Table of Contents
In brief
- An administrator for a Canadian court accidentally assigned the same motion to two judges, who reached opposite decisions applying the same legal test.
- The split shows that court outcomes can be nothing more than a matter of personal preference.
- Similar debates in New Zealand, including over the Treaty, show how the same words can yield different conclusions.
- There can be many reasons for disagreement, including a different understanding of the law or the facts, but it can also be a predisposed point of view, which is often called bias.
One case, two outcomes
Court outcomes can depend heavily on subjective interpretation.
In November last year, a Canadian court mistakenly assigned the same motion to two judges. They reviewed the same record and applied the same legal test, yet reached opposite decisions. This occurred within twenty-four hours, so neither knew of the other one before it was released.
The case involved a judicial review arising from a racial discrimination complaint. Two organisations sought leave to intervene. One justice said no, and the other said yes.
Later, a third judge quashed both decisions. The intervenors were allowed to participate by consent of both parties.
But the brief split tells an interesting story.
The myth of objective justice
Many people think if the facts are clear, the legal result should also be clear.
But this is not the case, particularly for areas of the law that are politically or emotionally sensitive. The US Supreme Court regularly demonstrates that.
Same words, different meanings
In the Canadian case, the judges did not disagree about the evidence. They framed the question differently. One treated it narrowly as a technical issue. The other saw a broader context as relevant.
Neither decision was irrational. Both fell within the range of reasonable discretion. That should sound familiar in New Zealand.
New Zealanders have debated the meaning of the Treaty of Waitangi for decades. Did “kawanatanga” mean governance or sovereignty? Did “tino rangatiratanga” preserve chiefly authority or reshape it? Was a concept of “partnership” actually embedded in the text or its spirit? Intelligent lawyers, historians and judges read the same words and reach very different conclusions.
Half the country can be convinced that the meaning is obvious. The other half can be equally convinced that the opposite is true.
The rush to moralise
Disagreement does not automatically equal bias. Judges are often working with wording that is open to interpretation, and the law gives them room to choose between reasonable(and sometimes unreasonable) options.
Justice is the outcome of structured disagreement filtered through fallible human judgment. Appeals and precedents provide guardrails, but outcomes can easily hinge on which judge hears the case.
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Image: Joel Kramer
