Risk And The Role Of The Judge: Lessons From Bail

Document Type

Book Chapter

Publication Date


Source Publication

B. L. Berger, E. Cunliffe, and J. Stribopoulos, To Ensure that Justice is Done, (Toronto: Thomson Reuters Canada, 2017)


Judges work in the shadow of risk. A central source of the moral and political burden of the office is to sit in judgment at the troubled confluence of the risk of the unknown, the demands of principle, and the necessity of decision. The Supreme Court aphoristically stated in United States v. Burns that "[l]egal systems have to live with the possibility of error." But a system does not "live" with anything, really; rather, it is individuals and communities that feel the excruciating consequences of error - be they unjust deprivations of liberty of wrongs left unaddressed or unprevented - and it is the actors within that system that must (and should) live seized with appreciation of the risk that these consequences may flow from their decisions.

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