration of justice. (134)

The second purpose of s. 24(2) is related to judicial independence. As I mentioned earlier, even when admitting the evidence would not create an unfair trial, the court may exclude it in order to disassociate itself from serious constitutional violations on the part of state law enforcement actors. (135) If a reasonable observer would perceive the court's admission of evidence as complicity with illegal conduct, its credibility as a justifier of the law would suffer. (136) Furthermore, in a criminal proceeding, when the court's apparent independence from the state is especially important, perceived complicity with state illegal conduct would be especially damaging. (137) Moreover, regardless of whether the proceeding is criminal or not, the government's role as author and administrator of the law makes its wrongdoing especially serious. As Brandeis J. wrote in Olmstead v. U.S.:

   Will this court, by sustaining the judgment below, sanction such
   conduct on the part of the executive? ... In a government of laws,
   existence of the government will be imperilled if it fails to
   observe the law scrupulously. Our Government is the potent, the
   omnipresent teacher. For good or for ill, it teaches the whole
   people by its example. Crime is contagious. If the Government
   becomes a lawbreaker, it breeds contempt for law; it invites every
   man to become a law unto himself; it invites anarchy. To declare
   that in the administration of the criminal law the end justifies
   the means--to declare that the Government may commit crimes in
   order to secure the conviction of a private criminal--would bring
   terrible retribution. Against that pernicious doctrine this Court
   should resolutely set its face. (138)

Under this account, the court's concern with its "repute" in public eyes is not vanity or mere pragmatism. Since "repute" is repute in the eyes of the reasonable observer, the persona corresponding to the legal relation, the court is concerned with its very authority within that relation. (139)

Excluding evidence or giving the accused a stay of proceeding is difficult to reconcile with the popular conception of the trial's function--"truth-seeking". (140) Nonetheless, if we see the court's function as justifying a legal result as authentic, then "truth-seeking" becomes only a secondary virtue. If the court cannot justify its result as true to the public, then its "truth-seeking" efforts were in vain.

Self-Reflexivity, the Problem of Ideology, and Education

Our account of public repute discourse also allows us to explain the self-reflexivity of public repute discourse. Earlier, I observed that the characteristics of the persona involved in public repute discourse match the characteristics of the ideal judge. Therefore, the persona scrutinizing the judge reasons in the same way he expects the object of his scrutiny to reason. Without seeing public repute discourse as reflecting a requirement of justification, this aspect might seem mysterious.

Once we do, however, it becomes almost trivial. If legal results can only be justified as legitimate once framed as acceptable to persons imagined as legal personae, then it makes sense that the conditions this requirement places on judicial activity would be expressed both as an ideal of the judge and as an idealized reasonable person to whom judges imagine themselves appealing. The characteristics of the persona who justifies must match those of the persona who scrutinizes the justification.

After all this, it may still seem troubling that the judge's efforts are to be judged not by actual persons, but by imaginary personae. One might argue from this that public repute discourse--and, indeed, judicial justification in general--is ideological. On one hand, it holds out the idea that the courts are accountable, in some way, to the public. On the other hand, it renders the true public irrelevant through the use of the fictional reasonable person. I would respond to this in two ways. First, the alternative--making the courts' interpretation and application of the law subject to the actual public's approval of it--is, in some way, to fatally compromise the integrity of the law itself. Even in a democracy governed by the principle of majority-rule, the rule of law requires that the law govern disputes even in the event of a conflict with the majority's opinion. The majority's only option is to change the law, which would eliminate the conflict.

Second, the characteristics of the reasonable person are fundamental to even popular ideas of the fair application of law. Indeed, ordinary citizens would probably affirm them in general, if not in specific cases, if asked to reflect on their convictions. They would be especially likely to affirm them for everyone if reminded of the possibility that they, too, might one day require the law's assistance, as a civil plaintiff or defendant, or as a criminal accused.

One question remains: if all legitimate legal results must be justified to the persona represented by the reasonable person, then why does public repute discourse only appear in discrete areas of the law? Why is it not generally present in judicial reasoning? Public repute discourse need not be ubiquitous to indicate the general importance of publicly justifying legal results. As I have argued, the ideal of the judge, as well as other principles of adjudicative fairness, express the importance of public justification. It is possible that explicitly invoking the reasonable observer of judicial acts is only necessary when those ordinary principles are not sufficient.

One area where they are probably insufficient is bias. The initial decision on whether bias disqualifies a judge is usually made by the judge himself. It may be very difficult for a judge--relying on ordinary principles of impartial decision-making--to give the proper weight to the requirement that his lack of bias must be justified from an objective perspective. This is so even though those principles express the requirement of objective justification. Thus, the common law has developed the explicit objective standard for the determination of bias in order to make it easier for a judge to pay heed to the requirement of public justification. Thus, while the requirement of public justification applies to the legitimacy of all legal results, the principles of adjudicative fairness and the ideal of the judicial role express this requirement adequately in most cases. Explicit recourse to public repute concepts is only necessary in some cases, but those cases demonstrate the requirement most clearly.

An educational role for the courts might reduce the gap between the idealized persona, which courts' justificatory efforts imply, and the actual public. Public repute discourse might also reflect this role, as well as reflecting the requirement of public justification. Indeed, the courts' pronouncements on the importance of publicity support this hypothesis. In Edmonton Journal v. Alberta (Attorney General), (141) after invoking the "public confidence" rationale for considering public appearances, (142) Wilson J. wrote:

   It is also worth noting that there is an important educational
   aspect to an open court process. It provides an opportunity for the
   members of the community to acquire an understanding of how the
   courts work and how what goes on there affects them. Bentham
   recognized the importance of publicity in fostering public
   discussion of judicial matters ... and Wigmore pointed out ... that
   "[t]he educative effect of public attendance is a material
   advantage. Not only is respect for the law increased and
   intelligent acquaintance acquired with the methods of government,
   but a strong confidence in judicial remedies is secured which could
   never be inspired by a system of secrecy". (143)

In our society, where not all citizens affirm the values of legal justice as they are conceptualized in the reasonable person, the educational aspect of publicity is especially important. Rawls discussed the educational role of institutions which embody a conception of political justice; his comments are equally valid by analogy to the institutions which embody a conception of legal justice:

   [W]e noted the ... publicity condition and said that ... the
   political conception has an educational role. Those who grow up in
   such a society will in good part form their conception of
   themselves as citizens from the public political culture and from
   the conceptions of person and society implicit in it. They will see
   themselves as having certain basic rights and liberties, freedoms
   they can not only claim for themselves but freedoms they must also
   respect in others. Doing this belongs to their conception of
   themselves as sharing the status of equal citizenship. (144)

A standard of justice flowing either from a conception of abstract truth or from the unmediated attitudes of the public would not deserve the name. Justice must signify a synthesis of public attitudes in which no person is left behind or ignored. That synthesis is achieved by a process of reflective deliberation, and requires making the justice system available to the public. Synthesis is a two-way process: it requires openness both in order to hold the system accountable to a standard of public justification, and in order to educate and facilitate reflective deliberation amongst the public.

IV CONCLUSION

The courts' preoccupation with public appearances can seem puzzling and hard to justify. Surely, courts should concern themselves with actually doing justice, rather than worrying about appearing to do it. The concern with public appearances can seem especially problematic when it leads to a result which courts admit is incorrect if only the merits were considered, as it does when a court grants a stay of proceedings to a criminal accused because of prosecutorial misconduct. On the other hand, if worrying about appearances is worthwhile only in order to secure public satisfaction with, and obedience to, courts' judgments, then the standard of the reasonable person as the observer of public appearances is surely unjustifiable.

Exploring the idea of human relations ordered by a conception of justice helps resolve these problems. As I have identified it, the courts' appeal to public appearance pertains to one such relation--the legal relation--which is distinct from, but involved with, the juridical relation and the political relation. Like those other relations, the legal relation concerns the legitimacy of obligations between equal and abstract personae.

If we see courts not only as interpreting the law's meaning, but as justifying a particular obligation as the authentic meaning of the law, then the concern with public appearance becomes immediately easier to understand. In turn, we can see that the figure of the reasonable person is simply the persona corresponding to the legal relation, to whom justifications of legitimate legal obligations must be addressed. Several familiar features of adjudication are best explained as aimed at publicly justifying legal results as authentic to this persona.

* This article was first presented at the Third Annual Conference on Student Publishing in Law held by the University of Toronto Faculty of Law Review on February 29, 2008. The author would like to thank Peter Benson, for whose Jurisprudence course this paper was written, for his constant support, and for many discussions. The author would also like to thank participants at the conference seminar for their helpful comments.

(1) 2002 scc 64, [2002] 3 S.C.R. 309,217 D.L.R. (4th) 536, 167 C.C.C. (3d) 449 [Hall].

(2) Many of these values find expression in the Latin maxim nemo judex in sua causa ("no one should be a judge in his own cause").

(3) The corresponding Latin maxim is audi alteram partem ("hear the other side").

(4) Canadian Charter of Rights and Freedoms, s. 24(2), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].

(5) The same issue appears in the United States with respect to the statutory provisions governing disqualification and recusal of federal judges under 28 U.S.C. [section][section] 144 and 455 (2000). I discuss the interpretation of these provisions at 204, below.

(6) For example, Roberts v. R., 2003 SCC 45, [2003] 2 S.C.R. 259, 231 D.L.R. (4th) 1 (sub nom. Wewaykum Indian Band v. Canada) at paras. 57, 62-66 [Wewaykum]. Courts and commentators say that the relevance of reasonable apprehension of bias, as opposed to actual bias, flows from a "broader preoccupation about the image of justice": see e.g. Wewaykum at para. 66.

(7) [1924] 1 K.B. 256 at 259 [SussexJustices].

(8) Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [1969] 1 Q.B. 577 at 599, Lord Denning M.R. [Lannon].

(9) At common law, conducting any portion of the trial without the accused present destroys the court's jurisdiction over the offence. This right has been partially codified in ss. 650(2) and 475 of the Criminal Code, infra note 19, and constitutionalized in s. 7 of the Charter, supra note 4. See R. v. Barrow, [1987] 2 S.C.R. 694, 45 D.L.R. (4th) 487, 38 C.C.C. (3d) 193 [Barrow].

(10) Barrow, ibid. See also R. v. Tran, ]1994] 2 S.C.R. 951.

(11) Barrow, ibid. at para. 35 [emphasis added].

(12) On abuse of process in the criminal context, see Andrew Choo, Abuse of Process and Judicial Stays of Criminal Proceedings (Clarendon: Oxford UP, 1993), updated in Andrew Choo, "Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited" [1995] Crim. L. Rev. 864. See also David M. Paciocco, "The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept" (1991) 15 Crim. L. J. 315, and Paul Calarco, "Remedies for Inquisitions: Stopping Crown Misuse of Court Process" (2001) 43 C.R. (5th) 148.

(13) For example, in R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, 209 D.L.R. (4th) 41, 161 C.C.C. (3d) 97 at para. 104, LeBel J. stated: "I conclude that, based on the evidence of judge shopping, pre-charge Crown interviews, the improper police announcement, and the addition of count 16 in the direct indictment, the cumulative effect of these actions, while troubling in some respects, does not rise to the level of abuse of process which is egregious, vexatious, oppressive or which would offend the community's sense of decency and fair play."

(14) For example, ibid. at para. 107: "All told, even if this conduct did amount to abuse, it falls at the low end of the spectrum of seriousness, and is not significant enough that proceeding in its wake would, in and of itself, shock the community's sense of fairness and decency."

(15) For example, R. v. Mack, [1988] 2 S.C.R. 903, 44 C.C.C. (3d) 513, Lamer J. [Mack].

(16) In MacDonald Estate v. Martin, Sopinka J. wrote: "The courts, which have inherent jurisdiction to remove from the record solicitors who have a conflict of interest, are not bound to apply a code of ethics. Their jurisdiction stems from the fact that lawyers are officers of the court and their conduct in legal proceedings which may affect the administration of justice is subject to this supervisory jurisdiction .... The statement reflects the principle that has been accepted by the profession that even an appearance of impropriety should be avoided." [1990] 3 S.C.R. 1235 at para. 21 [MacDonald Estate].

(17) See R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3,190 D.L.R. (4th) 257, 147 C.C.C. (3d) 321 at para. 67: "There may be situations in which police trickery, though neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community."

(18) Mack, supra note 15 at para. 77 [emphasis in original].

(19) R.S.C. 1985, c. C-46 [Criminal Code], as am. by Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 59.

(20) Section 515(1) reads: "where an accused who is charged with an offence...is taken before a justice, the justice shall ... order ... that the accused be released ... unless the prosecutor ... shows cause...why the detention of the accused in custody is justified". This background rule is subject to numerous qualifications but they are not relevant to my argument.

(21) In Hall, supra note 1, a majority of the Supreme Court of Canada held that the "public confidence" ground for denial of bail does not violate s. 11(e) of the Charter, supra note 4, which guarantees the right not to be denied "reasonable bail" without "just cause". I discuss s. 515(10)(c) and the Hall decision at 198, below.

(22) See e.g.R.v. Powers (1973), 9 C.C.C. (2d) 533 (Ont. H.C.), R. v. Lamothe (C.A.Q.) (1990), 58 C.C.C. (3d) 530 (Que. C.A.) and R. v. Dakin, [19891 O.J. No. 1348 (C.A.). The Supreme Court found that the "public interest" ground was unconstitutionally vague and severed it from the section in R. v. Morales, [1992] 3 S.C.R. 711, 77 C.C.C. (3d) 91.

(23) This suggests that invoking the public repute of the administration of justice to reach a different legal result than the merits indicate may be normatively more secure than invoking "public policy" in a broader sense.

(24) Charter, supra note 4, s. 24(2). The leading case on when the admission of evidence would bring the administration of justice into disrepute is R. v. Collins, [1987] 1 S.C.R. 265 [Collins]. Collins contains an extensive discussion of how courts must understand the observer of the justice system for the purposes of analyzing the impact of the admission of unconstitutionally-obtained evidence. I discuss Collins at 197, below. As Robert Bloom points out in "Judicial Integrity: A Call for its Re-emergence in the Adjudication of criminal Cases" (1993) 84 J. Crim. L. & Criminology 462 at 467-71, concerns about judicial integrity were behind the early approach to the Fourth Amendment's exclusionary rule; however, later cases criticized the "judicial integrity" rationale and held that the rule's true purpose was to deter illegal searches and seizures.

(25) I discuss the relationship between the reasonable person in the law of negligence and the reasonable person who appears in public repute discourse at 202, below.

(26) Any adjudicative decision-maker is vulnerable to challenge for bias. This includes administrative tribunal members and jurors. I use "judge" throughout for simplicity.

(27) Committee for Justice & Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716 at para. 40, Grandpre J. [Committee for Justice & Liberty].

(28) Ibid. at para. 19, citing Committee for Justice & Liberty v. Canada (National Energy Board), [1976] 2 F.C. 20, 9 N.R. 150 (C.A.) at para. 20.

(29) Lannon, supra note 8 at 599 [emphasis added].

(30) 861 F.2d 1307 (2d Cir. 1988) at 1313 [internal references omitted; emphasis added].

(31) Collins, supra note 24 at para. 43. In these quotations from Collins, Lamer J. quotes approvingly from an article by Prof. Yves-Marie Morissette, "The Exclusion of Evidence under the Canadian Charter of Rights and Freedoms: What to Do and What Not to Do" (1984) 29 McGill L.J. 521. The distinction between Lamer J.'s own writing and his quotations from Prof. Morissette's article are of little consequence since later decisions see Lamer J. as adopting Prof. Morissette's language as part of the test for s. 24(2). For a discussion of the purpose of s. 24(2) by the author of Collins, see Antonio Lamer, "Protecting the Administration of Justice from Disrepute: The Admissibility of Unconstitutionally Obtained Evidence in Canada" (1998) 42 St. Louis U.L.J. 345. For an approach to s. 24(2) jurisprudence from the perspective of actual public attitudes, see Alan W. Bryant et. al., "Public Attitudes Towards the Exclusion of Evidence: Section 24(2) of the Canadian Charter of Rights and Freedoms" (1990) 69 Can. Bar Rev. 1.

(32) Collins, ibid. at para. 44.

(33) Justice Lamer seems to say that all legal tests must abstract somewhat from the actual views of the community.

(34) Supra note 1.

(35) Supra note 19, s. 515(10).

(36) Let me leave aside, for now, the question of whether or not this reasoning is correct.

(37) Hall, supra note 1 at para. 41 [internal references and quotation marks omitted; emphasis added].

(38) R.v.S.(R.D.), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193, 118 C.C.C. (3d) 353 [R.D.S.].

(39) Ibid. at para. 155, Cory J., concurring in the result.

(40) Roughly, the s. 24(2) inquiry focuses on two ways in which admitting unconstitutionally-obtained evidence may bring the administration of justice into disrepute: first, by causing the trial to become unfair, and second, by constituting judicial condonation of unacceptable police conduct. The second concern is what is involved in the cases involving police trickery and abuse of process. See Collins, supra note 24 at para. 42. The operative "misconduct" in the s. 24(2) cases is the Charter violation; in the common law cases it is the misconduct simpliciter. Also, the "community shock" test which prevails in the common law is a higher threshold than the "disrepute" threshold in s. 24(2). See Collins, supra note 24 at paras. 52-54.

(41) MacDonald Estate, supra note 16 at para. 22 [emphasis added]. Notice the iconic language from the bias case of Sussex Justices, supra note 7, being applied as a principle in a different context. This supports my contention that public repute discourse is a unified phenomenon across the many diverse areas in which it appears.

(42) MacDonald Estate, ibid. at para. 47 (emphasis added).

(43) Collins, supra note 24.

(44) Ibid. at para. 45 [internal references and quotation marks omitted]. Again, in his comments about the judge's discretion, Lamer J. connects the judge's role in an area of law which explicitly calls for public repute discourse (i.e, s. 24(2) of the Charter) and the judge's role in all adjudicative actions.

(45) [1993] 1 A.C. 646 (H.L.) [Gough].

(46) Ibid. at 667-668, Lord Goff.

(47) Committee for Justice & Liberty, supra note 27 at para. 40.

(48) Supra note 45 at 670.

(49) Collins, supra note 24 at para. 45.

(50) See R. v. Sheppard, 2002 SCC 26, [20021 I S.C.R. 869 on the circumstances when a trial judge's reasons will be so inadequate as to constitute an error of law. At para. 22, Binnie J. states that "[t]here is a general sense in which a duty to give reasons may be said to be owed to the public rather than to the parties to a specific proceeding". At para. 24, he writes that "the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be."

(51) See Ernest Weinrib, The Idea of Private Law, (Cambridge: Harvard UP, 1995) at 147-52.

(52) See e.g. The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932) at 740, per Learned Hand J.: "Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure. ... Courts must in the end say what is required." See also Arthur Ripstein, Equality, Responsibility, and the Law, (Cambridge UP, 1999) at 7 [Ripstein], where he writes: "The reasonable person is neither the typical nor the average person. Nor is the reasonable person to be confused with the rational person."

(53) See e.g. People v. District Court In and For Third Judicial Dist., 560 P.2d 828 (Colo. 1977) at 831 [People v. District Court: "Moreover, not only the actuality of fairness must concern us, but the appearance of fairness as well."

(54) Hall, supra note 1 at para. 26 [emphasis added].

(55) People v. District Court, supra note 53 at 831-33.

(56) Indeed, one could construct versions of the evidentiary rationale that apply to the occurrences of public repute discourse in other areas of the law. For example, we could propose that we look at public reaction to bail for criminal accused not because it is relevant in itself, but because it is an evidentiary shortcut we use to avoid the inquiry into whether or not the accused poses a threat to the public. This reasoning seems needlessly convoluted and cannot adequately explain the focus on public reaction (courts address difficult evidentiary issues constantly without needing to employ a fiction of reasonable appearance--as in the area of mens rea, for example). In particular, observe that the appearance of bias or the impact of bail on confidence in the administration of justice is sometimes determinative of issues and cannot be rebutted by evidence of the allegedly "real" matter of inquiry (e.g. actual bias).

(57) The Supreme Court of Canada endorsed the evidentiary rationale in a leading case on judicial bias, R.D.S., supra note 38. At para. 91, Cory J., for a plurality of the Court, wrote: "It has long been held that actual bias need not be established. This is so because it is usually impossible to determine whether the decision-maker approached the matter with a truly biased state of mind." [Internal references omitted.] Nonetheless, Cory J. also endorsed the actual confidence rationale.

(58) 170 Cal.App.3d 97 (4th Cir. 1985) at 104 [United Farm Workers][quotation marks and internal references omitted; emphasis added].

(59) For example, Wewaykum, supra note 6 at para. 60, quoting the leading Canadian case on the objective standard for reasonable apprehension of bias, Committee for Justice & Liberty, supra note 27 at para. 40, Grandpre J. See also Lannon, supra note 8 at 579, Lord Denning M.R.

(60) Courts have a profound antipathy towards considering opinion polls.

(61) See my discussion of the reasonable person in the constitutional context in Hall and Collins at 197 and 198, above. As I mentioned, the Charter context simply brings out more vividly the implicitly anti-majoritarian character of all law. Note, however, that I am not attacking majoritarian democracy. I am simply saying that once a law is enacted, legality means that applying it should not depend on public sentiment.

(62) See "Satisfying the 'Appearance of Justice': The Uses of Apparent Impropriety in Constitutional Adjudication", Note, (2004) 117 Harv. L. Rey. 2708 ["Apparent Impropriety"], which focuses on the American courts' use of public repute concerns to either justify infringements on constitutional rights or to shield those rights from infringement.

(63) I take the argument from legitimacy from "Apparent Impropriety", ibid. at 2714-17, which accepts the prophylaxis rationale in general. The article's primary focus is the use of public repute discourse in constitutional rights adjudication, where the legitimacy concern is obvious. In addition, however, it is applicable to the legitimacy of all adjudicative proceedings: "Those who question the legitimacy of judicially crafted prophylactic rules might become more skeptical as the link between the conduct prohibited and the conduct 'actually' targeted becomes more attenuated. And even those who generally accept the ubiquity and legitimacy of judicially crafted prophylactic rules might become more doubtful as prophylaxis progresses from an evidentiary dragnet to a mechanism for structuring incentives." Ibid. at 2721.

(64) For example, the public could be motivated by a desire to express its anger at a heinous crime by punishing the accused as a scapegoat; a desire to dispense with the procedural niceties of the criminal trial and punish the defendant as soon as possible.

(65) Justice Iacobucci, in dissent, wrote that "there was no indication that the bail system was in need of a tertiary ground in addition to the two traditional grounds for denying bail" and noted that in oral argument, Crown counsel were "hard pressed to raise even a convincing hypothetical scenario which called for pre-trial detention for reasons other than [the existing grounds]". See Hall, supra note 1 at paras. 82-83 [emphasis in original].

(66) Ibid. at para. 25.

(67) Charter, supra note 4, s. 11(e). Irrational fears might conceivably justify a s. 11 (e) violation under s. 1 of the Charter, but it is improbable. The test for the justification of infringements on Charter rights requires a rational connection between the infringement and the legislative objective. If "rational" means that the reaction of the public which the legislation seeks to prevent must be rational, then the violation would fail this step of the test. If, on the other hand, "rational" means that it is rational to conclude that denying bail is necessary to prevent irrational fears, then the violation would pass this step of the test. See R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, 24 C.C.C. (3d) 321.

(68) Michael Oakeshott, "The Rule of Law" in On History and Other Essays (Oxford: Basil Blackwell, 1983) at 136: "The expression 'the rule of law', taken precisely, stands for a mode of moral association exclusively in terms of the recognition of the authority of known, non-instrumental rules (that is, laws) which impose obligations to subscribe to adverbial conditions in the performance of the self-chosen actions of all who fall within their jurisdiction.... Like all other modes of association it is an abstract relationship of personae--persons solely in respect of being alike and without exception the subjects of these obligations to each other." [Emphasis added.]

(69) I draw on G.W.F. Hegel's account in The Philosophy of Right, trans, by T.M. Knox (Oxford UP, 1952).

(70) I draw on John Rawls's account in Justice as Fairness: A Restatement, (Cambridge: Harvard UP, 2001) [Justice as Fairness], and "The Idea of Public Reason Revisited" in The Law of Peoples, (Cambridge: Harvard UP, 1999).

(71) Here I follow Michael Oakeshott's account, supra note 68, of human relations, corresponding personae, and the rule of law as one such relation.

(72) Ibid. at 120 [emphasis in original].

(73) One way to express this idea is to analogize from Rawls's idea of all citizens being freestanding sources of claims: Justice as Fairness, supra note 70 at 23-24. In general, the equality which justice connotes means that every person is a freestanding source of claims.

(74) Aristotle identified justice in general with equality, but recognized that just as mathematics employs different conceptions of equality (or, more accurately, different "equivalence relations"), different conceptions of justice could be identified with the different conceptions of equality they employed. See Aristotle, Nicomachean Ethics, Book V, c. 2-5, 1130a-1133b (trans. by Harris Rackham (Cambridge, Mass.: Harvard UP, 1934): "If then the unjust is the unequal, the just is the equal--a view that commends itself to all without proof; and since the equal is a mean, the just will be a sort of mean too" (1131a.1). "[Corrective justice] is of a different sort from the preceding. For [distributive justice] always conforms with the proportion we have described (since when a distribution is made from the common stock, it will follow the same ratio as that between the amounts which the several persons have contributed to the common stock); and the injustice opposed to justice of this a kind is a violation of this proportion. But the just in private transactions, although it is the equal in a sense (and the unjust the unequal), is not the equal according to geometrical but according to arithmetical proportion" (1131b-1132a). I suggest that any conception of justice must also contain a conception of freedom, as well as equality.

(75) For the rule of law, see Oakeshott, supra note 68 at 136, quoted above.

(76) Peter Benson, "The Basis of Corrective Justice and its Relation to Distributive Justice" (1992) 77 Iowa L. Rev. 515 at 561: "[Personality] articulates a perfectly general and common standpoint ... which is wholly unqualified by anything that is merely particular or contingent. It constitutes, then, a standpoint from which objective normative judgments can be made." See also at 571: "[T]he normative validity of an action is decided, not by reference to its author's subjective intentions, purposes and understandings as such, but in terms of conditions of respect that one ought reasonably to subscribe to when one's actions can impinge on another. The standpoint of evaluation is public and relational."

(77) Here I draw on Peter Benson's key insight that John Rawls's idea of public political justification may be analogically applied to other relations, in particular, to private law relationships. In his article, "The Idea of a Public Basis of Justification for Contract" (1995) 33 Osgoode Hall L.J. 273 ["Public Basis of Justification"], Benson sought to specify the conception of the person presupposed in contract law (the "juridical" persona) and the corresponding mode of public justification which would make contractual obligations legitimate. Benson writes, at 305: "A justification is public if it is framed to be acceptable, as a matter of reason and principle, to individuals considered as legal or political personae. A public justification is legal or, more exactly, juridical if it addresses individuals in their role as parties to voluntary and involuntary transactions in which they figure as bearers of rights and correlative duties that may be coercively enforced. On this view then, a public juridical justification of contract postulates, first, a certain conception of the person with characteristic and defining features and second, a certain kind of social relation which is distinct from other kinds of relations, for example, political or familial association." [Emphasis in original.]

Ernest Weinrib describes the necessity for private law to justify itself publicly in "Publicness and Private Law" in Hoke Robinson & Gordon Brittan, eds., Proceedings of the Eighth International Kant Conference, vol. 1, pt. 1 (Milwaukee: Marquette UP, 1995) 191 at 196: "For private law to be an exercise of public reason, there must be a publicly available justification not merely of why the law takes something from the defeated defendant of gives something to the victorious plaintiff, but why in every case liability consists in the law's giving to one party what it takes from the other. Moreover, this publicly available justification must be consistent with the institutional framework of private law: since private law is administered by courts, the justification must draw on facts and embody reasons that are within the limited institutional competence of the judiciary."

For an application to negligence law, see Jason Neyers, "Donoghue v. Stephenson and the Rescue Doctrine: A Public Justification of Recovery in Situations Involving the Negligent Supply of Dangerous Structures" (1999) 49 U.T.L.J. 475. For an application to copyright law, see Katie Sykes, "Towards a Public Justification of Copyright" (2003) 61 U.T. Fac. L. Rey. 1.

(78) Justice as Fairness, supra note 70 at 40-41: "These two points give rise to a problem of political legitimacy. For if the fact of reasonable pluralism always characterizes democratic societies and if political power is indeed the power of free and equal citizens, in the light of what reasons and values--of what kind of a conception of justice--can citizens legitimately exercise that coercive power over one another?"

(79) Ibid. at 15: "Justice as fairness [holds that] the fair terms of social cooperation are to be given by an agreement entered by those engaged in it.... Now this agreement, like any other, must be entered into under certain conditions if it is to be a valid agreement from the point of view of political justice. In particular, these conditions must situate free and equal persons fairly."

(80) Ibid.

(81) For the political conception of persons as free and equal with two moral powers, see ibid. at 18-24.

(82) Ibid. at 17: "We are to think of [the original position] as modeling two things: First, it models what we regard--here and now--as fair conditions under which the representatives of citizens, viewed solely as free and equal persons, are to agree to the fair terms of cooperation whereby the basic structure is to be regulated.... Second, it models what we regard--here and now--as acceptable restrictions on the reasons on the basis of which the parties, situated in fair conditions, may properly put forward certain principles of political justice and reject others."

(83) See Ernest Weinrib, "Correlativity, Personality and the Emerging Consensus on Corrective Justice" (2001) 2 Theor. Inq. L. 107 ["Emerging Consensus"]. See also Peter Benson, "Rawls, Hegel and Personhood: A Reply to Sibyl Schwarzenbach" (1994) 22 Political Theory 491, where he distinguishes between the juridical conception of the person presupposed in private law relations and the political conception of the person presupposed in political relations of cooperation.

(84) Hegel, Philosophy of Right, supra note 69 at para. 49R: "If at this stage we may speak of more persons than one, although no such distinction has yet been made, then we may say that in respect of their personality persons are equal. But this is an empty tautology, for the person, as something abstract, has not yet been particularized or established as distinct in some specific way."

(85) Ibid. at para. 51 (emphasis added).

(86) "Public Basis of Justification", supra note 77 at 307: "Whether or not the parties have [manifested their assent to identical terms] is determined from an objective point of view, irrespective of what a party may have actually wanted or intended."

(87) Ripstein, supra note 52 at 8. I agree with Ripstein. Indeed, my argument is that this is true in the legal relation as well as in the political and juridical relations, and that the reasonable observer of the justice system is the reasonable person for the legal relation.

(88) Hegel, Philosophy of Right, supra note 69 at para. 86: "The recognition of rightness by the parties is bound up with their opposed particular interest and point of view." For the parties, "the will is not yet present here as a will so freed from the immediacy of interest as, despite its particularity, to have the universal will for its aim; nor is it yet at this point characterized as a recognized actuality of such a sort that in face of it the parties would have to renounce their particular interest and point of view."

(89) See "Public Basis of Justification", supra note 77 at 305. Benson appears to acknowledge the possibility of a distinction between the legal and the juridical: "A public justification is legal of, more exactly, juridical...." Nevertheless, his account of a public basis of justification of contract law focuses on juridical relations, a corresponding juridical Conception of the person, and juridical justification of obligations. As I argue, the legal is distinct from the juridical, and the juridical justification of contractual obligations is necessary, but not sufficient, for the justification of those obligations as enforceable legal obligations.

(90) See Hegel, Philosophy of Right, supra note 69 at para. 220. Hegel expresses the transition from the juridical ("abstract right") to the legal ("the administration of justice") relation as follows: "Instead of the injured party, the injured universal now comes on the scene, and this has its proper actuality in the court of law."

(91) In Oakeshott's terms, supra note 68 at 147: "[a]ssociation in terms of the rule of law".

(92) Oakeshott, ibid. at 146: "[s]uitors to this court are persona related in terms of the rule of law and, like the court itself, have no 'interests'." This sentence not only illustrates the abstraction involved in imagining the parties as persona under the legal relation, but also indicates the identity between the persona of the court, which applies the law and justifies the result, and the personae of the parties and public, who scrutinize and respond to that justification. 1 discuss this identity supra between notes 43 and 44.

(93) See ibid. at 127: "The players of a game are ... related in two categorically distinct modes of association."

(94) One arguable flaw in Benson's account of the public justification of contract law is that it conflates the juridical and the legal form of relation, both of which coexist in the relationship of parties to a contract dispute. See "Public Basis of Justification", supra note 77 at 306: "A public juridical justification also postulates, even if provisionally, a certain kind of institution as the appropriate authoritative source of norms and procedures for the governance of the parties: it addresses individuals in their capacity as parties to a civil suit before a court of law. If a normative idea or matter of fact is not suitable for application in such an institutional setting, it cannot be part of the public justification." Only the legal relation postulates a certain institutional setting for the governance of the parties; the legal relation, not the juridical, addresses individuals "in their capacity as parties to a civil suit before a court of law". Thus, the constraints that the court's institutional structure places on its reasoning flow from the legal, not from the juridical.

(95) See "Emerging Consensus", supra note 83.

(96) In "Publicness and Private Law", supra note 77 at 194, Weinrib appears to disagree when he writes: "Only when a public authority determines and enforces the parties" rights do these rights become external in their form as well as in their matter. Kant insists that the third moment does not add to the rights and duties of the second but merely imbues them with a public form."

(97) "Emerging Consensus", supra note 83 at 111-12 and "Public Basis of Justification", supra note 77 at 305-06.

(98) Indeed, coherence is a desirable quality across a legal system; that is, judges strive to achieve coherence between private law and other areas of law. Coherence in this broader sense may require qualifying corrective justice and the juridical relation, even as they continue to govern private law's internal nature. Demonstrating that this does indeed occur is beyond the scope of this article.

(99) Ernest Weinrib, "Corrective Justice in a Nutshell" (2002), 52 U.T.L.J. 349 at 351. See also "Emerging Consensus", supra note 83 at 116: "Because liability treats the parties as doer and sufferer of the same injustice...."

(100) Oakeshott, supra note 68 at 144.

(101) Ibid. See also B.C. v. Imperial Tobacco, 2005 SCC 49, [2005] 2 S.C.R. 473 at para. 50: "The primary role of the judiciary is to interpret and apply the law, whether procedural or substantive, to the cases brought before it. It is to hear and weigh, in accordance with the law, evidence that is relevant to the legal issues confronted by it, and to award to the parties before it the available remedies."

(102) Law only takes a correlative form when it expresses the juridical relation, as it does in private law. Even then, the legal relation's allegiance to correlativity may be qualified by uniquely legal (i.e. other than juridical) considerations. Examples are the doctrines of voidness for illegality or violation of public policy.

(103) This may have a number of consequences. See below for a discussion of reasons for judgment in note 122 and presence in court at 219. Parties also have the ability to challenge a result as incorrect or unreasonable, whereas non-parties do not.

(104) Although only the parties are bound in a strict sense by a decision, the interconnected nature of the law and the doctrine of stare decisis mean that any such decision has an impact on the entire fabric of the law. This public aspect of the single judicial decision (which is present in the legal relation and absent in the juridical relation) implies that the public (as represented by personae) generally needs to perceive the decision as authentic.

(105) Oakeshott, supra note 68 at 137: "The sole terms of this relationship are the recognition of the authority or authenticity of the laws."

(106) Ibid. at 129: "rules assume agents wishing to perform and performing self-chosen actions in pursuit of substantive satisfactions". This moral power finds parallels in Hegel's power of abstract purposiveness and Rawls's power of having a conception of the good, which help characterize the personae with which they are associated.

(107) Here I adapt mutatis mutandis John Rawls's two moral powers of the persona corresponding to the relation of social cooperation: the first is a version of the capacity for a conception of the good; the second is a kind of sense of justice. See also Oakeshott, ibid. at 137-38: "Thus, the first condition of this mode of association is for the associates to know what the laws are and to have a procedure, as little speculative as may be, for ascertaining their authenticity and that of the obligations they prescribe."

(108) Ibid. at 138.

(109) Lon Fuller, "The Morality That Makes Law Possible" in The Morality of Law, rev'd ed. (New Haven: Yale UP, 1969) at 33-94.

(110) Hegel, Philosophy of Right, supra note 69 at para. 215: "If laws are to have a binding force, it follows that, in view of the right of self-consciousness ... they must be made universally known."

(111) Oakeshott, supra note 68 at 140: "There are some considerations that are often and understandably identified as considerations of jus but are in fact inherent in the notion, not of a just law, but of law itself. They are conditions which distinguish a legal order and in default of which whatever purports to be a legal order is not what it purports to be: rules not secret or retrospective, no obligations save those imposed by law, all associates equally and without exception subject to the obligations imposed by law, no outlawry, and so on. It is only in respect of these considerations and their like that it may perhaps be said that lex injusta non est lex. And there are also similar considerations concerned with adjudicating cases (for example, audire alteram partem), which we shall come to later." [Emphasis added.]

(112) Hegel, Philosophy of Right, supra note 69 at para. 213: "Right becomes determinate in the first place when it has the form of being posited as positive law; it also becomes determinate in content by being applied...."

(113) Observe that Oakeshott, in the passage quoted in note 105, holds that the rule of law requires both a procedure "for ascertaining [laws'] authenticity and that of the obligations they prescribe" (at 137-38; emphasis added).

(114) Fuller, supra note 109 at 39, identifies "failure of congruence between rules as announced and their actual administration" as a failure to make valid law at all.

(115) Scrutiny of the desirability of laws is impermissible from within the legal relation. Under the political relation, it is permissible. If Oakeshott's account of the rule of law has a flaw, it is its tendency to suggest that the legal relation is all-important and downplay the importance of the political relation.

(116) Oakeshott, following Hobbes, briefly considers the question of how the rule of law might be set up, and concludes that there are several options. "[I]t may be established by the exercise of educated human intelligence, although it may need 'the help of a very able architect'; and ... in order to survive it requires the continuous fidelity of the associates but not the uninterrupted observation of their obligations." Supra note 68 at 150. When one remembers that Oakeshott's primary subject is the legal relation itself, the cursory nature of this discussion indicates that one must go outside the legal relation in order to seek an account of its establishment and legitimacy as a whole.

(117) Neither does the juridical relation consider or explain the legitimacy of the legislative and adjudicative institutions per se. In "Contract Theory On and Off the Grid" (2006) 92 Va. L. Rev. 1581 at 1591-94, Terrance O'Reilly argues that Benson's juridical account of contract cannot provide a basis on which a society could legitimately establish an institution of contract. In my view, this is not a deficiency in Benson's account, but it does highlight the limitations of the juridical as a complete source for the legitimacy of private law's institutions. Such a complete account must also contain treatments of the legal and the political relations, as well as an account of how they relate.

(118) See supra note 68 at 163-64. Oakeshott acknowledges that emergency--in particular, war--brings the deficiency of the legal relation into sharp relief. "But there has been one unavoidable contingent circumstance of modern Europe for which the rule of law cannot itself provide, namely, the care for the interests of a state in relation to other states, the protection of these interests in defensive war or in attempts to recover notional irredenta, and the pursuit of larger ambitions to extend its jurisdiction.... This, of course, does not necessarily entail the destruction of all law, but it does entail the desuetude for the time being of a state as an association exclusively in terms of the rule of law.... The rule of law bakes no bread, it is unable to distribute loaves or fishes (it has none), and it cannot protect itself against external assault."

(119) Clearly, both political and juridical obligations may become justiciable, i.e., they may be addressed under the legal relation. I have in mind a bill of rights with respect to the political relation and the common law with respect to the juridical relation.

(120) It's doubtful whether desirability (in a certain sense) can be a condition of a law's legitimacy under any relation, since "desirability" implies a subjective standard and an individual conception of the good which seem ill-suited to public justification to a persona, however we conceive of that persona.

(121) See the comments of LeBel J., dissenting in part, in Named Person v. Vancouver Sun, 2007 SCC 43, 285 D.L.R. (4th) 193, [2008] 1 W.W.R. 223, 224 C.C.C. (3d) 1 at para. 81, regarding the "open court principle" as implying "that justice must be done in public" as well as the "fundamental importance and constitutional nature of this principle". Justice LeBel, at paras. 83-85, also emphasizes the importance of public access to judicial proceedings in maintaining public confidence in, or the integrity of, the administration of justice. On the open court principle, see David Lepofsky, Open Justice: The Constitutional Right to Attend and Speak About Criminal Proceedings (Toronto: Butterworths, 1985), and Joseph Jaconelli, Open Justice: A Critique of the Public Trial (Oxford: Oxford UP, 2002).

(122) According to Canadian law, the reasons for judgment given after a criminal trial justify the result to the accused, who is the primary party to whom the result must be justified, but also to the public. Reasons thus perform a public justificatory function to two audiences and indicates that the relation in terms of the rule of law is not monolithic. Sheppard, supra note 50 at para. 5: "At the broadest level of accountability, the giving of reasoned judgments is central to the legitimacy of judicial institutions in the eyes of the public. Decisions on individual cases are neither submitted to nor blessed at the ballot box. The courts attract public support or criticism at least in part by the quality of their reasons. If unexpressed, the judged are prevented from judging the judges."

(123) See discussion of Barrow, supra note 9 and related cases above.

(124) I emphasize "from the reasonable observer's perspective". Abstract standards of cogency--while possibly valid in the abstract--are not required or even desirable for a public justification.

(125) See Hegel, Philosophy of Right, supra note 69 at para. 222, where Hegel writes: "In court the specific character which rightness acquires is that it must be demonstrable. When parties go to law, they are put in the position of having to make good their evidence and their claims and to make the judge acquainted with the facts." [Emphasis added.]

(126) Morris v. The Queen, [1983] 2 S.C.R. 190 at 200, Lamer J., dissenting on other grounds, quoting with approval from R. v. Barbour, [1938] S.C.R. 465 at 470.

(127) Thus, in the leading Supreme Court of Canada case on judicial notice, R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, 199 D.L.R. (4th) 193 at para. 48, McLachlin C.J.C. describes the doctrine as follows: "Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute.... [A] court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy." [Internal references omitted.] See also David Paciocco, "The Promise of R.D.S.: Integrating the Law of Judicial Notice and Apprehension of Bias", (1998) 3 Can. Crim. L. Rev. 319 ["Promise of R.D.S."]. Paciocco observes the interplay between judicial notice and the law of bias by pointing out that judicial notice operates when there are certain uncontroversial facts which a judge may use in her reasoning without appearing biased. Therefore, he argues that the standard for judicial notice (notoriety) and the reasonable person standard for apprehension of bias are inconsistent and that the standard for apprehension of bias should be used for judicial notice. In so doing, Paciocco illustrates the connection between the law of evidence and the law of bias for which I argue--both go to the public justification of a particular legal result--and shows the kind of substantive proposal to which my argument can lead. The Supreme Court of Canada seems sympathetic to Paciocco's proposal: in Find, which came three years after Paciocco's article, the definition of judicial notice employs the reasonable person standard.

(128) Focusing on public justification as the value underlying both judicial notice and "orthodox" rules of evidence may comfort those who are disturbed by the deep involvement of unproven "facts" in reasoning even according to the evidence. See Promise of R.D.S., ibid. at 326: "A moment's reflection reveals that in making any human decision, including adjudicated decisions, all kinds of propositions of fact, gleaned from personal experience, education and conventional wisdom, are relied on. Indeed, it is impossible to make an intelligent decision, or any decision for that matter, without doing so."

(129) See R.D.S., supra note 38 at para. 40, L'Heureux-Dube and McLachlin JJ., concurring: "[W]here the matter is one of identifying and applying the law to the findings of fact, it must be the law that governs and not a judge's individual beliefs that may conflict with the law. Further, notwithstanding that their own insights into human nature will properly play a role in making findings of credibility or factual determinations, judges must make those determinations only after being equally open to, and considering the views of, all parties before them. The reasonable person, through whose eyes the apprehension of bias is assessed, expects judges to undertake an open-minded, carefully considered, and dispassionately deliberate investigation of the complicated reality of each case before them." R.D.S. cites Canadian Judicial Council, Commentaries on Judicial Conduct (Cowansville: Editions Y. Blais, 1991), at 12: "True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind." See also Wewaykum, supra note 6 at para. 58: "The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind."

(130) It might be more accurate to say that facts giving rise to a reasonable apprehension of bias rebut the presumption of impartiality that attaches to the judge's office (raised by the selection process and oath, etc.).

(131) Oakeshott, supra note 68 at 146: "In seeking the meaning of a law in relation to a contingent occurrence this court cannot entertain speculations about the intentions of legislators or conjectures about how they would decide the case: to make law and to adjudicate a case are categorically different engagements."

(132) As the Supreme Court of Canada held in B.C. v. Imperial Tobacco Canada Ltd., supra note 101 at paras. 44-45: "Judicial independence is a foundational principle of the Constitution.... It serves to safeguard our constitutional order and to maintain public confidence in the administration of justice.... Judicial independence consists essentially in the freedom to render decisions based solely on the requirements of the law and justice.... It requires that the judiciary be left free to act without improper interference from any other entity--i.e., that the executive and legislative branches of government not impinge on the essential authority and function of the court." [Internal references and quotation marks omitted.]

(133) Ibid. at para. 47 [emphasis added].

(134) Developing a full account of the relationship between the principle against self-incrimination, trial fairness and the repute of the administration of justice is beyond the scope of this article.

(135) Collins, supra note 24 at para. 42: "[T]he purpose of s. 24(2) is to prevent having the administration of justice brought into further disrepute by the admission of the evidence in the proceedings. This further disrepute will result from the admission of evidence that would deprive the accused of a fair hearing, or from judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies." [Emphasis in original.] For an argument that the "condonation" rationale is untenable and the only possible coherent rationale for the exclusion of unconstitutionally obtained evidence is the optimal deterrence of constitutional violation by state actors, see Steven Penney, "Taking Deterrence Seriously: Excluding Unconstitutionally Obtained Evidence Under Section 24(2) of the Charter" (2004) 49 McGill L.J. 105.

(136) Appearing to assist illegal conduct may also endanger the court's integrity and reputation among reasonable persons. In Canada, the illegality (or ex turpi causa) doctrine in tort law guards against the possibility that the plaintiff's wrongdoing may make his lawsuit an abuse of the court's processes, and that the court's integrity will suffer as a result. See Hall v. Hebert, [1993] 2 S.C.R. 159, 101 D.L.R. (4th) 129, McLachlin J. (as she then was); and British Columbia v. Zastowny, 2008 SCC 4, [2008] 1 S.C.R. 27.

(137) On the relationship between the doctrine of abuse of process, and the judiciary's integrity and independence, see Bloom, supra note 24. Bloom identifies the court's integrity with its public appearance and a loss of integrity with an apparent condonation of illegality.

(138) 277 U.S. 438 at 483-85, 48 S.Ct. 564 (1928) [Olmstead]. Quoted in Bloom, supra note 24, at 465-66.

(139) Unconstitutional or illegal conduct is not always necessary. Although s. 24(2) provides a textual basis to exclude evidence obtained in an unconstitutional manner, other state conduct may be sufficiently egregious as to damage the court's reputation and integrity if the court does not respond with a denunciatory sanction (excluding evidence or a stay of proceedings, for example). Such conduct may go by the names "abuse of process" or "entrapment", but the underlying rationale is the same: ensuring that the court does not become apparently implicated in state misconduct and thereby suffer a loss in repute and authority within the legal relation.

(140) Penney, supra note 135 at 107: "Excluding reliable evidence on the basis that it was obtained improperly detracts from the truth-seeking function of criminal trials and makes it more likely that factually guilty defendants will evade conviction and punishment."

(141) [1989] 2 S.C.R. 1326, 64 D.L.R. (4th) 577, [1990] 1 W.W.R. 577 [Edmonton Journal].

(142) Ibid. at 1360: "Thus, not only is an open trial more likely to be a fair trial but it is also seen to be a fair trial and thereby contributes in a meaningful way to public confidence in the operation of the courts. As Bentham observed...: 'The effects of publicity are at their maximum of importance, when considered in relation to the judges; whether as insuring their integrity, or as producing public confidence in their judgments.'" [Internal references omitted; emphasis in original.]

(143) Ibid. at 1360-61 [internal references omitted].

(144) Justice as Fairness, supra note 70 at 146.

FREDRICK SCHUMANN, B.A. (Hons.) (Toronto), J.D. (Toronto). The author is currently serving as a law clerk to the Honourable Mr. Justice Ian Binnie of the Supreme Court of Canada.

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