One of the other things that always entertained me as a lawyer was this tremendous moment at the beginning of every hearing where the court attendant shouts: “The Court. La Cour!” And nine aging figures shuffle in to their places. I used to think it looked like Old City Hall magistrates court, where they bring the prisoners shuffling up from the cells in order, blinking in the sunlight.
Of course, in the Supreme Court, the order of the sequence changes depending on who is not sitting. I always thought we should line up in an ‘I’ formation, so that we’d know to go to the opposite of the person in front of us. But we have such a habit of lining up two by two. Sometimes people crash into each other. I remember that, as a lawyer, one day the judges were all crashing into each other and [Mr. Justice]Gerry Laforest looked at us and said: “You know, this is harder than it looks.”
Little vignettes emerge from time to time that humanize the court – such as Justice Peter Cory’s daily ritual of delivering cookies to his fellow judges. Are there any you can offer?
Well, we certainly don’t have cookies going from office to office. I think there is an effort in the judge’s dining room to bring people together. The general rule is that we don’t discuss cases. So, a lot of gossiping goes on. It’s an attempt to solidify the personal relationships, put the legal controversies in the background. It promotes the sense that as an institution; that the controversies change, cases come and go, splits come and go, but the court continues. That is what is most important – that it hang together.
What sort of gossip?
Gossip about the bar. Gossip about judges. Complaints about this, that and the next thing. It can be almost anything.
Do judges get together for dinner on the weekend, for example?
There’s a certain amount of socializing, but not a great deal. I remember going to a lecture by the first violinist of the Tokyo String Quartet once. They had been together for 34 years. He was asked what enabled them to keep together for so long. He said they never ate together, they never travelled together and they generally stayed at different hotels. And that was the secret of their success.
We have quite a number of court functions where all nine judges are present. The problem is, if you get two judges socializing a great deal, then you have this cabal problem.
Did you find that the much-discussed, monk-like isolation on the bench is for real?
I think it is for real and I think it comes more from the profession than from the judges. The judges have to be careful, obviously, not to get involved in a way that could reflect on their partiality. But I think the bar is genuinely reluctant to mix in with the judges.
I spent the year before John Sopinka’s appointment at the Sinclair Stevens inquiry. We had lunch once or twice a week for a year. Then, he went off to the Supreme Court. When I was in Ottawa and had business that had nothing to do with the Supreme Court, I didn’t call him for lunch. It’s just easier to leave the judges to the judges. You sense a great deal of that. When I left McCarthy’s, I would hear of friends of decades-old standing who had been in Ottawa and hadn’t called. Not out of any sense of impropriety. It was just: Leave him alone, he’s a judge now. Let’s get on with our lives.
When you think back to going from bar to bench, what do you recall?
An interesting impression I had on the bench was that suddenly there was no adrenaline. Here I was sitting in court, like sitting in my living room having a discussion with a bunch of friends – as opposed to being pumped up and ready for war. I think one of the other interesting things is that lawyers are essentially non-judgmental. You are retained to argue a certain point of view and you make the best case you can. You don’t sit in judgment on whether you ought to win or you ought not to win. You make the judgment that you want to win and you are being paid to win. Suddenly, you become a judge and what it’s all about is being judgmental.