Where do you see the McLachlin Court on the continuum?
I see the McLachlin Court as a consolidator rather than a cutting-edge innovator. After the years of Chief Justice Dickson and Chief Justice Lamer, an enormous amount of Charter principles were laid out. Now, we are much more into a phase of tying up loose ends and adding precision to the general principles that were enunciated. Which is not to say I see the court as timid. I think the court is very forceful when it sees the occasion to be. But I think the legal landscape has changed and the court has evolved with the landscape.
if you ventured out boldly in every case, you’d have a problem. Is there a strategic quality involved in choosing when to be forceful since it can lead to controversy? To what extent is there a strategic awareness of how far is too far to push the law?
I think there is a recognition within the court as to what cases will simply call for an application of existing rules and what cases pose a real challenge to existing rules. In the same-sex marriage reference, for example, the court said in its judgment that because the government of the day had announced a policy in favour of permitting same-sex marriage, it would add nothing for the court to say: ‘Well, if that wasn’t the policy, and if the government policy was to outlaw same-sex marriage, would that be constitutional?’
It was simply a pointless question in the circumstances and it involved the court in completely unnecessary controversy without any value added.
I seem to recall a sense of impatience among the judges during the same-sex marriage hearing as to whether the court had been used by government to take the heat off it on a controversial question? Is there ever the sense that some of these questions get up there in order to take heat off government?
From the judges’ perspective, the government has every right to refer legal questions to the court. If the court judges a question to be political rather than legal, the court doesn’t answer it. In the case of the Quebec Secession Reference, it was a huge political question. But we were asked a legal question and delivered a legal answer. What the politicians did with it was up to them.
I don’t attribute motives to the questions referred to the court. It is up to us as to how to answer it. If we feel that we are being handed a political issue as opposed to a legal issue – and of course, a lot of questions combine – our job is to isolate the legal component and deal with it.
The quest for unanimity often leads to judgments that are so honed and polished that they have lost their teeth. Some say there is a watered-down, vanilla quality to them.
I think there is an attempt to get at least five judges on a single judgment. That’s a response to the legal community that says: ‘We shouldn’t have to create a big wall diagram with issues on the Y axis and judges on the X axis and figure out who’s where.’ Beyond the five judges, there is much greater freedom to write a concurring judgment. If there is a dissent, there is a dissent. But as Chief Justice Lamer used to say, you can scribble all you want but unless you have four friends who sign on, it’s just literature.
Is it a frustrating exercise to rein in your writing and independent thought; pulling punches and sending memos back and forth agreeing to retract things?
It is a fact of life on the Supreme Court that you are dealing with eight other people, week in and week out, year in and year out. You have an institutional responsibility to try to generate as much clarity and solidarity in the law as you can. It is extremely frustrating when you feel you have written an elegant and clear exposition of the law, to have your colleagues jump all over it and complain about this, that and the next thing. But on the other hand, it is a great comfort when a judgment is released that eight other people have been pounding away at it and pointing out the gaps in what you thought was a seamless piece of great scholarship.