Activists in Black Robes

Bruce Wallace September 6 1999

Activists in Black Robes

Bruce Wallace September 6 1999

Activists in Black Robes


The Supreme Court has developed a reputation for feistiness— and the chief justice’s resignation is not about to change that

Bruce Wallace

As the early favourite to be the country's next chief justice, Beverley McLachlin is about to see her every utterance parsed, probed and dissected for clues about just what kind of Supreme Court she might lead. And if her comments to the Canadian Bar Association's annual meeting in Edmonton last week are any indication, the prevailing mood on the court these days might be summed up as: extreme-

ly sensitive to criticism. "You hear a lot about it, that judges aren't some times accountable," the British Columbia judge said during a panel discus sion. "But we are account able. We operate in open courts. We give reasons," she said. And McLachlin then invoked the court's well-worn defence against the critics who contend judges are making laws rather than just interpret ing them. Courts, McLach

lin said, “speak only when citizens or the government bring an issue before them. They do not march out and say, We think there is a problem here—we are going to rule on it.’ ”

With that declaration, McLachlin, who will be 56 on Sept. 7, signalled that the early retirement of Chief Justice Antonio Lamer next January does not mean that the court is about to amend its ways in the face of growing public dissent. Over the last several months, Lamer, 66, has shucked off the

cloak of judicial reserve, rolled up his sleeves and responded to his critics. He accused them of “judge bashing,” and argued that courts are merely heeding the will of the people by ensuring all laws comply with the 1982 Charter of Rights and Lreedoms. It was an opinion picked up and echoed by other justices, McLachlin among them. “The courts have no choice but to grapple with a whole range of issues,” she has said, “many of them involving social and moral questions of profound importance and difficulty.”

But to those who believe judges are treading in areas where they have no business, this so-called the-charter-made-medo-it defence does not stand up to scrutiny. “The Supreme Court is getting bolder all the time in its belief it can get away with more and more activism,” says McGill University political scientist Chris Manfredi, a respected Supreme Court analyst. “The notion that they are humble servants of the Constitution is nothing but hubris cloaked in humility.” In fact, no one doubts that the charter has radically shifted the power balance from elected parliaments towards the judiciary. The issue for many is how far the judges will go before they lose public support.

The battle lines over the legitimacy of the courts decisions come at a moment of upheaval in the court itself. Lormer international war crimes prosecutor Louise Arbour, 52, will join this month, becoming the third appointment to the nine-member bench made by Prime Minister Jean Chrétien. And Chrétien has an opportunity now to put a significant stamp on the court that will last well into the next century. In McLachlin, he has a chance to name the first woman chief justice—a bilingual westerner with a solid judicial record. And Chrétien will be appointing another Quebecer to fill Lamers vacancy. Having already appointed francophones to two non-Quebec seats (New Brunswick’s Michel Bastarache and Ontario’s Arbour), there is some speculation the Prime

Minister might defy convention and choose an English-

speaking Quebecer. That has pushed respected if stolid Jus-

tice Morris Fish, 60, from the Quebec Court of Appeal into the mix of candidates.

The Quebec bench also boasts two other leading contenders. Justice Michel Robert, 61, whose unwavering federalist views on constitutional matters would appeal to Chrétiën as much as his Liberal party pedigree (Robert was once the party president). The other is Justice René Dussault, 59, whose background as co-chairman of the Royal Commission on Aboriginal Peoples would strengthen the court at a time when native issues are a growing part of the caseload. But Chrétien may not have to satisfy himself with one choice, Most observers expect Quebec justices Claire L’HeureuxDubé, who turns 72 on Sept. 7, and Charles Gonthier, 71, to leave the court in coming years.

The Prime Minister’s unfettered opportunity to appoint a raft of judges is another sore point for the court’s critics. “The Chrétien appointments have been intellectually distinguished,” allows University of Toronto political seientist Peter Russell. “But the public would feel better if prospective judges could be reviewed by Parliament.” That opinion, once spoken softly from the margins, has become louder in recent years as the judges’ use of the charter to reshape laws becomes more apparent. “The charter does not speak for itself,” says Eugene Meehan, who worked for

Lamer in the early 1990s and is now a Supreme Court liti-

gator at Lang Michener in Ottawa. “The judges do the talk-

ing. And they are doing a lot of talking. They are making clear public-policy statements.”

The volume of criticism has been turned up in the past two

years. It began with 1997 s so-called Delgamuukw decision, which bolstered aboriginal land claims in British Colum-

bia—with far-reaching consequences. That was followed by the 1998 Vriend decision in which the court itself expanded Albertas human rights legislation to include gays. Critics accused the court of imposing its will on the Alberta government over an issue that belonged in the political arena. “They have set up a political tug of war between themselves and the provinces,” says University of Calgary political scientist Ted Morton, a Reform party member and leading critic of the court. “The Supreme Court under Lamer has been an instrument of the federal Liberal party, advancing the interests of feminists, gays and lesbians, and aboriginals. Small-c conservatives are deeply disillusioned.

Even those who think Lamer is leaving the court in good shape recognize that wounds have been inflicted. “One of Lamer’s weaknesses was the length of his judgments, says Russell. “What I’d look for in a new chief justice is a very fine opinion writer, not in terms of length, but in clarity.” Others list different qualifications. “The chief justice requires the strength of a Clydesdale, the alacrity of a thoroughbred, the herding instincts of a bronco and the thick hide of a donkey, says Meehan. It is the last characteristic that may be tested first and hardest over the coming years. EH