I think in all of these cases, there are concerns on both sides. In the right to counsel cases, some of the judges were concerned that if the lawyers were introduced into the process prematurely, they could mess up the ability of the police to get to the bottom of some very serious crimes. On the other side of the decision, there were those who felt there were rules governing police interrogations that ought to be stricter than the majority favoured. Again, everybody is searching for where you strike the balance.
You have spoken out strongly in favour of criminal rights in many of these cases. If your replacement doesn’t fill that role, will the balance roll further against them?
I don’t think I want to get into the appointments process and what may or may not happen. I think it depends very much on the individuals who are appointed. As we know particularly from the experience in the United States, judges who are appointed with the expectation that they will go one way very often go the other way.
If we could tackle the age-old question of the extent to which judges play out their personal biases and beliefs based on their experiences and opinions, is it difficult to watch this debate play out with you unable to say anything about it yourself?
Nobody arrives at the Supreme Court of Canada without baggage. We have all had experiences. We all have views as to how society operates. I had 30 years at the bar dealing with all kinds of cases. That simply forms part of my equipment when I went to the bench. I think that the media greatly overstates the room for personal views and biases. When I got to the court and participated in court conferences, the overwhelming issue was one of professionalism. The judges were attempting to arrive at what they understood the law to be regardless of what the media was going to say about it and regardless of how they personally might have decided if we were free of precedent and we have an open book to write whatever laws we wanted.
I also think there is tremendous pressure on judges from the legal community in particular, who watch decisions quite closely and are very quick to criticize and call the court on what they regard as a departure from legal principles.
I think this whole question of whether judges should apply the law and not make it is a slogan. It’s not really a criticism. For example, you talk about the death penalty. The Charter says that everybody has the right not to be subjected to cruel and unusual punishment. Supposing a death penalty case comes along. Well, the Charter doesn’t talk about the death penalty. So it has to be interpreted. The court said in Burns and Rafay that we believe the Charter requires that the Canadian government not extradite a person to face the death penalty without assurances that the death penalty not be imposed. Those in favour of that decision say: ‘Oh, the court’s just applying the law.’ Those against it say that the court’s making up the law.
The Charter is purposefully written in very open language. If the Charter said it is cruel and unusual punishment to have public flogging but not a private flogging, there would be a clear rule and the court would apply it. But it isn’t that specific. I think that as far as the judges are concerned, every judge believes he or she is interpreting and applying the law. Whether others accuse the court of making up the law or not depends on whether they agree with the outcome.
Is there a point where criticism of the courts becomes worrisome – for example, when Immigration Minister Jason Kenney criticized Federal Court judges for their immigration decisions? When criticism of the judiciary becomes a political campaign slogan?
Certainly, the courts are part of the political environment and are criticized or praised depending on a politicians’ point of view. Looking to the United States, in the 50s and 60s, there was a hugely liberal court led by Justice Earl Warren. Liberals said the court was simply applying the Bill of Rights. Conservatives said Warren and his brethren were just making it up. Now that the court has swung to a much more conservative perspective, it’s the conservatives who say the court is just applying the law and the liberals are saying the court is making it up. So, these things change over time. Depending on whether you’re on the short end of the stick or the long end of the stick, you say the court is making it up or not making it up.