The road to social justice is slow and hard, but the driver is up to it

Allan Fotheringham August 21 1978

The road to social justice is slow and hard, but the driver is up to it

Allan Fotheringham August 21 1978

The road to social justice is slow and hard, but the driver is up to it

Allan Fotheringham

It’s hard to imagine how much the sway of a country can depend on the health and vigor of individual men and that’s why there’s so much concern and hope over the recovery of Chief Justice of Canada Bora Laskin. There was that heart bypass surgery in June and the fear that if he returned to the Supreme Court it would not be as chief but as merely one of nine judges. Now, there seems a fair chance he will not have to give up the head honcho post and you would be eternally astonished at the number of legal watchers (who rank somewhat down the track to bird spotters and beaver spyers) who are concerned about the necessity of 65-year-old Laskin continuing on in his post.

' One of the great secrets of this silent land is the quiet revolution that has been going on in the structure of the country. Practically unnoticed by the public and editorial writers, the Right Honorable Chief Justice of Canada from Thunder Bay, with those piercing eyeballs and singular cheek bones, has transformed the nature of the court that rules over us all; more than rule over us, the Laskin court has begun to shape our social attitudes, our morals, our way of looking at one another. Laskin is not another dry interpreter of dusty texts and precedents; he is a translator of the shifting mood of a changing nation and in his own way, he is shaping our perceptions and our attitudes just as much, if not more, than a clutch of legislators.

Since Laskin was parachuted in from outside five years ago by Mr. Trudeau— outraging traditionalists and the heir-apparent-by-seniority, Justice Martland— the court has increasingly been nudged toward social issues; decisions that once were decided only in legislatures now are shoved to the Supreme Court. All those constitutional issues that were chewed over in those endless federal-provincial conferences in the 1960s are now, you’ll notice, up in the stratosphere of the Supreme Court. The Laskin influence has persuaded private litigants to attempt an end-run around the usual endless government process. What is second nature to the U.S. Supreme Court is seeping in under Laskin. Environmentalists forced Marshall Crowe off the National Energy Board on conflict of interest allegations. What was so significant about gutsy Canadian Press reporter Gerard McNeil going to the Supreme Court because a twerp of a Nova Scotia censor had banned Last Tango in Paris was not that McNeil lost his expensive case by 5-4. What was important is that the court, 9-0,

ruled McNeil had every right to bring before it a case that did not directly hinge on himself. That leaves tremendous potential for the type of class action that is so fascinating in the American scene.

“What is going on here,” says Paul Weiler, “is a growing exercise in legal power.” Weiler is one of the few people in Canada to be aware of what is going on. A law professor on leave from Osgoode Hall, he has been an innovative chairman of the

B.C. labor relations board through both NDP and Social Credit governments and is headed to Harvard and the Mackenzie King Chair of Canadian Studies with the intention of writing a book on the Laskin court. He has already done one rather critical book on the Supreme Court, In the Last Resort (a sardonic colleague urged him to title it Nine Blind Men, but Weiler astutely resisted the impulse).

The reason for the interest in Laskin’s health and well-being is that his very style, though he merely has one vote, has transformed the court where he most often finds himself in a losing minority position. It is the style of reasoning and logical writing that has put the conservative justices— marshalled behind Martland, a former member of the Tory party—on the defensive. Laskin, as his record in academic circles indicated, before his appointment shocked the traditionalists, believed the individual must be protected from the state. He wants his court to settle what the law means—rather than merely administer

it. When he arrived as chief justice there were terribly detailed legalistic judgements handed down by the majority side. Laskin, in dissent, although he is the boss, delivered minority opinions full of biting quotable remarks that made the majority opinion look bad in legal circles where pedants read the fine print. Laskin’s dissenting opinions in the 1970s, students of the court agree, will be the majority opinion of the 1980s.

Even more intriguing, to students of the point spread, is the philosophical split of the court. Legal minds define the more progressive wing as the “new process.” That has meant Laskin, Justices Spence and Dickson. The more reactionary “crime control” wing, led by Martland, has included Justices Ritchie and de Grandpré. That left a swing group of Justices Pigeon, Judson and Beetz and the man who more often than not casts the vital 5-4 swing vote was Pigeon (who, in another incarnation was the professor at Laval who banished a student named René Lévesque from law class for smoking and thereby consigned him to journalism and politics forever). Judson and de Grandpré are now gone from the court, replaced by Yves Pratte and Estey, but it is too early yet to get a book on their thinking.

Just as fascinating; Martland, Ritchie and Judson were all appointed by John Diefenbaker. Laskin, Dickson, Beetz, Pratte and Estey were named by Trudeau. Lester Pearson had a chance to appoint only two justices, Spence and Pigeon. Spence is 74, Martland 71 and Ritchie close to 70. Pigeon is close to retirement. Which would mean if Trudeau can win the coming election, and last his term, he will have been able to choose all nine judges.

One of the factors that has shoved Laskin into the spotlight is the thrust of the women’s liberation movement. When the court, in that famous 1973 case, denied Alberta ranch wife Irene Murdoch a halfinterest in the ranch she had worked 25 years to build, the feminists were outraged—but cheered by Laskin’s minority opinion. Such was the shift in mood that five years later, Laskin was able to win a 54 victory for Saskatchewan farm wife Helene Rathwell in ruling that a divorced woman has rights to half the assets built up during her marriage. We’re not quite up to the Americans yet, where a Bakke case makes magazine covers, but the Laskin style is dragging us there. While everyone worries about the imponderables of Trudeau’s house of federation, no one is watching the major force quietly surfacing in Canadian Life.