So persuasive powers are pretty important in that judicial conference room.
Yes. It’s all advocacy in law, from first to last.
What is your most important piece of advice to lawyers who are arguing in the Supreme Court? What mistake do you see most often?
We suffer from the absence of a specialized Supreme Court bar. In other countries, including England and the U.S. and Australia, there is a group of lawyers who have emerged over time as senior appellate advocates. The best-known example in Canada would be people like J.J. Robinette and Ian Scott. They were constantly before the court and they got to know the individual judges. The judges got to know them. I was in the Supreme Court on many occasions where Robinette argued and it was almost in code. There was such a clear understanding between judges and the advocates that the process could be compressed into a very tight time frame.
Over my lifetime, that has changed. Lawyers no longer refer work to appellate counsel. Now, if you’ve got a case that goes to the Supreme Court, you take it there whether or not you have any experience. That’s one of the reasons we allow intervenors as often as we do. Because counsel for the intervenors are quite often specialized and extremely knowledgeable, for example, in equality cases. They provide the assistance that the Supreme Court bar formerly provided. The problem now is that, with the cost of litigation and the length and complexity of trials, fewer and fewer cases are going to trial. Lawyers have less and less experience with presenting cases. So when they get to the Supreme Court, they don’t have a sense of how to make an argument in less than an hour. They waste a lot of time.
It often seems as if counsel are up there speech-making while the judges are imploring them to get on with suggesting the mechanics of fixing the law. It can appear like two express trains running in different directions.
I think the express train is really the appellant. The respondent’s function is simply to stand up and say: ‘Look, here’s what the issue is. Here’s where I agree with the appellant, here is where I disagree and here is how you could write your judgment.’ And then, you sit down. That brings about a collision between the appellant and the respondent. Whereas, if the respondent stands up and reads a speech prepared in the hotel room the night before, you get this phenomenon of two ships passing in the night and the judges are trying vainly to bring them together.
The court’s ruling in the Chaoulli case on privatized health care received a tumultuous reception. The court was split into factions and a single judge was the swing vote. There was a major reaction and debate out here for weeks afterward.
I think that’s a perfect example of what we have just been discussing. For the judges in the majority, the question was: How can the state prevent you from going out and purchasing health care at your own expense, when you have a possibly life-threatening illness and relief is available at a price that not everybody can afford? If I can spend my money on a house, why not on cancer treatment? So, for judges looking at it from a perspective of individual rights, the state cannot impose single-tier health care.
But for the judges in the minority, of whom I was one, the question was about public health care being an enormous issue of public interest and public importance, and Parliament is supposed to put together public policy. There are undoubtedly problems with the health care system. Everybody knows there are problems with the health care system. More and more money is being spent on the health care system. So, is the court to say that you can’t have a universal, single-tier health plan? Or is the court to say that we recognize there are very serious problems Parliament is attempting to fix it and should be given the constitutional scope to do so?
How you characterize the question determines where you come out in the disposition. And how you characterize the question is, to me, a question of advocacy. There was a lot of very good advocacy on both sides in that case. There were a lot of intervenors and perspectives and there was a huge amount of evidence about health care plans around the world, their cost and what delivered the best health care for the buck, waiting times and so on. So, there was a huge area of expertise – and the minority judges felt that the health care professional understood it better than the judges. Because that’s their business and it wasn’t our business.