COVER

HERE COME THE JUDGES

RAE CORELLI January 11 1988
COVER

HERE COME THE JUDGES

RAE CORELLI January 11 1988

HERE COME THE JUDGES

COVER

In June, 1975, when he was conducting a public inquiry in Montreal into financial dealings involving Air Canada, Mr. Justice Willard Zebedee Estey of the Ontario Court of Appeal had to adjourn the hearings to fly to Toronto to be sworn in as chief justice of the Ontario Supreme Court’s trial division. He got a seat beside two Air Canada pilots headed for assignments in Toronto. Recalled Estey, now one of the judges on the Supreme Court of Canada: “We’re taxiing along the runway, and we go by about five Air Canada DC-8s parked beside a hangar, and you could see they had no engines. So I said, ‘Gee, those must be the most economical DC-8s in existence—they don’t burn any fuel at all.’ And one of the pilots said, ‘Oh, those things are old now—and when this crazy judge gets out of town, we’re going to sell them.’ ” Experiences such as that are common among the nine justices of the Supreme Court who are almost unknown to Canadians, over whose lives they collectively exercise a power that rivals—and some

times exceeds —that of Parliament itself.

Seven men and two women, ranging in age from 54 to 71, make up the highest court in the land. Although in 80 per cent of their judgments they speak with a single voice, they come from widely differing backgrounds in French and English Canada. But all of them gave up more lucrative careers in teaching or practising law to accept judicial appointments—initially to the Supreme Courts of their home provinces. In their private lives, they swim, jog, play tennis, ski or ride horses. In their professional lives, they often work about 80 hours a week including weekends and, at an average age of 63, comprise one of the youngest benches in the Supreme Court’s 112-year history. They are also the most powerful.

Conflict: Much of that authority arose on the rainy forenoon of April 17, 1982, when the Queen stood under a canopy on Parliament Hill and proclaimed the Canadian Constitution and its Charter of Rights and Freedoms. Be-

fore that ceremony, the role of the Supreme Court for more than a century was to apply the law as defined by statute or legal precedent to the cases that came before it. What the proclamation did was subordinate all law, the legislatures—even Parliament itself—to the Constitution. With that, it dramatically increased the influence—and the workload—of the Supreme Court by giving it the ultimate responsibility for interpreting the Constitution and for striking down laws that are in conflict with it. For the low-profile judges of the Supreme Court, the challenges of the job have never been greater nor the work itself as demanding (page 38).

Some of the justices spend less time at home than they do reading law or writing judgments in their booklined offices at the Supreme Court.

The building itself is a symmetrical four-storey granite structure with a colonnaded facade just west of the Parliament Buildings, set back from Wellington Street by a large lawn. A Canadian flag is raised daily on a pole at the west end of the building. On another pole at the east end, the flag flies only when the court is in session— from Oct. 1 to Dec. 17 (known as the fall term), Jan. 25 to Easter (the winter term) and Easter to June 25 (the spring term).

Plead: Inside the bronze doors is a 105-foot-wide marble entrance hall with a 40-foot-high ceiling and an airport-type metal detector through which all lawyers must walk before they reach the walnut-panelled courtroom to plead their cases. Visitors headed for parts of the building other

than the courtrooms go no further until a commissionaire phones upstairs to confirm their appointments. The judges park their cars in a basement garage and use a private elevator. Near the public elevator on the second floor sits another commissionaire guarding a glass door with a push-button combination lock. Beyond that door, offices of the judges and their secretaries open off a marble-floored corridor that runs around three sides of the building. At Christmastime, the secretaries and the law clerks, the young lawyers who help research cases, are invited to lunch on white linen tablecloths in the third-floor judges’ dining room.

The current chief justice is wearing a grey three-piece suit during a week in which the court is not sitting. Brian Dickson gets up from his desk and, hand

outstretched, walks forward with the telltale rolling gait of those who wear an artificial leg. He lost most of his right leg on Aug. 24, 1944, as an artilleryman in France with the Canadian troops who eventually overcame German resistance at the battle of the Falaise Gap.

Akin: Dickson says that because the Supreme Court of Canada now is responsible for interpreting and enforcing the Canadian Constitution and the Charter of Rights, it has become “somewhat akin” to the United States Supreme Court, which has been making state and federal laws conform to the American Constitution for nearly two centuries (page 40). “Increasingly, we look to their experience,” said Dickson, “not to follow it slavishly but simply as a starting point with which we may agree or disagree. They have made some mistakes that we don’t have to make.” The difference between the two courts is most marked in the Canadian judges’ more scrupulous avoidance of visible ideological partisanship: decisions by the Canadian court rarely give evidence of its members’ personal philosophies.

Dickson dislikes interviews, and he glances frequently across the desk for moral support from his executive officer, James C. MacPherson, who on Jan. 1 became dean of Osgoode Hall Law

School at Toronto’s York University. Dickson talks with authority about the law and the court, choosing his words carefully. When the conversation turns to his personal life, he becomes guarded and visibly uncomfortable.

But all the judges, behind the ceremony and solemnity that characterize their

role, have active and relatively varied private lives. The chief justice and his wife, Barbara, live on a farm 40 km west of Ottawa where they raise Morgan horses and where, at 71, Brian Dickson is usually up at about 6 a.m. to go riding for 45 minutes. “I enjoy getting out in the fresh air in the early morning,” said Dickson, “and watch the geese fly over, or perhaps catch sight of deer and the smaller animals.” Asked about his reaction when, on April 18, 1984, Prime Minister Pierre Trudeau appointed him chief justice of Canada to succeed Bora Laskin— who had died the month before—the former Winnipeg lawyer and Manitoba judge replied: “In this work, you hear cases and write judgments. I did that before and I do it now. I don’t feel much different.”

Top: Dickson, like most of the other judges, puts in a 12hour day, usually works at night and often on weekends and spends much of the court’s three-month summer break writing judgments. He has not been to a movie in 10 years, rarely goes shopping and seldom gets a chance to read a book about a subject other than law. He said

that he thought that his annual salary was about $139,000, but was not sure, and he rang for his secretary. She did not know either and had to look it up: it is $147,700. Dickson laughed and added: “I guess I should know that, but it isn’t a top priority.” Other judges earn $136,200 a year which, for an 80hour week, works out to $32.74 an hour or about $8 an hour more than the straight-time rate for a unionized electrician in Toronto. Big-city lawyers of

the age and experience of a Supreme Court judge earn two to three times as much.

Holes: In the office next to Dickson’s, Estey drops his thin, rumpled frame into an armchair and pushes aside piles of legal briefs to make room for his feet on the coffee table. Estey is so oblivious to what he wears that he sometimes has shoes with holes in the soles. He is known to judges and lawyers across Canada as “Bud”—a name he got in childhood from his younger brother, who could pronounce neither “Willard” nor the exotic “Zebedee” (after the fisherman-father of Jesus’ dis-

ciples James and John—it is Greek for “my gift”). Estey is among many Canadian trial and appellate judges who for years had privately chafed over their powerlessness to avoid applying laws that they felt were unjust and who, as a result, greeted the charter’s ringing and all-powerful declarations as weapons for reform. “For them,” says Estey, “the charter is the only game in town. It’s attractive, it’s interesting, it’s new and it has pizzazz.”

It has also created a new source of appeals to a Supreme Court that only has the capacity to hear about 100 cases a year. There are two classes of people who have an automatic right of appeal. The first are those whose acquittal of a crime at trial was reversed by a provincial appellate court on an appeal by the Crown. The second are those whose conviction was upheld by an appellate court but with one of the judges dissenting on a question of law.

In 1987 the Supreme Court heard 32 of those appeals and 31 charter cases. As a result, there were only 29 slots left for conventional appeals from the thou-

sands of cases tried each year across the nation in such areas as family, property, immigration or commercial law. Said Estey: “We’re like an oversold airline; we have an airplane with 100 seats and 1,000 passengers trying to get in.” Swing: At 68, Estey says that he feels “alarmingly good” following an illness last March when a blood clot damaged the ophthalmic nerve, reducing his peripheral vision in one eye. “But everything has its benefits,” said Estey. “Now I can swing my head sideways and somebody I don’t want to see anymore disappears.” Although he has given up driving “because I’m not sure I wouldn’t injure a pedestrian,” Estey has resumed playing tennis and riding his bicycle around the posh Rockcliffe neighborhood where he lives with his wife, Ruth. He does his own wiring and plumbing “and on the days when I don’t do anything else, I run.”

Wit: When he lived in Toronto, where he practised law for 25 years and built a national reputation for his courtroom skills and caustic wit, Estey used to go jogging followed by a three-legged beagle, named Jerry, and the family cat. He jokingly credits the beagle, which later died of a heart attack, for “all my good ideas on how to practise law.”

Estey watches television for “space, sports and « news,” and he says that he deplores the fact that z Canada does not have a Q national supper-hour TV newscast. He reads Scientific American and aviation magazines, an interest dating back to the Second World War when, attached to the United States Air Force, he flew a Liberator bomber in raids on Japan. Asked whether he regards himself as right wing, the Saskatoon-born Estey replied: “Those terms mean nothing to me. I grew up on the Prairies where everybody was equal; we were all broke.”

At the opposite end of the corridor from Estey is the office of William Rogers McIntyre who, before his appointment to the Supreme Court on New Year’s Day, 1979, was a judge of the British Columbia Court of Appeal. One night he and fellow jurist Alan

Macfarlane went out for dinner after working late. When the waitress brought their drinks,

McIntyre remarked that she looked too young to be serving liquor in a restaurant. She indignantly produced an identification card that showed she was not. “I told her the reason I had asked was that I was a judge and didn’t want to see her get into trouble,” recalled McIntyre.

“She said, ‘So you’re a judge, eh?’ Then she looked at Macfarlane and said, T suppose you’re a judge too.’

And he said, ‘As a matter of fact, I am.’ She obviously didn’t believe either one of us.” He added: “Three or four weeks later I went with a group to that restaurant and there was the girl with a great tray of dishes. Just as my eyes met hers, the head waiter said, ‘Well, judge, you can sit over here.’ She dropped that whole tray on the floor.”

McIntyre was born in Lachine, Que., raised in Moose Jaw, Sask., and was a lawyer for 20 years in Victoria. At 69, he says that he finds Ottawa possessed of “a bloody awful climate” and life on the Supreme Court “one of unremitting toil; people ask if you like the work and you say, ‘Yes, but there’s too much of it.’ ” He says that the court has made “the terrible mistake” of taking on too many cases and that it should cut the number in half. Added McIntyre: “I would like to retire. I think most of us would, and it’s not a healthy thing for this court to be in that position.” The statutory retirement age is 75.

Enjoy: For his part, Gerald Le Dain, a 63-year-old anglophone Montrealer named to the court on May 29,1984, also says that the workload is extremely heavy. Said Le Dain: “I find it hard to visualize working like this at 70 or 75. I would like to have some time to enjoy my grandchildren before I’m called off the field.” The metaphor is apt: the lanky six-foot jurist once dreamed of becoming a major league baseball shortstop. Now he settles for tennis and reading war memoirs, which he says attract him for what they reveal about “character under pressure.”

Some lawyers have become increas-

ingly unhappy over the court’s preoccupation with charter cases which, some of them say, has reduced their chances of getting a hearing for ordinary civil

cases. In a report released on Aug. 23, the Canadian Bar Association proposed the formation of a national court of criminal appeals to lighten the load on the Supreme Court—which rejected the recommendation. The judges replied that they were responsible for hearing criminal appeals in addition to other kinds of cases and would be able to deal with more if the lawyers spent less time arguing them. In 1987 the Supreme Court heard 386 appeal applications and granted 66. At the end of this year’s fall term, there were 57 judgments outstanding and the same number of appeals.

Social: Of the two women judges, Bertha Wilson became the first ever appointed to the Supreme Court of Canada, on March 4, 1982. Scottish-born and marSried to a United Church I clergyman, the 64-yearsold onetime Toronto I lawyer and Ontario appellate judge says that Supreme Court decisions must be written “while keeping in mind the social context within which they will apply.” Claire L’HeureuxDubé is the court’s other woman judge.

Plucked last April 15 from the Quebec Court of Appeal, the 60-yearold widow skis regularly and swims every day at 6:30 a.m. in a downtown Ottawa hotel.

Slave: L’HeureuxDubé says that she misses Quebec City, where she lived for 38 years, and the “family lifestyle” of the Quebec court. “I used to work like a slave in Quebec,” she added, “but I used to say we were happy slaves. Here, in the beginning, I thought we were more like slaves than I had ever imagined, but not so happy. My colleagues here tried everything to make me happy, sending me dozens of roses and giving a big banquet. Now, I think I am okay.” She adds that she often works until 2 a.m. and says that she has been trying for a month to read a novel that Bertha Wilson loaned her, Elie Wiesel’s The Town Beyond the Wall, about a Holocaust survivor who returns to Hungary where he is tortured by the Soviets. Said L’Heureux-Dubé: “Most of the time, I sit in this office reading, looking at the wall and writing.”

To an outsider, the amount of reading

that the judges have to do is almost beyond imagination. An application for leave to appeal may be based on as many as six volumes of background and

case law. An appeal itself is accompanied by the lawyer’s written arguments called factums which—together with the appeal books containing all the trial transcripts and judgments from the lower courts—frequently reach several thousand pages. One case, Quebec’s Bill 101, which legislated French as the only official language in that province and which is awaiting the court’s decision, reached 55 volumes.

Years: An aide to Brian Dickson says that on Friday nights the chief justice sometimes takes home four briefcases full of material that he has to read by Monday morning. One Friday night Bud Estey took home three cardboard cartons and two briefcases full of books, then went back on Saturday to pick up another carton. As well, the justices have to read relevant I cases tracked down by I their clerks in the court 5 library, whose volumes I encompass 1000 years of English common ~~~~~~~ law.

At 54, Antonio Lamer is the court’s youngest judge. His earliest known ancestor was a French marine who served the governor of New France from 1688 to 1700 and, when he retired, he was given a deed to land that is now the Montreal suburb of Ville St-Laurent. Said Lamer: “I wish we still owned it.” Lamer grew up in the tough east end of Montreal. “In my block, everybody but two of us went to the penitentiary,” he says. “I became a lawyer and the other guy is a dentist.”

Enforcing: Lamer says that the charter will heighten national awareness of individual rights and reduce the tendency of Canadians to think of themselves as members of regional, occupational or religious groups. He added: “People are always saying I have my rights as an English this or a French that. People are the most important thing of all. Just people.” Defining and enforcing Canada’s Charter of Rights makes the judges of the Supreme Court of Canada perhaps the most powerful people in the nation.

—RAE CORELLI in Ottawa