Note to readers: In the spirit of litigation, Philip Slayton's Mighty Judgment has been reviewed by two adversaries: lawyer Edward Greenspan and Report on Business law reporter Jeff Gray. Jeff Gray's review is at the end of Mr. Greenspan's.
Philip Slayton, in Mighty Judgments, definitively states that the Supreme Court of Canada is "supremely powerful," "runs our lives" and "governs Canada." It's the premise of his book. He begins with the story of a 57-year-old, physically unfit oddball Vancouver lawyer who bicycled across Canada to Ottawa to burn his lawyer's robes on the steps of the Supreme Court because he had a complaint and "he went not to Parliament, but the place that he recognized as mattering more than any other when it came to the law and the legal system." He ignited his robes in 1998.
Slayton says this proves his thesis. If the disgruntled Vancouver lawyer had remembered to read Section 33 of the Charter of Rights and Freedoms, he would have bicycled that extra couple of blocks to Parliament Hill. Had Slayton remembered Section 33, he might not have written this book. At least, he would have realized his headline-grabbing premise is fundamentally flawed. In reality, the Supreme Court is not "supreme" at all. Despite being a very influential court of law, it is the least dangerous branch of the Canadian government.
Canada's leading constitutional expert, Peter Hogg, has written that even though Canada's Charter is similar in principle and content to the U.S. Bill of Rights, the idea of parliamentary sovereignty "influenced the final form of the Charter and led to a crucial difference between the two instruments." Hogg points out that Section 33 of the Charter has no U.S. counterpart and enables Parliament or a provincial legislature to override most of its provisions for up to five years at a time. This is accomplished by including in a statute an expressed declaration that the statute is to operate notwithstanding a provision included in most of the sections of the Charter. The notwithstanding clause allows Parliament to declare that a statute will operate despite Charter provisions, and Hogg correctly concludes that "the override provision thus preserves parliamentary supremacy over much of the Charter." And so, the court doesn't have the last say. The Charter gives Parliament the last say. Yet this important provision is not discussed at all in Slayton's book.
Quite apart from Parliament's ability to overrule virtually any significant Supreme Court decision, the court has demonstrated considerable deference to highly political decisions of Parliament when statutes are enacted. A palpable example of this deference (which receives no mention by Slayton) is R. v. Mills (1999), where the court considered a statutory enactment that curtailed the ability of people charged with sexual offences to obtain access to third-party records in relation to complainants.
Only four years earlier, in R. v. O'Connor, the court provided an exhaustive common-law scheme favouring production of such records to the accused to make full answer and defence. After O'Connor, Parliament enacted (without resort to Section 33) an entirely different scheme, making it much more difficult to get access to such records. In upholding the constitutionality of Parliament's scheme, the court deferred to Parliament's choice and described their own relationship with Parliament as one of "dialogue" and deference. The court concluded that Parliament could overrule the common law, as was its inherent right. O'Connor and Mills teach us that the court does defer to Parliament, but Slayton completely ignores these cases.
While this book is promoted as written by a very distinguished lawyer, no distinguished lawyer could ignore the "notwithstanding clause" or O'Connor and Mills. The public has every right to expect more, including telling us about Section 33. But then the book would have been entitled Notwithstanding the Notwithstanding Clause, the Supreme Court is Possibly as Powerful as Parliament. But that would not have made news. It's boring.
In the end, Slayton concludes that the work of the Supreme Court is impressive in many ways and he now favours the intervention list court because it guards against the tyranny of the majority and guards against the executive.
Might Judgment does discuss interesting questions about the Court, namely lowering age limits, matters of security of tenure, regional representation, the appointment process, alleged homogeneity of the Court, a requirement of bilingualism, and 5-4 judgments. My only complaint is that these matters should be discussed in the context of a clear understanding of the role of the Court in our particular Parliamentary democracy.
Edward Greenspan is a Toronto lawyer who has appeared on numerous cases before the Supreme Court of Canada.
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FOR THE DEFENCE
The subject of the Supreme Court did not exactly burn up the campaign trail, Philip Slayton finds, but it should have
By Jeff Gray
Prime Minister Stephen Harper may have successfully bored the country into finally giving him his coveted majority. But in doing so, he made a surprising number of promises not to do things, trying to reassure those who fear he has a hidden agenda to create a socially conservative Canada.
One of the things he promised not to do was to stack the Supreme Court of Canada with rabid ideologues. One must assume, based on the two largely well-received Harper appointees already on the court, he will keep his word.
But it is this awesome power of the prime minister to hand-pick those who fill vacancies on the top court that Philip Slayton targets in Mighty Judgment.
These nine judges do nothing less than "run our lives," he says. They have decided whether we can have abortions, watch group sex, pay for private health services or marry same-sex partners. In a democracy, Slayton argues, they should not owe their jobs solely to the very executive branch they are supposed to check.
The issue did not exactly burn up the campaign trail. But it should have. As Slayton writes, approaching retirements mean whoever "is prime minister over the next three or four years will have the chance to remake the court."
[Editor's note: Two Supreme Court judges - Mr. Justice Ian Binnie and Madam Justice Louise Charron - announced their retirement on Friday, after the Books section had been sent to the printing press.]
The book begins with the debate over whether judges make or merely interpret the law, and whether they should be doing one of those things. Slayton takes us from the Court's sleepy early days to its transformation with the coming of the Charter of Rights and Freedom in 1982, when it became a central institution of Canadian life, the keepers of a document as holy as health care and hockey.
Some argue that the judges aren't as mighty as Slayton makes out. He does fail to mention Section 33, the infamous "notwithstanding clause" that allows legislatures to override the Charter. Eminent lawyer Edward Greenspan, in his review, seizes on this lapse as enough to toss Slayton's book aside. However, the politics of breaking the glass case around the notwithstanding clause have long made it all but off-limits. Ottawa has never used it; the provinces rarely have. It might as well not exist.
Recent moves to democratize the selection of our red-robed Supremes have been farcical, Slayton concludes. The most interesting fact learned about Harper nominee Marshall Rothstein under questioning from a toothless panel of MPs was that his favourite Beatle is Paul - a safe and predictable choice for a judge.
Slayton lays out two better ways. First, there is the American grilling that U.S. Supreme Court nominees receive in their Senate. This has obvious democratic appeal to Slayton but horrifies much of Canada's legal establishment. The second model is the new British one, in which the choice is given to ad-hoc judicial selection committees, a system Slayton deems both "bottom-up" and "politics-free."
The author, a former corporate lawyer and University of Western Ontario law dean, is well known for getting up the legal world's sensitive nose with his previous book, Lawyers Gone Bad. He digs up less dirt here, although he details concerns fellow judges raised over the late Antonio Lamer's drinking before he retired as chief justice. Slayton criticizes some recent Supreme Court judgments as "murky" or "like essays written by diligent B students." But he still concludes, even with a flawed selection process, that the top court does a good job, and is made up of "nine people doing their best."
He does lash out at its fusty secrecy. Many former clerks of the Supreme Court - Slayton himself is one - were discouraged from speaking with him by a court edict. He quotes several of them, along with some retired Supreme Court judges and other sources, anonymously.
Slayton was granted on-the-record interviews by three of the nine current judges. But he doesn't seem to have been able to squeeze much juice out of them, not surprisingly. While criticizing the media for their lack of Supreme Court coverage, he draws heavily on accounts over the years in this newspaper, many by long-time justice reporter Kirk Makin.
Still, Slayton manages to produce a colourful sketch of the court's hidden inner workings. (Among the revelations: Judges have often made up their minds before oral arguments, and they don't always get along.) His book is a useful primer on the wrongly neglected subject of our top court, its immense power and the need for reform.
Jeff Gray is the law reporter for Report on Business.