With Bora Laskin, Chief Justice of the Supreme Court of Canada
Late in 1973 Prime Minister Trudeau created a short-lived furor by appointing Bora Laskin, a junior member of the Supreme Court of Canada, as its Chief Justice. The furor derived from three things: precedent said the job should have gone to Mr. Justice Ronald Martland of Alberta, next in line by seniority; Laskin was reputed to be a liberal, perhaps even a radical (a myth based, for the most part erroneously, on his years as a labor arbiter, his five years on the Ontario Court of Appeal, and three years on the Supreme Court); Laskin was perceived to be a man who would lean toward the federal government (he is a staunch federalist) in any and all federal-provincial disputes. There was also some unfounded concern that Laskin, an admirer of the U.S. Supreme Court, would somehow attempt to emulate it, have the Canadian Supreme Court making law rather than interpreting it. Therewas talkof a “Laskin Court.” Three years have passed, and the fears have so far proved to be unfounded. While there have been some significant changes in the court (the types of cases it hears, for example, have been narrowed) and some high-profile decisions made (with Laskin often in dissent) the court carries on as usual. The 64-year-old Chief Justice spoke with Maclean's Ottawa Bureau Chief Robert Lewis. The interview opens with a question of two landmark cases, each involving both the federal Indian Act and the Canadian Bill of Rights. In the Drybones case, heard before Laskin arrived on the court, the court, citing the Bill, overturned Drybones’ conviction under the act for being drunk off a reserve— since no similar charge could even be laid against a non-Indian. In the Lavelle case, however, the court upheld the act over the bill: Lavelle was an Indian woman who left her reserve to marry a white, was struck from the band list and lost her status, precluding her attempts to return to the reserve; the Indian Act was upheld despite the fact that an Indian man could have done exactly the same thing with no recriminations.
Maclean’s: In the Drybones decision, the Bill of Rights in effect was used to overturn a provision of the Indian Act. But in the Lavelle case, it was not. How do you explain that? There seems to be an inconsistency there.
Laskin: Well what was common to both cases was a recognition that the effect of the Canadian Bill of Rights was to invest the courts with a power to render inopera-
tive federal legislation if it offended the Canadian Bill of Rights. Now this may be simplicity, but in the Drybones case a majority of the Supreme Court concluded that the particular federal legislation in question in that case offended a prescription of the Canadian Bill of Rights and, therefore, the Canadian Bill of Rights should prevail and that particular federal provision became inoperative. Now in the
Lavelle case the same issue was raised but a majority of the court was of the opinion that the provision of the Indian Act did not offend the Canadian Bill of Rights.
Maclean’s: IVeil, the Lavelle case struck a lot of people as being equally discriminatory.
Laskin: That is true and it struck me the same way. I wrote the dissentingjudgment. But there was a point of view put forward against that. It commanded the support of a majority of the court—and that is the decision. It doesn’t mean that the minority decision was some sort of a wayward decision. On both sides the decisions were carefully considered. Again, it was an illustration of the complexity of issues, of nice divisions of opinion that may result in fiveto-four decisions.
Maclean’s: Since Drybones, hasn’t there
been a move away from protection of the rights of individuals?
Laskin: That could be so, and I only say that because in a number of cases since that time I—and others with me—have taken a position that would have promoted the underlying philosophy at Drybones. Other members of the court, with equal conviction about their policy choice given the leeway they saw in the words of the Canadian Bill of Rights, felt that that particular legislation didn’t require them to declare federal legislation inoperative. Obviously you can’t have a general principle that will decide every case.
Maclean’s: Some people argue that judges have, in effect, repealed the Bill of Rights. Laskin: When we come to face issues arising under the Canadian Bill of Rights we also face the fact that the words of the Canadian Bill of Rights are very, very wide and very, very general. So within the scope of the language of the Bill of Rights there is a range of possible approaches. Now there isn’t any question that it leaves all courts a considerable leeway of choice as to where they’re going to go. The kinds of cases that come to us are inevitably cases in which there is bound to be a difference of opinion on very intractable questions. And the wonder of it is, if the members of the public would care to look at statistics, is how often the court arrives at a unanimous decision.
Maclean’s: You say that the Bill of Rights decisions are fundamentally the same as any other judicial function. But isn’t there a basic difference between Bill of Rights cases and, for example, real estate cases—the question is, is it fair, not what is the law? Laskin: I agree. Obviously the Bill of Rights raises public issues and therefore issues that are more likely to capture public attention. But from the standpoint of the exercise of the court’s judicial function, while we recognize the difference in the character of the problem, our adjudicative approach can’t be really any different than it would be in the vast majority of other kinds of cases.
Maclean’s: In many visible areas, such as abortion or family law or civil liberties, the libertarians on the court seem to have been in a minority.
Laskin: We are not likely to bring a case to the Supreme Court of Canada unless it raises (a) an important issue and (b) an issue in which the decision is likely to be a difficult one. And it’s not to be wondered at that judges at the Supreme Court of Canada level differ on the proper result to be reached in a particular case. The cases
WE ARE NOW SELECTING MORE CASES THAT DEAL WITH IMPORTANT SOCIAL QUESTIONS
themselves are of the kind that make that probable. We are each individuals with strong opinions about a great many matters, and the law itself, especially at our level, is something that we can mold. The cases, when they throw up difficult issues, are likely to find us on different sides of the fence.
Maclean’s: Isn’t it fair, though, to say that on major social issues the court has tended to be conservative?
Laskin: That depends on how you define conservative.
Maclean’s: There was a period, for example, in the Fifties when the court was known as activist. That’s the sense of my question.
Laskin: We had a run of cases in this court in the 1950s which for the first time raised a number of issues that had not previously come before the court. Even in those cases, there were divisions of opinion. There were strong judgments written on both sides of an issue. The same was true on some of the constitutional cases that came up in the Fifties. It was an active period, I suppose, in the sense that questions of considerable social importance were coming before the Supreme Court. In the Sixties and the Seventies those questions have become commonplace. Toa large extent, the court has ceased to be a tribunal that decides purely private disputes; the character of the problems transcends the interests of the particular litigants. When constitutional questions are raised in private litigation there is a rule of the court that notice has to be given to the Attorney General of Canada and the Attorney General of each province, and those attorneys general may intervene in the litigation. When they do intervene the complexion of the case has changed. You now have a governmental input because issues of legislative powers are involved. The same thing arises in questions under the Canadian Bill of Rights. The issues are coming before us in greater numbers than before because we are selecting the cases more carefully. They are now, in a more pronounced way, important social questions and so evident to the public.
Maclean’s: The cases that have a high degree of identification are the ones on which the court seems to have been conservative. Laskin: Well there have been differences of opinion, no question about that. That will continue to happen. The nature of the judicial process and the fact that each member of the court is free to express his own individual opinion is going to lead to divided opinions on contemporary social questions.
Maclean’s: When you were appointed Chief Justice people talked about the “Laskin Court,” or what the “Laskin Court” would be like.
Laskin: That’s just borrowing from the United States. I don’t think that anyone can say that either I or any other Chief Justice can so lead his colleagues on the court as to give it a particular nomenclature.
Maclean’s: You obviously feel this a healthy thing. Why?
Laskin: If you give a name to the court, it almost suggests that you are leader of some sort of a caucus group or as if you are able to command the support of a sufficient number of judges that go with you in all cases, so that you can simply say: “This is my court; I have a following.’’ If one examines the course of decision in the Supreme Court you will find that the lineups of support for the one side or another in divided cases shift considerably.
Laskin: I don’t have any doubt about that. Our newspapers, I regret to say, carry more news about the American Supreme Court and about the American legal decisions than they do about our own. To some degree, this is a reflection on the failure of our press to assign to court coverage people who are able to examine our decisions with the necessary depth and to explain them with the necessary lucidity.
Maclean’s: One of the avenues of the public participation in the law has been the concept of the inscrutable and inviable jury verdict. Now, after the reversal of the jury verdict in the Mor genialer case, it appears to many people that the great strength of the jury is glorified only so long as it’s not used, and that as soon as the jury did what everybody has been talking about for centuries they were immediately put down.
Laskin: You’re talking about the use of the jury in criminal cases essentially. Most of our criminal litigation is handled without a jury. In those cases where there is a jury, jury verdicts are normally reversed not because of the verdict itself (no one knows what considerations have entered into the determination of thejury) but because of an alleged defect in the way in which the trial judge has charged thejury. True, there is provision in the Criminal Code for setting aside thejury verdict that is perverse, but that is not something that arises very frequently. So what we are concerned with in most of these cases is thejury having allegedly been misdirected by the trial judge in charging thejury. What was significant about the Morgentaler case was that in setting aside the jury’s verdict, the [Quebec] appellate court substituted a conviction instead of sending the case back for a new trial. We have had cases where a conviction has been set aside on appeal and an acquittal has been entered by an appellate court. That has not been the matter of serious controversy, I suppose, on the principle that to some degree it represents giving an accused the benefit of the doubt and acting upon the presumption of innocence which is so cardinal in our criminal law. The other situation, of course, is the situation of man biting dog. It happened for the first time and in view of the amendments that have been introduced [by the federal government] it will not happen again.
Maclean’s: Despite the growing independence of the court, and more recently the abolition of the automatic right to appeal, is there nonetheless in the Canadian tradition a kind of legacy of restraint that lingers on from the days before 1949 when appeals went to the British Privy Council?
Laskin: The question of restraint has got to be related to the kind of questions that are put before the court for adjudication. The difference between the legislature and the courts is that the legislature takes a molar approach to social problems and the court takes a molecular approach. We nibble, so to speak. This is because we deal with the law as a case-by-case evolution. There comes a time in that evolution when if you look back at what was done 25 years ago you see a startling change. Over the intervening 25-year period you detect a slow and conscious movement to doctrine which is quite different from the one with which we began.
Maclean’s: Should there be more activism in the nibbling?
Laskin: This is a question of judgment and it’s a question of what is the appropriate moment for the creative judicial act. We’re part of a long tradition. We understand, we hope, the difference between adjudication and legislation. We know that there’s an element of legislation in adjudication. But at the same time, we know that we cannot make great leaps forward with every case that comes before us. In the first place, we have a responsibility to society, to litigants.
WE CANT MAKE GREAT LEAPS FORWARD ON EVERY CASE THAT COMES BEFORE US
Maclean’s i Do you think the public is confused about the role of the court because of the U.S. experience?
to people who are involved in disputes, to give them some assurance that there is stability in the legal order. Parliament may not be under the same constraint. Parliament may decide by passing legislation to liquidate some lawyers’ mental investment overnight. If a lawyer has been working in a certain area of the law and suddenly the law’s changed, there has been a drastic effect on his practice. Now, courts don’t operate in that abrupt fashion. For us, the movement has to be much slower. We have to have some connection with what we have done before.’
Maclean’s: Where do you see the evolution of the court leading? What kind of court is it becoming?
Laskin: I would like it to continue to be a national court in which potentially every kind of justiciable question could come before it for adjudication. It doesn’t matter that the issue arises in a particular province, or that it arises in a particular municipality, or that it arises under provincial legislation, or that it arises under federal legislation, or that it is a constitutional question or one that involves litigation of purely private concern—provided that the issue is sufficiently important for the court to take on.
Maclean’s: Is its function as an arbiter in federal-provincial relations in any way eroded by the federal-provincial consultative process that goes on outside from the court? Laskin: We cannot command our agenda. Private individuals can escape the Supreme Court of Canada by simply resolving their disputes among themselves. Governments can escape the Supreme Court of Canada by resolving their disputes among themselves. Their resolution may not necessarily be in accordance with what a court would decide, if the issue came before it. But they’re free to make a decision among themselves because that agreement doesn’t raise any issue for us, of course, unless the parties decide to go to court to determine what the agreement means. Maclean’s: Some provinces view the court not only as a national institution, as you see it, but asa “federalist”institution. This usually comes up in the context of resource, cultural or linguistic rights.
Laskin: It’s inevitable that these things should be said, but I don’t think that the matter can be documented in any way. It wasn’t so long ago that the Supreme Court invalidated a piece of federal legislation. It doesn’t happen very often and it was the first time that it has happened since 1949. But we uphold provincial legislation just as we uphold federal legislation. We are in the position where we have to adjudicate the limits on legislative power and we do so. But any suggestion that we do so with some pro-federal bias simply because our appointments come from the federal government is really an unworthy suggestion. Maclean’s: In light of the events of November 15 in Quebec, do you see any ways in which any changes might be made in the structure of the operations of the court ?Isn’t
there something of a dilemma all around in a situation where a national court could be asked to decide on questions that are brought from a province that has just elected a government pledged to independence? Laskin: They may be different kinds of questions, but if they are judicial questions that are brought before the Supreme Court there is no reason why we wouldn’t deal with them in the same way we deal with any other constitutional or non-constitutional issue that arises in any other province.
Maclean’s: Is a national court likely to decide issues in such a way that a government pledged to independence will be satisfied? Laskin: Well I know nothing about that. All I know is that we operate under statutes governing our jurisdiction and we operaate under a Constitution we are bound to interpret and apply. Any questions that go beyond that are not questions for the court, they are questions for the political authorities.
Maclean’s: In the sense that the law forces judges to narrowly define questions, does that not divorce an issue at hand from the way people live? You’re forever hearing people say: “That was thrown out on a technicality, isn’t it shocking?”
Laskin: This goes back to how the public views the judicial function. If you were to gauge by my correspondence what it is that we are expected to do, we would be regarded as being, first, a general ombuds-
man for the whole country; second, the National Parole Board: that we exercise the prerogative of mercy; that we can instruct the legislature what to do and what not to do and instruct governments and parliaments. There are some people who have exaggerated expectations. Maclean’s: What have some of the letters been about?
Laskin: Well, typically: “You could get this man out of jail if you want to,” or “You can put this man in jail if you want to,” or " Y ou can protect usagainst the fraud that is being practised on us by so and so.” There is not a very clear perception of the fact that we are an appellate court; that nothing can come before us, short of references that the government directs, unless the matters have been initiated in the lower courts and come up to us in the orderly course of appellate proceedings. Maclean’s: In cases where parliament doesn’t act, is there not a role for the court to take the lead in policy issues?
Laskin: The question is, of course, what handle do we have for exercising judicial power? We can deal with individual controversies, but social problems that may aggravate a great many people and are not reduced to justiciable form to raise a conflict between A and B, are not situations in which the court can play a role. Even if parliament legislates there may be no role for the court. There is a role where legislation adversely affects some person, some class, some group and we may be faced with interpreting the legislation. But it doesn’t mean that we can fill a vacuum simply because parliament has felt it has not acted in a particular area .. . Maclean’s: In granting interviews like this one, are you consciously trying to expose some of these misconceptions?
Laskin: I’m very much concerned about the lack of education in the legal process in our schools, up to and including universities. It’s very important to have a citizenry that is socially literate and social literacy to me involves some appreciation of the legal system. There isn’t a single act that any government can do that does not have to find its authority and its source in the legal system. It’s just as important that our people have some appreciation of law, as they should of English or French literature or economics. I hope that our educational authorities will pay special attention to this. It’s terribly important especially at this time when there is some concern with what loosely might be called disrespect for law.
Maclean’s: The system?
Laskin: Disrespect for law. I just don’t see how we can have any sense of social stability without some concern for the legal order and respect for what those who administer it are doing. We have all sorts of avenues in this country for social protest. The notion that you are entitled to disobey the law because you don’t like it is simply a straight recipe for anarchy. Nobody’s going to gain, certainly not democracy. A?
ANY SUGGESTION THAT WE OPERATE WITH A PRO-FEDERAL BIAS IS SIMPLY UNWORTHY