A Due Measure of Fear in Criminal Judgment

Abstract

What ethos is appropriate to the modern act of criminal judgment? In the long history of the criminal trial, passing judgment on the accused was, for the adjudicator, a fearful act filled with theologically-inspired anxiety. This article argues that, despite the contemporary attenuation of this specific form of anxiety, criminal judgment ought still to be infused with a due sense of the perils associated with passing legal and moral judgment upon another. This piece considers Justice Bertha Wilson's criminal law jurisprudence, arguing that, apart from her substantive contributions, her legacy in this field is to embody an adjudicative ethos and posture conditioned by a keen appreciation of the limits and dangers of criminal adjudication. A close examination of her decisions reveals a judge who is palpably aware of the complexities of the lives that appear before her, the violence of the criminal law, and the consequent imperative to proceed with caution and humility. In this, her jurisprudence serves as an ethical resource: we should want judges who, seized with a keen sense of both the limits and consequences of the criminal law, tremble at the moment of judgment.

Keywords: Criminal Law, Judicial Biography, Canada, Judgment

JEL Classification: K14