Can you address what you were trying to do in the Marshall eel-fishing case and what it was like to see the blowback that erupted after it?
My perspective is that, from a legal point of view, if you are to take treaty rights seriously, it was wrong to look at a treaty that gave aboriginals the right to continue trading with the British, which, in the treaty negotiations, had established an elaborate system for fisheries how much a certain number of beaver pelts would buy, et cetera. This treaty right would have been rendered a complete nullity by saying that it gives a right to trade but it doesn’t give a right to fish and hunt and get something to trade with. It just made the treaty meaningless. Others might have a different view, but that was mine. If you are to take S. 35 seriously, you had to give meaning to that treaty. That’s what I thought had been intended both by the Crown and by the aboriginal people.
Leave aside for a minute the treaty interpretation issue. I think that a great issue in aboriginal predicament is lack of employment opportunities, lack of resources, the whole welfare problems, socio-economic problems. It was intended by the British when dealing with the Indians that they would be self-sufficient. Here was an opportunity which the British saw and which I think the treaty embodied – the right to work. And the right to work carries with it self-respect.
In the end, the government arranged for certain commercial fishing licences to be issued to the aboriginal people and the situation seems to have settled down. So, I think that in this case, the legal result and the policy result coincided. We were only concerned with the legal result. But I was surprised that in policy terms, the blowback you describe was inconsistent with the usual thing we hear about: ‘Well, why don’t the Indians don’t go out and get a job?’ And yet, they shouldn’t have this opportunity based on an early Indian treaty?
Do you wish you had altered or tightened the meaning of the Marshall decision, or do you see it as a case of the media grabbing hold of a case and playing with it?
The reaction was what it was, and the decision is what it says. I can’t dwell on every judgment I have written.
Can you usually anticipate how a judgment will play in the press and public?
It’s quite surprising. Some judgments, you expect to be highly controversial and they’re not. Other judgments which you think are pretty standard stuff suddenly blow up into huge controversies. And this is why, when people say, ‘Is the court conscious of the media reaction,’ I say, ‘No, because we have no idea what the media reaction is going to be half the time.’
Can you give example of a reaction that didn’t come or where you were surprised when there was one?
I would say that the succession of right-to-counsel cases were an example of where I didn’t expect so many people to get involved and express opinions and to have a controversy rage. There was also judgment written some time ago on jury instructions on reasonable doubt. It was a really straightforward explanation of reasonable doubt was all about, but it became very controversial. The Attorney-General of Ontario said: ‘Oh, this is going to open up all sorts of cases.’ It blew over without incident, but it was a surprising reaction.
When you were appointed, you already knew the Supreme Court well from being a lawyer. But was there nonetheless anything that did surprise you once you got there?
As you say, I appeared quite frequently in the Supreme Court over the years. I had probably done as much Charter work and constitutional work as most judges get to see on the courts of appeal since most of them did private law or routine criminal cases. So, I had an expectation that I would simply be leaving the counsel table and marching up to the bench and looking down instead of looking up. I would be reading the same sorts of factums, reading the same case law. Instead of writing factums, I’d be writing decisions. But that would be the extent of it.
What you slowly become conscious of, particularly in the Supreme Court, is that you are a custodian or trustee of the well-being of the legal system. And in particular, of the Constitution. That you should leave the system at least as healthy as it was when you got there – and with some good fortune, with a few upgrades and improvements.