Canada

The supreme and inaccessible court

Elizabeth Gray October 15 1979
Canada

The supreme and inaccessible court

Elizabeth Gray October 15 1979

The supreme and inaccessible court

Amid the rustle of black robes and judicial whispers, the Supreme Court of Canada last week opened its fall session—one that could mark a turn in its 104-year-old history. The clues were the two empty chairs on the elevated walnut bench last week, with senior common law judge Ronald Martland presiding in the centre chair. Missing were Chief Justice Bora Laskin and Judge Julien Chouinard, formerly of the Quebec Court of Appeal, who took his place at week’s end as the Clark government’s first appointment.

Laskin was under intensive care in Vancouver’s St. Paul’s Hospital recovering from abdominal surgery. Concern about his health, which had mounted since his open-heart surgery 18 months ago, has now turned into open speculation about a successor. Much of that speculation is focused on Chouinard. He replaces Yves Pratte, who stepped down last June pleading ill health but sparking speculation about the real reasons for his retirement. Only two years earlier Pratte had come to the bench to replace Louis-Phillipe de Grandpré whose own abrupt resignation after only three years had nothing to do with his health and a good deal to do with his sense of isolation and the lack of prestige that marks life in the nation’s top court.

That three different Quebec judges have filled the same seat in only five years—all conservatives on a court where conservatives have been dominant for years, despite the ascendancy

of the so-called progressive Laskin—is striking. It is assumed that Chouinard will last longer than the previous two Quebeckers, even that he has been fingered to take over should Laskin step down. After all, Laskin himself was catapulted over the more senior Martland, causing resentment; now, by tradition, it is time for a chief from Quebec, and Chouinard’s credentials are politically desirable. He is a former federal Conservative candidate in Quebec, and has served as the senior mandarin for both Union Nationale and Liberal governments in the province. His commission of inquiry also concluded in August that bilingualism in the air is safe—a decision accepted with alacrity by the Clark government. If Chouinard eventually takes over, it is possible that Martland, who has only 18 months to go before retirement at age 75, will be asked to do a caretaker stint.

The so-called Laskin Court, a popular term that infuriates other judges, is thus winding down its sixth year— without its namesake. So far, the court has been known less for its small “1” liberalism than for its big “D”—the dissents of the chief justice as Laskin has been isolated from a more conservative majority. Now, according to some court observers, a new middle stream is emerging, which may cut through the once-polarized court. The influence of the middle stream, made up of Brian Dickson, Willard Estey and the new B.C. judge, William McIntyre, hinges, as does so much else, on the return of the chief justice.

Ironically, it is Estey who represents Laskin’s most important failure to influence court appointments. In 1977, Laskin recommended Charles Dubin of the Ontario Court of Appeal for the Ontario seat which was filled, instead, by Estey. Dubin, the idol of reform-minded Ontario lawyers, would have been a natural philosophical ally for Laskin. If Laskin has been thwarted in his efforts at judicial reform, he has no one but himself to blame for a surprisingly weak administrative record. A good example is a cause of his own making— the public image of the Supreme Court. He has made this his personal crusade and in a series of speeches has severely criticized Canada’s journalistic community for serving his court so badly. While there is no denying the media’s failure to cover the court adequately, the Supreme Court remains as inaccessible today as it was when Laskin took over six years ago. Attempts to create a more open system have disillusioned the people involved. There are no press seats in the courtroom and there is no translation for the benches where journalists and public are supposed to sit. A proposal to improve courtroom acoustics has been gathering dust for a couple of years; an information officer was hired for a year and then the position was dropped. In that time she saw the chief justice only twice: the day she arrived and a second time by accident.

One disillusioned former court employee, who describes Laskin as “more

interested in preaching reform than in implementing change” at this level, ascribed his administrative weakness to an obsessive fear of offending his more conservative brothers. Laskin may well have opted to sacrifice more streamlined press relations in the interests of judicial harmony, but it provides another glimpse of this otherwise fairminded and rational judge that he continues to berate The Canadian Press, the only news-gathering institution that has consistently assigned a senior reporter to cover his court.

Judicial harmony notwithstanding, the eight leaderless judges are now launched into a heavy workload. Some key questions among the 59 cases:

• Did Manitoba have the right in 1976 to slap a $1.3-million tax assessment on Air Canada for the use made by its aircraft of Manitoba airspace? And there is a larger question: Who “owns” the airspace above?

• Can the Bill of Rights overrule a federal statute, in this case the Defence Act, under which a Canadian Armed Forces private was tried by military tribunal for trafficking in marijuana? If the court’s answer is yes, the private may be retried in a criminal court and the use of military tribunals may be curtailed. (But this Supreme Court has not allowed the Bill of Rights to overrule anything since Joe Drybones in 1970.)*

• When is rape really rape and when is it an act between consenting partners? Vancouver businessman George Pappajohn is asking the court to rule on what constitutes consent.

By far the best-known case this year, though, involves the question of official languages—and the court is hearing the second part of that this fall. The first half, the Constitutionality of Quebec’s Bill 101, was heard last spring, but a decision awaits the appeal of francoManitoban Georges Forest, who is challenging Manitoba’s act of 1890 making English the sole official language of that province’s courts. The two decisions will come down together, although Laskin’s illness and Yves Pratte’s resignation have complicated things. Pratte’s successor, Chouinard, will not sit on the Forest case because he did not sit on 101; Laskin will sit it out in frustration in his hospital room.

There is not much doubt that the court’s ruling on those cases will uphold Canada’s linguistic duality. But a larger question remains: will the Laskin Court be seen as a major era in Canadian legal history, or will it come to stand for a period of dashed hopes? Elizabeth Gray

*The court ruled that an Indian could not be charged with an offence—drunkenness off the reservation—with which no other Canadian could be charged.