Do you ever worry that the criticism is undermining the legitimacy of the Supreme Court as an institution?
I personally don’t see the kind of controversy we have in this country as undermining confidence in the courts. I’m sure it could reach that point at some stage if these attacks are sustained or prolonged enough. But I think at the moment, the bar and commentators speak up. For every statement attacking the court or every editorial, there is a letter to the editor saying that’s nonsense. So it seems to me, at the moment, there is a free and open debate criticizing the court from whatever perspective you’re going to take. And that’s a healthy thing.
The root of the issue is borrowed from the jargon of the American political scene. In the United States, some judges on the Supreme Court have a theory that the Constitution should have the meaning that it had in 1791, when the Bill of Rights was adopted, and that it is illegitimate for judges to depart from that. It also so happens that in 1791, public floggings and hangings, and so on, were a very popular pastime.
In Canada, we have never had that view. We don’t have a Jefferson or an Alexander Hamilton or a Benjamin Franklin, for us to read their views on what the Constitution does or doesn’t mean. At the Quebec conference, Sir John A. Macdonald’s most memorable reflection was: “Too much whisky is just enough.” That was the guidance we got as to our Constitution.
There is no doubt that in 1867, women could not hold public office. If you look at the intent of the framers of the Canadian Constitution, you could not appoint a woman to the Senate. But 60 years later, the question arose before our courts. Do you go with what was understood in 1867? Or, do you say: ‘This isn’t 1867, this is the 1920s and we have a different view of the role of women in Canadian society?’ Well, in the Person’s Case, we said that the Constitution permits women to be appointed to the Senate.
Those who drafted our Charter of Rights in 1982 were similarly unable to foresee many of the cases you adjudicate even now. Does it give you pause, for example, to see some of the immense intrusions by the state that are possible, and which you have to decide on?
Yes, that is a fundamentally important problem. We have a lot of cases dealing with search and seizure powers. I relate that back to your earlier question about whether the court is driving to the right. I think that so some extent, those who take that view compare the present court with the early years of the Dickson court, where there were these broad, swooping decisions that gave tremendous force to the Charter. Do we see that at the present time? I think it’s a question of evolution.
In the early years, the Dickson court did make broad, sweeping pronouncements because they were laying the groundwork. In the key case on privacy, for example – Hunter and Southam – the question was whether you could have a bureaucrat authorizing another bureaucrat to search and seize documents. That’s not a difficult call to make – either then or today – and the court said no. So, the court established in very strong terms a right to privacy and limits on police and bureaucratic power. As you work through all these different situations where privacy emerges, you get down to much shorter strokes and much more difficult calls. And they are going to be controversial because there is this balance that society expects police to do their job, and society expects the rights of the individual will not always triumph over the rights of society.
Can we extrapolate from this and say that, if the Dickson Court were sitting today on these cases, we would see very similar results to those of your own court because the slices are so much thinner and more nuanced?
I suspect so. In that era, you had quite conservative judges, like William McIntyre. They were all struggling with the same problem we have. They were trying to strike the right balance. I can’t think of a case in my judgment and in hindsight, that would have been decided differently – although I’m sure there would be some cases. Every time a judge is replaced, the dynamics of the court change and people will see things differently.