Practice Makes Perfect? The Role of Principle and Practice in Judgment: A Hypothetical Engagement between Immanuel Kant and Justice Louise Charron

Abstract

Justice Louise Charron is sometimes characterized as prioritizing practicality and pragmatism over theory and principled judgment. This view is incorrect: many of her judgments are based on principle, but a principle informed by her practical experience and by the need to put the law into practice. In this respect, her judgments reflect Immanuel Kant’s views on the relationship between principle and practice in moral and legal judgment. It is commonly said that what is true in theory is not so in practice. Kant disputes this view, arguing that "it would not be a duty to strive after a certain effect of our will if this effect were impossible in experience"; a salutary reminder. Justice Charron’s judgments demonstrate that she viewed legal judgment in much the same way as Kant: principle and practice are mutually reinforcing.

To illustrate her approach, I review five judgments written while she was at the SCC. Multani c Marguerite-Bourgeois (Commission scolaire) is an important judgment on the relationship between the Charter and administrative law – it illustrates that the practice of justifying infringements of Charter rights must rest on the principles of constitutional, not administrative, law. R v. Sinclair I is the well-known case in which Charron J limits the right to counsel during a police interrogation – I review the case to demonstrate the difficulties of reaching a principled judgment in an area in which theory is under-developed. R v. Sinclair II deals with a very technical point about the powers of a court of appeal in criminal law – despite its technical nature, it raises important issues about the rule of law and appropriate limits on the discretion of appellate courts to in trial decisions. R v. Orbanski, a case about police powers to investigate drunk driving, turns out to be a highly principled judgment, contrary to the criticisms of the dissenting judges, who characterize Charron J’s judgment as a utilitarian justification of police power. Finally, in R v. McNeil, Charron J deals with Crown disclosure of documents relevant to a criminal charge that are in the hands of other branches of government. It demonstrates how Charron J’s knowledge of disclosure process can inform the creation of principled norms for regulating disclosure.

Keywords: Justice Louise Charron, pragmatism in judgment, theories of legal judgment, Immanuel Kant, role of legal theory in judgment