There is an art to preparing a leave application, but it is easily learned. All you really have to do is look at the rules of practice and understand that your function is to kick the ball up in the air in an interesting way and the judges will grab it. You don’t have to persuade them that you’re right on the merits.
Would you have been as enthusiastic about going to the court when you were first called if you knew you would have to go to a parliamentary committee hearing to be questioned?
I think that gets into the question of appointments, and I just don’t want to get into that. We are at a moment when all of that is very current, and I don’t want to go there.
Should French be a requirement for Supreme Court judges?
The French language thing is explosive. I just don’t want to get into it. Anything to do with what the politicians are going through right now is too sensitive.
Can you address the court’s role in relation to Parliament?
Very, very often, what is left out of the equation by commentators who say the court is making up the law is the notwithstanding clause. As far as I know, it is unique that Parliament can override the court’s view of what the Charter requires. I don’t have a view one way or the other about whether its a good or bad thing, and whether it is exercised or not is a political decision made by the politicians. But in terms of the court’s authority, the notwithstanding clause was put in quite deliberately and it’s there.
Is it comforting for the court to know it’s there, that a judgment is not the absolute final word?
I think its part of the checks and balances which I simply accept as having been worked out in 1981. I want to expand on this point a bit – this idea that the judges, being unelected, get in the way of the will of the people. I think that the notion of checks and balances is absolutely essential to our Constitution. And certainly, the judges have no monopoly on wisdom. But neither does the majority of Parliamentarians.
In terms of the court’s history, it has performed a very valuable service in standing up for minorities. I go back to an earlier period which lacks the current controversy. You’ll recall that, in an earlier era, there were all these cases dealing with the Jehovah’s Witnesses and the Duplessis government, which was out to crush them and to make an example of them. The court stood up to it – as unelected people, yes, but as part of the check on abuse of power. The court said, ‘You can’t do that.’
During the 1950s, with all the Communist scare going on, the Supreme Court also interfered in a number of instances and said: ‘We’ve got freedom of speech in this country. We have freedom of belief.’ And that was even though there was no Charter. And in the 1930s, we had the Alberta Press Case. The Social Credit government said the press had to print government press releases. But the court said no – even though it was going against the majority government of Alberta at the time.
So, I think people have to take a longer view of the importance of the courts and the relationship between what the courts are doing and what the legislatures are doing.
The aboriginal question has been an abiding concern for you?
As you recall, there was this huge controversy at the time the Charter was developed as to whether there should be entrenchment of ‘constitutional matters that directly affect the aboriginal peoples of Canada.’ At one point it was in the Constitution Act and then it was taken out and Justice Thomas Berger wrote an article in your paper demanding that justice required it being put back in. Eventually it was, and the word ‘existing’ was added. But there was no definition of what aboriginal and treaty rights consisted of. What was envisaged at the time was that there would be a series of constitutional conferences that would reach some consensus as to what aboriginal rights meant and what would be their legal effect and to what extent would they be protected from legislative override and so on.