The judges’ conferences on that case must have been amazing intellectual exercises.
It is true in that case, as it is in many cases. The most fascinating part of the job of a Supreme Court judge is the debate in conference when you are attempting to persuade your colleagues that the way you see the case is the way it should be seen – and that you’ve got the answer. You’ve got nine people who all approach it from that perspective and, of course, there are collisions.
Is there a sense of frustration when a decision that important goes out and it’s essentially hinging on one swing judge? You know that the judgment isn’t going to be anywhere near as decisive as 9-0 and will probably end up coming back before long through another case?
I don’t think so. You simply accept the premise that the majority prevails. If you find yourself in the minority as I did in that case, you move onto the next case and hope you are more persuasive.
Can you name a case or two you were most pleased with - or with your personal role in them?
I think that occasionally, you feel that you are performing a high function of righting an injustice. A case that gave me particular satisfaction is actually a civil case involving punitive damages. Whiten v Pilot Insurance. A rural Ontario couple’s house burned down and the insurer refused to pay. These people were messed around by a insurance company and from the record, it appeared to me that the insurance company was just attempting to wear them down until they accepted a fraction of what they were entitled to.
There was a lawyer who I believe must have been acting pro bono, who carried it all the way to the Supreme Court. He had gotten a jury so incensed at the insurance company that they awarded a million dollars in punitive damages. In the end, we upheld the outcome and it seemed to me that on a human scale, a massive injustice had been corrected and a very powerful message sent to the insurance industry. Occasionally, you feel that you have really made a difference.
Some of the self-represented litigants we get in the Supreme Court are extremely good. There was a case called Mossop – a gay man who was challenging a denial of bereavement leave. He was a translator with the federal government who presented a superb case in the Court of Appeal. When he got to SCC, the Canadian Human Rights Commission took over and, I must say, did a much worse job than he had done on his own.
There was also a marvellous case involving a Madam Boisvert, from Quebec. She was trying to represent her husband, whose brain was addled by drugs and had been denied benefits. She tried to argue his case and Quebec bar said: ‘No, she can’t argue; she’s not a lawyer.’ At the end of the hearing, I complimented her and said: ‘That was a very high quality of advocacy.’
Three years later, I get a letter from her. The letter is sealed with sealing wax and a signet ring. The letter says she has applied to law school and would I give her a letter of reference. So I did. These kind of human moments arise from time to time.
Do any other such human moments come to mind?
There was one appalling case while I was on the bench where there were a whole string of intervenors and they were going over the same ground. It got to the sixth or seventh intervenor, and Justice (Jack) Major said: ‘Can you tell me one thing that hasn’t been said better by someone ahead of you?’ Now, tell me how do you extricate yourself from that dilemma?
I think one of the human aspects of judging – as opposed to lawyering – is that as a judge, you don’t have the advantage of adrenaline. Lawyers come into court all pumped up to perform. But as a judge, you just come into your ‘office,’ as it were, and start the hearing. The argument takes place and everybody gets engaged and worked up and there are questions and debates and controversy. Then, the case concludes. There is this great shifting of the load. The lawyers walk out free as a bird – they have done their thing. As far as they are concerned, the thing is in the can and they can go off for a slap-up lunch. But the judges drag themselves out of court carrying this huge burden of how they are going to decide the case.