Nine men in search of even-handed justice
On December 21, 1978, Mr. Justice Wishart Spence, 75, having reached the mandatory age, was duly retired from the Supreme Court bench. At a small ceremony in the black walnut panelled courtroom Justice Minister Marc Lalonde faced the nine-member Supreme Court and delivered a short speech to Spence in appreciation
of his 15 years of service on the Court. Lalonde’s voice was clear, his delivery unhesitating. He was a lawyer among lawyers. Only one aspect of his speech was disturbing. His panegyric to Spence was being delivered with eye-to-eye contact to Mr. Justice Roland Ritchie. The remaining members of the bench attempted by warm nods of approval in the direction of Spence to indicate to the minister of justice that the object of his affections was seated three chairs to the left. Some little way into his speech Lalonde picked up the signals. But confusion compounded. Which one was Spence? Commented a court official afterward: “Most unfortunate, but not the minister’s fault. We had no time to prepare him.”
Who could blame Lalonde? Few Canadians would recognize any of the nine people on the Supreme Court of Canada who play such a vital role in the country’s civic destiny. Partly this is due to the justices’ own rectitude and sense of decorum vis-à-vis the media, fortified no doubt by the bitter experience of being misunderstood whenever they ventured out of their judicial shells. In a speech to a journalists’ seminar in Ottawa a year ago, Chief Justice Bora Laskin pointedly spoke of “the appalling
ignorance or reckless assessment of the judicial office by some sections of the public.” In part, the anonymity of the court is also due to what seemed to be a judicial avoidance-reflex. It was only five years ago that the publication of Professor Paul Weiler’s book, In the Last Resort, a lucid study of the Supreme Court, occasioned such indigestion in the sedate chambers of the marble and wood-panelled building on Ottawa’s Wellington Street, as to reportedly prompt some judges to consider getting legal opinion on whether the scholarly book could be held in contempt of court. Whatever the reasons, the gulf between court and general public has bred misunderstanding on both sides. Oversimplification of issues has led to easy labels describing members in terms of “left” and “right” wings. In fact, it is a divided court. It is a court at the crossroads of its development—but the dilemma is one of considerable complexity with few simple formulas for its solution.
Not that everyone and their local MP isn’t coming up with suggestions. The Trudeau government has produced Bill C-60 which increases court seats to 11 and allocates them on a geographical basis with four for Quebec, at least one
Mr. Justice Yves Pratte,
53, son of a renowned Quebec appellate judge. Received his LL.L from Laval ('47) and did postgraduate work in tax and corporate law at the University of Toronto (’48), Practised law in Montreal for 20 years, becoming head of his own firm in 1954 Dean of law at Laval ('62’65). Appointed to the Supreme Court straight from practice.
Mr. Justice Willard Zebedee Estey, 59, son of a
late Supreme Court of Canada jurist. Master’s degree from Harvard, admitted to the Saskatchewan bar (’42) and the Ontario bar (’47). Estey is a specialist in corporate litigation. Appointed chief justice of Ontario in 1976. Appointed to the Supreme Court of Canada in 1977 Known for his administrative efficiency, court-watchers believe he will take many duties off Laskin’s shoulders and help lighten the chief justice’s work load.
Mr. Justice William Rog ers McIntyre, 60, the most recent appointee (December, `78) to the court. A member of the B.C. Court of Appeal, Mcin tyre's appointment ended the tradition of three Ontario judges on the court. Strong on criminal law and known for his dry sense of humor, Mcintyre's dissent on the 1975 capital murder case Miller & Cockriell was a judg ment written in the best tradition of the Laskin, Spence, Dickson era, relying heavily on the Ca nadian Bill of Rights and a strong anti-capital punishment stand. Considered very much his own man, no predictions are being made on how Mcintyre will vote in constitutional and civil cases.
Mr. Justice Robert George Brian Dickson,
62. Gold medallist at Manitoba law school (’38), appointed to Manitoba Court of Appeal (’67) and the Supreme Court of Canada in 1973. Dickson is emerging as the major voice of the progressives on the court. His judgments are renowned for their lucidity and eloquence.
The Chief Justice, The Right Honorable Bor.
Laskin, 66. Osgoode Hal law school. Called to On tario bar ('37), LL M from Har vard ('37). Lecturer and pro fessor of law at Osgoode Ha! and University of Toronto var lously (’40-’65). Immensel' prolific writer of legal con; mentaries, editor of law re ports, author of learner works on the law Appointee to Supreme Court of Cañad; (70), selected chief justice it 73 Suffered major heart sur gery in 78 Returned t( bench in fall of 78 and is cur rently carrying a full scheduli of casework.
for British Columbia and the remainder “to ensure at all times” members from the Atlantic provinces, the western provinces and Ontario. Last month the Task Force on Canadian Unity called for a three-tiered Supreme Court with separate benches for provincial and federal jurisdictions and one for constitutional cases.
Supreme Court reform has clearly been jotted down in federal desk diaries. But many informed observers think the whole direction of the proposals is wrong. Says Professor Weiler, ex-chairman of the B.C. Labor Relations Board and currently Mackenzie King professor of Canadian Studies at Harvard Law School: “Fm getting pretty jaundiced about it. I think we’re making a big mistake. The entire thrust of reform in the court is on ‘how do we get people there and where do we get them from?’ with very, very little attention being paid to what they do when they’re there and how we structure things to make it possible for them to do the best job.”
The Problem: What is ailing the Supreme Court is not a matter to be discussed so much in legal as in sociopolitical and philosophical terms. The dili-
gent law clerks up in the humidified hush of the law library may be quietly making up their “bench memos” (summaries of upcoming cases) for their respective judges, but across the land times are still very much a-changing. The court is sitting in a period of three of these key changes. First, the social. Explains Mr. Justice Brian Dickson: “Claims are now being advanced of a nature which would not have been dreamed of 20 years ago, claims by married women, environmentalists, native groups, children, consumer groups, athletes, all seeking relief from the courts.” Second, of course, is the immense political turbulence of separatism and regionalism which threatens the very existence of Canada. But most important of all is the crisis which questions some basic assumptions of the British system on which the court depends. Simply put, the question is whether to turn the court more firmly in the direction of American judicial “creativity” or to retain—and this remains the majority approach of the court—an attitude based on the British concept of the supremacy of Parliament.
Though it is often referred to as our constitution, in fact the British North America Act is really no constitution at
all in the U.S. sense. It is a statute of the British Parliament which provides for the dividing up of spoils between the Canadian federal government and the provinces. It is concerned mainly with jurisdiction—who gets control of what. “In theory,” explains Professor Peter Hogg of Osgoode Hall law school, “it is possible for a provincial government to pass a law requiring everyone to do an hour of physical exercise each day at three o’clock. The only challenge could be made on jurisdictional grounds, whether this was the responsibility of the federal government rather than provincial.” In other words, the BN A Act decides who is allowed to make us stand on our heads, but does not question whether any government has the right to turn us upside down in the first place. For a couple of liberal centuries, the British parliamentary supremacy approach did allow both England and the Commonwealth countries to create relatively liberal societies. Indeed the whole point was that citizens’ rights were not curtailed by the nasty business of writing them down and possibly omitting some. This was the great advantage the 19th-century master of constitutional law, A.V. Dicey, had in mind when he wrote that a written construi-
Mr. Justice Louis-Phillippe Pigeon, 74. Gold medallist at Laval law school ('28) followed by appointment as professor of constitutional law at Laval. Flexible and pragmatic in his constitutional judgments and feared by lawyers for his demanding questions, Pigeon often leads the court when hearing Quebec civil law cases.
Mr. Justice Roland Ritchie,
68. Member of the Nova Scotia bar ('34), distinguished war career, practised law in Halifax until his appointment to the Supreme Court in 1959. Ritchie authored the Drybones judgment that gave precedence to the Canadian Bill of Rights even though he is considered aligned with the conservative court members.
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land, 72, born in England and emigrated to Canada in 1911. Graduated from the University of Alberta with the Chief Justice's Gold Medal and a Rhodes scholarship to Hertford College, Oxford. Double firsts at Oxford as well as being named Vinerian Law Scholar. Went directly from practice in Edmonton to the Supreme Court of Canada in 1958. A leader of the strict constructionist's approach to law, Martland is noted for his clarity, incisive questioning and masterful control of the court's duties and procedures.
Mr. Justice Jean Beetz, at
51, the baby of the court. Rhodes Scholar to Oxford. Called to Quebec bar in 1950, dean of law, University of Montreal (’68-70), special counsel to the prime minister on constitutional matters (’68-71). Quebec Court of Appeal (73) and Supreme Court of Canada (74), A brilliant academic and judicial career and an unpredictable cast of mind that was most refreshingly demonstrated in his dissent from the majority ruling that confirmed the legitimacy of the AIB.
tion was inferior because it would only act as a brake on the liberal spirit with which he expected Parliament to be imbued forever. The Americans never quite shared this optimism and decided that, all things considered, it would probably be wiser to spell out in their constitution individual freedoms and liberties to protect the citizen against the state. Canada, sniffing the spirit of illiberalism that the last few decades have gradually given rise to, finally decided a Bill of Rights was necessary and in 1960, John Diefenbaker sponsored one—with much fanfare and glory. The trouble was the Bill of Rights remained merely a statute, one among many, and as such did not have, in spite of its ambitious wording, the force of a constitutional check on other statutes enacted by Parliament.
Perhaps, if all of the Supreme Court judges had been bolder, it might have been possible to give the Bill of Rights the sort of yardstick authority Parliament might—or might not—have wanted it to have. But the majority members of the court could seldom bring themselves to invoke the Bill of Rights against an act of Parliament. The court’s arguments were perfectly legitimate: if Parliament wanted to give the Bill of Rights special force it would have put it in the constitution. In the end this led to a lessening of the Supreme Court’s own power. It has been an extraordinary irony: unlike most institutions desperate to acquire more power, the Supreme Court with its majority of conservative judges unwilling to meddle with the system has gradually eroded its own sphere of jurisdiction. The minority of the court, led by Chief Justice Bora Laskin and often joined by Justices Brian Dickson and Wishart Spence (as in the future he may be joined by new appointees Mr. Justice William McIntyre, Yves Pratte or Willard Estey—see boxes) prefer to hew out the bolder road of upholding the rights of the individual citizen against the state. This meets with much
approval from civil libertarian lawyers, the media, and many Canadians concerned about the increasing encroachment of government, though it sometimes requires stretching the judges’ judicial functions almost to the point of snapping their legitimacy. And if tensions have developed in the court they are not only clashes of opinions and personality, but genuinely and profoundly m felt differences about the appropriateg ness of a U.S. Supreme Court style of creative lawmaking—questionable even I in American terms, but at least tem* pered by a constitution that does actually speak about civil rights—imposed on our system still (supposedly) run under the supremacy of Parliament.
The Clash: When Bora Laskin arrived at the Supreme Court in 1970, he was greeted with much icy politeness. As an academic, he had put into print some criticism of the court. But at that time the court’s reputation among the only Canadians who paid much attention to it—lawyers and academics—was at an all-time low. “I think we must be blunt,” wrote Weiler in 1974 in In the Last Resort. “The law is now made in Canada but this hardly justifies its shoddy quality. My detailed research
discloses a general deterioration in craftsmanship in the last 10 years.” With Laskin’s appointment in 1973 as chief justice the standards of work quickly began to change. “You can tell by the references to Canadian law in the major textbooks,” explains commercial law professor John McCamus, chairman of the Ontario government’s Commission on Freedom of Information and Individual Privacy: “In my field of restitution law, English cases predominated. Now the 1978 edition of the authoritative textbook on the subject is sprinkled with Canadian references.”
Mphe quality of written judgments I and oral questioning of counsel beI came tougher, In some cases it proved too much for counsel. One prairie lawyer appearing before the court to fight his own disbarment, frightened and awestruck, managed first to forget the key to his briefcase, occasioning an adjournment while he scrambled back to his hotel room, then required the court to grant him permission to move up to the Queen’s Counsel bar closer to the judges since his voice was so weak. On approaching the bar, files in his hand, the trembling lawyer looked at the assembled court and fell headlong over the bar, papers flying. “Heavens,”
cried one of the more senior memhers of the bench, “I think he’s dead.” This remark caused much consternation, not only because of the possibility that it was true, but also since the (now retired) judge uttering it had not been heard to say anything in court for several years. Today Weiler is far more positive about the court. “The great contribution of Laskin has been that he has raised the entire intellectual tone of the court.” Laskin initiated the use of the full nine-member court on as many cases as possible (“I think we owe it to the people of Canada”) and made every effort to minimize the increasingly visible and sharp differences between himself and the majority on the court who preferred a narrower interpretation of statutory law (known as the “strict constructionist” approach). But the differences remain substantial and apply in every area of law: criminal, public, private and civil law. Some notable cases:
Mitchell: (’75) in which the majority of the court ruled that the Parole Board is a statutory body not bound to act on a judicial basis and not required to fill the condition of the Bill of Rights guaranteeing “a fair hearing in accordance with fundamental justice.” Laskin, Spence and Dickson, dissenting, said the Parole Board claims “a tyrannical authority that . . . should not be tolerated by the courts.”Ѣ
Murdoch: (’73) in which the majority held that a farm-wife was not entitled to a share in her husband’s estate just because she helped her husband run the farm over many years. Laskin, dissenting, held that she was.
Morgentaler: (’75) in which the majority held that the Quebec Court of Ap-
peal acted lawfully in substituting a verdict of conviction for the jury’s acquittal. Laskin, dissenting, wrote that the jury’s decision did not warrant such an arbitrary reversal and the appeal court should have simply ordered a new trial. (Laskin’s dissent disappointed many activists who were expecting him to comment on the social issue of abortion and not what they regarded as a mere legal technicality. However, Laskin’s judgment helped bring about a change in the law and jury acquittals can no longer be turned around by the courts in Canada, which might well have been the more important issue after all.)
ciGOL: (’77) in which the Saskatchewan provincial government’s tax levy on the Canadian Industrial Gas and Oil Ltd. of Calgary was declared unconstitutional by the majority of the court. The issue turned on the question of whether the tax was a direct one, which « province may impose, or indirect, which is a federal prerogative. In this case Laskin voted with the majority, the dissenters being Justices Dickson and de Grandpré. Many observers felt
that the court used a technicality to deprive the provinces of a legitimate source of revenue.
Drybones: (’70) Curiously, the court’s most liberal decision came before Laskin—perhaps the only one in which the Bill of Rights triumphed against an act of Parliament. Justice Ritchie held for the majority that an Indian could not be charged with an offence—boozing it up outside a reservation—with which no other Canadian could be charged.
Party Politics and the Court: As the
regional interests and the threat of the Parti Québécois pulled on Canada’s social fabric, charges of a “bias” in favor of federalism began to be levelled at the Laskin court. In a study commissioned by René Lévesque and headed by Quebec lawyer Gilbert L’Ecuyer, this was refuted. The study concluded that the BNA Act itself was clearly biased in favor of federal powers and the judges were merely doing their job of umpiring the constitution. In Toronto, Professor Peter Hogg is still at work on a study of bias, but his preliminary conclusions are the same.
Though most serious legal commentators see the merit of ensuring Quebec seats, it is difficult to find any who applaud Bill C-60’s suggestions that geographical quotas be placed on the court. Though it is always hoped that the court would be as representative as it would be consistent with excellence, suggestions that regional parity should take precedence over other considerations, “is a sad day for the Supreme Court,” says Professor Weiler. It may be that if Bill C-60 gets before the Supreme Court, the strict constructionists will finally unite with the creative constructionists and deny Parliament this bit of supremacy. In an emotional and moving speech Chief Justice
Bora Laskin left no doubt how he felt about the issue: “The source of our appointment in no way qualifies our independence; that is fundamental. We have no duty to governments, no duty to litigants, except to interpret and apply the law according to our ability.”
Though current attention focuses on the constitutional issues facing the court, it is the area of criminal law, which occupies a far larger share of the court’s case load, that civil libertarians and advocates of the Canadian Bill of Rights “due process” clause have been most concerned about. Says criminal lawyer and editor of the Canadian Criminal Code Edward Greenspan: “As far as protection of the rights of the accused are concerned, not only is it fair to say there has been no extension, no bolstering or indeed any gains, but there has been a process of retrenchment.”
In spite of our long allegiance to the British tradition of the supremacy of Parliament, perhaps the time has come when our legislators need the checks that a real constitution would impose upon their special interests and bias. Though the Americans were fortunate in drawing up their constitution in more liberal times than this era of special interests and pressure groups, where the rights of the private citizen are submerged under the bonecrushing weight of regulatory agencies and powers already beyond the reach of the court, it may still not be too late to protect the environment of our most endangered species: individual freedom. Incorporating the Canadian Bill of Rights into the BNA Act would be a good beginning and one that could unite strict constructionists and creative jurists on the court in a new era of social justice.