The Quebec secession case came during your first month on the Supreme Court?
Actually, it was the second week of sittings that we heard the Secession Reference. It took the whole week. It was a very unusual hearing in that the stakes were so high. We decided that we shouldn’t ask questions because when a judge asks a question, observers read them this way and that way. So we sat silently. The lawyers, of course, were dumbfounded. They expected this barrage of questions. Instead, it was like addressing the centre court at Madame Tussauds, with these nine wintry faces looking at them.
On the fourth day, all of our collective questions were put in the hands of the Chief Justice and he posed everything. It was very exciting and certainly felt the weight of history on your shoulders. It was an enormously politically volatile issue. I think it was clear we had no role in determining the outcome of secession. We were asked to assume there was a vote in favour of unilateral secession. I think we felt the constitution had to give an answer. You couldn’t as a court simply throw up your hands and say: ‘There is no answer, so go away and have a free-for-all.’
Our role was to set out the rules for other political players to work out whatever solution they eventually wanted to work out. And as you know from the judgment, what we did is what judges usually do. We examined how the political players over the years have interpreted and understood the constitution and what its requirements are. In the same way that when we look at commercial law, we look at what the bankers and merchants do. That’s how the common law develops.
So we came up with certain principles that seem to have guided politicians over the past 113 years and said those principles were antithetical to unilateralism; that Canada has always been a people talking and negotiating and working out an answer, and that was part of our constitutional arrangement.
There must have been a palpable sense of relief when you all realized there would be some kind of consensus possible on it, that you would be unanimous instead of a 5-4 split or a 3-3-3 split?
Yes. Clearly, the objective from the outset was to have a decision ‘from the court.’ Generally, that requires that you abbreviate a judgment rather than expand it. You prune off bits that are likely to become contentious and everybody can sign on. We wanted an anonymous judgment which carries the authority of the whole court and avoids personalizing some particular judge’s perspective. I think it was just understood that this was too important for people to be flying off at angles from the main thrust of the judgment.
The practice under Chief Justice Lamer was to go in reverse order of seniority. So, the newly appointed Judge Binnie was asked what he thought the answer to the problem was. With the hearing having taken place over three or four days, there had been discussion among the judges. So, it’s not as though there was no background against which you expressed a view. But nevertheless, it was quite a challenge to go from the trenches of McCarthy Tétrault to pontificating on the effects of a referendum on Quebec sovereignty in a period of a month.
Was speaking up in conference for that case one of the more nervous moments of your life?
I think by the time the court conference came along, I had a fairly firm view as to what I thought would be the way forward – not that the details were worked out and not that there was a settled opinion. But there was a sense of the direction in which we ought to go.
On the day a ruling of that magnitude is released, it must be a strange experience to be up in your eagle’s nest at the court, looking down as the media trucks roll in, the press packs the lobby of the court and analysts keep going at the judgment all day long.
My feeling then and now is that, although the judges are aware of this environment outside the courtroom, the focus is very concentrated on the issue and sense of responsibility to get it right regardless of how it is to be perceived. Personally, I was very pleasantly surprised that it was so well received by all sides. I think it was well received because, first of all, it was very non-political. We expressed absolutely no view of the politics of it and how it should be resolved. All we did was lay out certain ground rules within which the decision would be made. Even the premier of Quebec welcomed the ground rules, as did the federal government.