The Exercise of Judicial DiscretionMay 29, 2019
Judge Malcolm Simmons
The judicious use of discretion increases fairness and can help to promote an equitable legal process by allowing the judge to consider individual circumstances in instances when the law is insufficient or silent.
Conversely, because discretion involves situational considerations, its misuse can adversely impact the court’s authority and good reputation, create a feeling of result-oriented decision making and, when abused, lead to gross injustice.
However, Judicial discretion is necessary for the proper discharge of our Constitutional obligations as a separate – and independent – branch of government. Legislatures cannot anticipate every situation that we, as judges, can expect to encounter in the administration of justice.
A common definition of judicial discretion is (i) the act of making a choice in the absence of a fixed rule, i.e. statute, case, regulation, for decision making or (ii) the choice between two or more legally valid solutions and (a) a choice not made arbitrarily or capriciously and (b) a choice made with regard to what is fair and equitable under the circumstances and the law.
Judicial discretion does not provide a licence for a judge to merely act as he or she chooses.
The exercise by a judge of his discretion is ‘individual’. No two judges will think alike and “reasonable minds can differ.” Discretion is not exercised in a vacuum and a judge’s “choice” may well be impacted by any number of external factors including life experience and personal views on legal, social, and moral issues.
If the exercise of a judges discretion is to survive appellate review he/she should consider the following:
- Give both sides reasonable opportunity to present their case.
- Establish the record: Ensure that the relevant and necessary facts are on the record. Make sure your findings are only on the evidence presented. Clearly show your reasoning.
- Consider the equities of the situation. Ask yourself — is it fair? Is it the right thing to do?
- Take time to think over any decision. You are the judge and the case cannot proceed without you. Do not allow yourself to be unnecessarily rushed.
- Clearly and logically explain your decision.