The Quebec secession case came during your first month on the Supreme Court?
Actually, it was the second week of sittings that we heard the Secession Reference. It took the whole week. It was a very unusual hearing in that the stakes were so high. We decided that we shouldn’t ask questions because when a judge asks a question, observers read them this way and that way. So we sat silently. The lawyers, of course, were dumbfounded. They expected this barrage of questions. Instead, it was like addressing the centre court at Madame Tussauds, with these nine wintry faces looking at them.
On the fourth day, all of our collective questions were put in the hands of the Chief Justice and he posed everything. It was very exciting and certainly felt the weight of history on your shoulders. It was an enormously politically volatile issue. I think it was clear we had no role in determining the outcome of secession. We were asked to assume there was a vote in favour of unilateral secession. I think we felt the constitution had to give an answer. You couldn’t as a court simply throw up your hands and say: ‘There is no answer, so go away and have a free-for-all.’
Our role was to set out the rules for other political players to work out whatever solution they eventually wanted to work out. And as you know from the judgment, what we did is what judges usually do. We examined how the political players over the years have interpreted and understood the constitution and what its requirements are. In the same way that when we look at commercial law, we look at what the bankers and merchants do. That’s how the common law develops.
So we came up with certain principles that seem to have guided politicians over the past 113 years and said those principles were antithetical to unilateralism; that Canada has always been a people talking and negotiating and working out an answer, and that was part of our constitutional arrangement.
There must have been a palpable sense of relief when you all realized there would be some kind of consensus possible on it, that you would be unanimous instead of a 5-4 split or a 3-3-3 split?
Yes. Clearly, the objective from the outset was to have a decision ‘from the court.’ Generally, that requires that you abbreviate a judgment rather than expand it. You prune off bits that are likely to become contentious and everybody can sign on. We wanted an anonymous judgment which carries the authority of the whole court and avoids personalizing some particular judge’s perspective. I think it was just understood that this was too important for people to be flying off at angles from the main thrust of the judgment.
The practice under Chief Justice Lamer was to go in reverse order of seniority. So, the newly appointed Judge Binnie was asked what he thought the answer to the problem was. With the hearing having taken place over three or four days, there had been discussion among the judges. So, it’s not as though there was no background against which you expressed a view. But nevertheless, it was quite a challenge to go from the trenches of McCarthy Tétrault to pontificating on the effects of a referendum on Quebec sovereignty in a period of a month.
Was speaking up in conference for that case one of the more nervous moments of your life?
I think by the time the court conference came along, I had a fairly firm view as to what I thought would be the way forward – not that the details were worked out and not that there was a settled opinion. But there was a sense of the direction in which we ought to go.
On the day a ruling of that magnitude is released, it must be a strange experience to be up in your eagle’s nest at the court, looking down as the media trucks roll in, the press packs the lobby of the court and analysts keep going at the judgment all day long.
My feeling then and now is that, although the judges are aware of this environment outside the courtroom, the focus is very concentrated on the issue and sense of responsibility to get it right regardless of how it is to be perceived. Personally, I was very pleasantly surprised that it was so well received by all sides. I think it was well received because, first of all, it was very non-political. We expressed absolutely no view of the politics of it and how it should be resolved. All we did was lay out certain ground rules within which the decision would be made. Even the premier of Quebec welcomed the ground rules, as did the federal government.
It seemed to me it was a hugely important function for the court to perform – to say that it’s not our decision; it’s the decision of the people of Canada, but here is how we ought to go about making that decision. And that there are certain constraints imposed by the Constitution and the purpose of those constraints is to avoid chaos.
Can you name another decision in your time on the court that was comparable for you in terms of impact?
Another enormously important case had to do with the death penalty and extraditing fugitives back to the U.S. to face the death penalty – Burns and Rafay. Ten years before it, the court had said that extradition to face the death penalty did not necessarily violate the Charter. But in the 10 years that had gone by before the Burns and Rafay case arrived at the court, there was enormous turmoil in the U.S. over whether the death penalty could ever be justly inflicted. The Innocence Project had come up with a number of wrongful convictions.
My sense was if the Americans themselves are very uncertain about whether they are executing innocent people, there simply has to be a question about whether Canada should be extraditing people to face the death penalty. Given that our government would be delivering up the individuals and that our government was bound not to subject individuals to cruel and unusual punishment.
Did our own history of wrongful convictions augment that feeling?
We have had a number of wrongful convictions. I was personally involved in the appeal of the Guy Paul Morin case and he, of course, was convicted at his second trial. There was a community consensus – to the extent such a thing exists – that he was the guilty party, but it turned out he was exonerated by DNA. What it showed, with really profound impact, was that if you don’t follow the rules, you wind up with a very bad result. The rules were stretched at trial in that case because everybody was convinced he was guilty.
There is a certain finality about the death penalty that is very difficult to reconcile with the Charter.
In relation to rights of the accused, did your experiences prior to your appointment give you a healthy respect for those rights? The consensus among court watchers right now is that there is still a thin majority on many cases, but that your leaving will likely affect it.
I think I have come down the middle in many of these controversies. I think there has to be a balance between the ability of the state to investigate and prosecute crime. But as I said in relation to Morin case, rules have to be respected. Over centuries, courts have discovered – as in the case of jailhouse informants – that there are very serious problems the judges know about but the juror doesn’t necessarily know about.
So it is extremely important that the courts be quick to enforce the rights of the accused simply because when those rules are disregarded, we occasionally get wrongful convictions.
I think the level of support for the rights of the accused in Canadian society is surprising. People somehow identify with the person in the position of an accused. That was brought out recently in one of the cases involving the right to counsel. People instinctively said: ‘Look, if I was in that position, I’d want access to a lawyer because otherwise I wouldn’t understand what is going on.’
Yet, we are often told that a get-tough mentality has taken hold and is politically popular.
I don’t think it has taken hold of the court. Clearly, there is a variety of views, as there should be. That’s why you have nine judges and nine different perspectives. Although we disagree on some of the outcomes, there is a sense that this balance has to be maintained.
Still, there is a lot of concern within the defence bar, in particular, about the balance moving steadily toward upholding the authority of police and being skeptical of the rights of the accused. The right to counsel, for example, has eroded in a series of cases involving police interrogations. Could that become a concern?
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.
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.
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.
So, yes, it is frustrating. But the whole point of the Supreme Court is you are not dealing with individual judges penning their own thoughts. You are expressing the ideas of nine judges synthesized into one judgment. That is why dissenting judgments are often much more idiosyncratic than majority judgments.
As to the vanilla quality, when you see a judgment ‘by the court,’ it will quite often be the result of a process of sandpapering the rough edges, taking out the little flashes or colour and reducing it to a vanilla flavour. To take the most famous example – in the U.S. case of Brown vs. Board of Education on racial segregation – it was an extraordinarily brief judgment where the only clarity was in the result and a few footnotes that created controversy. The price of unanimity was to prune off anything that one or another judge couldn’t agree with.
I should add that, I think once you have a clear majority opinion – which of course is not always achievable – concurring and dissenting opinions are extremely useful to tell the legal community and the broader public that there is a real debate going on among the judges and displaying the different contending points of view – much healthier than a false show of unanimity because it enables commentators to weigh in with fresh insights and eventually these controversies get resolved.
On a human level, we don’t hear much about how you deal with day-to-day irritants and confrontations with other judges. There must be a huge imperative on the court to avoid having factions develop; to avoid having enmity or standoffish relationships develop.
I think there is a huge effort by every judge on the court to maintain good personal relations despite legal disagreements. Everybody agrees that if you get factions and personal animosities on the court, the whole operation could very easily go off the rails. There are instances in other courts at other times where judges have not spoken to one another. There was a famous instance on the B.C. Court of Appeal where two judges that didn’t speak to each other accidentally got on the same elevator and one of them said to the other: ‘I would like it to be clear that it is I who is not talking to you.’
So, there is an effort both institutionally and personally to avoid cabals. That is why there is so much memo writing. We don’t want judges going from room to room, pigeonholing colleagues and then presenting other colleagues with: ‘Well, I’ve already got four judges to agree with me and that’s the outcome of the case.’ So, if somebody circulates a judgment and I have comments on it, everybody should receive those comments at the same time. And the only way to do that is by shipping it out in writing. It makes for a laborious process, but at least I have confidence that my colleagues are not chitchatting behind closed doors without my knowing it.
We know from various judges’ memoirs in recent years that sort of thing used to happen a lot.
To the extent that it happens, it is extremely destructive. From time to time, when I was in practice, there were rumours of personal conflicts and so on. I don’t think this is so much a reaction to events in the past as much as an understanding of what is necessary for survival of the court as a well-functioning institution.
I’ve heard it put the opposite way – that all the visiting between chambers is a human process and the memo writing is a sign of the court becoming too bureaucratic and dehumanized; that a barrage of paper has taken the place of personal contact. But you appear to approve of it?
I totally approve. The worst fix we could get into is to have little cabals discussing their perspective and voting in blocs. The court splits frequently but it is often very difficult to predict who is in which camp. It is important not only that we don’t have them, but that we are seen not to have voting blocs. In the United States, the lawyers feel they have to pitch their arguments to Justice Kennedy, who is seen as the swing judge. But I think lawyers come to our court without knowing who the swing judge is. The swing judge doesn’t know who the swing judge is. So they have to address all nine judges. That’s why I always think the criminal lawyers who are used to jury work are so much more at home in the Supreme Court. They are used to dealing with 12 different faces. They are not focusing on one judge in the middle of the panel.
After the conference, whoever is assigned gets started and the memos begin to flow out between all nine of you continuously?
The procedure in the court has changed under Chief Justice McLachlin. Instead of starting off – as we did in Quebec Secession – pointing the finger at the most recent appointee and demanding of him, we have a general discussion of the different issues and what perspective different judges have on what the case is all about. The important issues and a preliminary view of how they should be decided. The very good reason for that is, if I were to go first and I pontificate on my perspective and then I hear different points of view, I’m not so sure that what I said was so infallible. I don’t want to feel dug in or look like putty. So it’s better to have this ventilation of perspectives and then go around the table with the most recent appointee going first.
Then, there is the assignment of the judgment writer. The memos don’t start until a draft is circulated. If, at the conclusion of the court conference, there is a consensus that we need to do more thinking before we are ready even for somebody to start drafting, then somebody may be assigned to draw up a memorandum listing the issues and different ways of approaching the issues. Then, we might have a re-conference.
We get to the point where somebody might do a draft. That is the starting point for these comment memos. I want to discuss the timing of the post-hearing conferences because a lot of lawyers used to believe – although I think they are now enlightened – that after the hearing the judges just went off for weeks and thought to themselves and ultimately started writing a decision and somehow a result would emerge. In the Supreme Court, as in almost every court – but certainly in the final courts I’m aware of – there has to be a meeting soon after the hearing because you can’t start the process of reducing a case to a decision until you know where your colleagues stand.
It is driven by the fact that we are nine judges. There is no point in assigning me to draft a judgment if I have no idea what my colleagues think. In order to, as Justice Estey used to say, ‘get this baby airborne,’ you need to have a sense of where your colleagues are at. And you can’t do that until after the hearing, when all the arguments are fresh and you can have a very concise, compressed debate because you are all on the same page.
Some judgments take as much as 14 or 15 months to release these days. Presumably these are ones where memos fly back and forth and you just can’t get consensus. Is there always a re-conference in those cases?
Frequently. It depends on the nature of the disagreement. If there appear to be issues that are irreconcilable, that’s one thing. Quite often, the issue is that different judges see the questions differently. In those cases, it’s useful to re-conference because perhaps, by discussion, we can at least have a consensus of what the case is about.
I relate this back to my years as an advocate and this perennial question of whether oral argument in the Supreme Court makes a difference. I think it makes a huge difference – not in the detail, but on this precise point of how you frame what the case is all about. Good appellate counsel will persuade the court, for example, in the child porn case [Sharpe] that the case is about harm to children. If the court concludes that is the question raised by the appeal, then you tend to vote in one direction. But if an advocate persuades the court that the case is about freedom of expression and artistic development and experimentation, then the ball starts rolling in a different direction.
It’s the art of the advocate to frame the question in a way that suits his or her interest. I think that much the same happens at the court conference. The effective judge is the judge who frames the question in a way the other judges accept as a legitimate characterization of what we have to decide.
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.
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.
One of the other things that always entertained me as a lawyer was this tremendous moment at the beginning of every hearing where the court attendant shouts: “The Court. La Cour!” And nine aging figures shuffle in to their places. I used to think it looked like Old City Hall magistrates court, where they bring the prisoners shuffling up from the cells in order, blinking in the sunlight.
Of course, in the Supreme Court, the order of the sequence changes depending on who is not sitting. I always thought we should line up in an ‘I’ formation, so that we’d know to go to the opposite of the person in front of us. But we have such a habit of lining up two by two. Sometimes people crash into each other. I remember that, as a lawyer, one day the judges were all crashing into each other and [Mr. Justice]Gerry Laforest looked at us and said: “You know, this is harder than it looks.”
Little vignettes emerge from time to time that humanize the court – such as Justice Peter Cory’s daily ritual of delivering cookies to his fellow judges. Are there any you can offer?
Well, we certainly don’t have cookies going from office to office. I think there is an effort in the judge’s dining room to bring people together. The general rule is that we don’t discuss cases. So, a lot of gossiping goes on. It’s an attempt to solidify the personal relationships, put the legal controversies in the background. It promotes the sense that as an institution; that the controversies change, cases come and go, splits come and go, but the court continues. That is what is most important – that it hang together.
What sort of gossip?
Gossip about the bar. Gossip about judges. Complaints about this, that and the next thing. It can be almost anything.
Do judges get together for dinner on the weekend, for example?
There’s a certain amount of socializing, but not a great deal. I remember going to a lecture by the first violinist of the Tokyo String Quartet once. They had been together for 34 years. He was asked what enabled them to keep together for so long. He said they never ate together, they never travelled together and they generally stayed at different hotels. And that was the secret of their success.
We have quite a number of court functions where all nine judges are present. The problem is, if you get two judges socializing a great deal, then you have this cabal problem.
Did you find that the much-discussed, monk-like isolation on the bench is for real?
I think it is for real and I think it comes more from the profession than from the judges. The judges have to be careful, obviously, not to get involved in a way that could reflect on their partiality. But I think the bar is genuinely reluctant to mix in with the judges.
I spent the year before John Sopinka’s appointment at the Sinclair Stevens inquiry. We had lunch once or twice a week for a year. Then, he went off to the Supreme Court. When I was in Ottawa and had business that had nothing to do with the Supreme Court, I didn’t call him for lunch. It’s just easier to leave the judges to the judges. You sense a great deal of that. When I left McCarthy’s, I would hear of friends of decades-old standing who had been in Ottawa and hadn’t called. Not out of any sense of impropriety. It was just: Leave him alone, he’s a judge now. Let’s get on with our lives.
When you think back to going from bar to bench, what do you recall?
An interesting impression I had on the bench was that suddenly there was no adrenaline. Here I was sitting in court, like sitting in my living room having a discussion with a bunch of friends – as opposed to being pumped up and ready for war. I think one of the other interesting things is that lawyers are essentially non-judgmental. You are retained to argue a certain point of view and you make the best case you can. You don’t sit in judgment on whether you ought to win or you ought not to win. You make the judgment that you want to win and you are being paid to win. Suddenly, you become a judge and what it’s all about is being judgmental.
I never had any trouble with the question: Would you defend a murderer who you knew had committed a murder? To me, it’s a non-question. Every murderer is entitled to a defence and if I’m retained then I’ll defend. But it’s a luxury lawyers have. You don’t have to take responsibility for your client’s position, although you have to operate within the rules. When you become a judge, your opinions do not reflect the interests of your client. They reflect your own best judgment of the proper disposition. That’s an interesting change of framework that takes a bit of time to adjust to on the bench.
How did you see the rise of the Charter’s influence?
In 1982, I was associate deputy minister in Ottawa. I was tangentially involved in the Charter. At the departmental level, we did not appreciate it would have the huge impact that it has had. First of all, the court had effectively gutted the Bill of Rights and been widely criticized for it. The Charter came along and what most impressed me at the time was that the Parliamentarians were more aggressive on strengthening the Charter than the government was. If you look back at the original draft of the Charter, equality rights were simply stated as a non-discrimination clause. It was the parliamentary committee that put in these very broad equality rights. In a number of cases, they tightened the language and inserted provisions the department certainly hadn’t recommended. When the Charter came into effect, it took quite a while for lawyers in general, and the department in particular, to understand this tremendous seismic shift that the court had undertaken and made something of the Charter.
I think a lot of that, when I look back, was due to Dickson. Because here was the old soldier who had had his leg shot off in the war. He was from Saskatchewan, and everybody knows Saskatchewan only breeds sensible people. He wasn’t a Montreal intellectual or a Vancouver la-la land product. He was the salt of the earth and when he stood up to the Canadian public and said, ‘Look, this is how the Charter is to be interpreted,’ he had enormous street credibility.
We were so fortunate as a country to have such a powerful, universally respected figure to push the Charter as hard as he did. It’s not often that history is changed because somebody happens to be the right person in the right place, but I can tell you that the difference between what we in the D of J perceived as the likely scope of the Charter and what it has become owes a tremendous amount to the street cred of Brian Dickson.
One of the great figures, of course, was Bora Laskin – Canada’s answer to Oliver Wendell Holmes. He was an absolute titan. He is almost never cited today, but his influence, I think, is really making Dickson what he was. If you read the early Dickson judgments, they are very conventional, Manitoba Court of Appeal, corporate lawyer, here-the-law-and-what-the-cases-say and here’s the outcome. Over the years, you could see Laskin bashing away at him and Dickson moving visibly into a more and more open approach to the law in general and civil liberties in particular. Laskin became a kind of John the Baptist figure.
What about Chief Justice Antonio Lamer?
I think he was seen as a much more intellectual figure. There is a wonderful simile he gave, when there was a huge controversy over whether Section 7 of the Charter was simply a procedural/due process clause or whether it involved substantive justice. Some of Department of Justice people went to a parliamentary committee and said that as far as the Justice Department was concerned, it should be read only as due process. But Lamer said: “Look, somebody comes up to you and gives you a banana and he says: ‘I’m giving you a beautiful apple.’ You say: “But this isn’t an apple, it’s a banana.” And he says: “But I’ve told everybody it was a banana!”
Lamer brought difference strengths to the Charter and made an immense contribution. But it was a different period. At the time he became Chief Justice, Dickson had already established the framework within which the public perceived the Charter.
I think another interesting thing is the shelf life of a judge. Because we all think we are part of the historical process. But reality is that, within five or ten years somebody takes up what we have said and says it better or says it more recently. So the old judges kind of fade into the wallpaper.
You have gone from a high of about 160 judgments to a low of about 60. What does that reflect about the productivity of the court?
In terms of how gruelling it is, I would say that I spend as much time working on the Supreme Court as I did with a full litigation practice at McCarthy’s. Essentially, you are working all the time. It’s demanding because even if we heard 60 appeals a year, 60 appeals is an enormous amount of paper. One of those cases might represent a trial that took six months. So, I think the statistics are essentially meaningless if you just do a nose count of how many cases are heard.
Secondly, the number of leave applications has been declining. In fact, the work in the courts has been declining. We have never, in my almost 14 years on the court, turned a case down saying: “We’ve got too much on our plate, so let’s limit it.” On the contrary, the court is actively looking for cases to bring up. If you look at the leave applications, supposing we get 700 leave applications a year. I think about a third of those are self-represented litigants. Another third are lawyers who are simply irritated at the outcome. They take the reasons for judgment, staple a notice of application for leave to appeal to it and send it to Ottawa. It raises no legal issue of significance.
So, you are really dealing with about a third of those as potential candidates. In a lot of them, what the lawyers really wants is a retrial. A lot of them apply to legal issues that the Supreme Court has already dealt with. If we brought them up, we would just be repeating what we have already said.
In some other cases, there is a very controversial provision in a statute and the court says: Let’s allow a little bit more time to get more perspectives on how this rule operates in practice before we try to give it a definitive pronouncement. There is a little bit of strategizing about whether something is ripe for a decision.
By and large, we are trying to find cases that justify a legal opinion from nine judges that will add anything to what has already been said by a Court of Appeal.
So, rather than avoiding some of the tougher or more contentious cases – as some people say the court does – it is really the opposite? You are looking for more, but they aren’t necessarily there.
It is absolutely the opposite. One of the things that always impresses me about the court is that it’s like a freight train that is moving inexorably. You come in the morning and hear a case that is highly controversial. Views are sharply divided. But the train keeps moving. A decision is produced. At the end of the day, we will all be alive and on speaking terms. We’ll be facing a new slew of decisions. You don’t have the luxury of saying: ‘Well, we don’t want to decide this case.’ In the United States, they have this opting out where they can say: ‘leave improvidently granted.’ They pretend the case never existed. We approach the fall docket and you see maybe 30 or 40 cases on it. Some of them are highly controversial but the freight train will get through it.
So lawyers are wrong if they say it’s a chicken-and-egg thing, that they don’t seek leave to appeal because the court is down to only hearing 60 cases a year?
They are getting it very wrong. To some extent, it depends on our ability to see an important legal issue. We rely on the lawyers, to some extent, to bring that out. In many leave applications, the lawyers have no idea what the rules are, what they are looking for. They spend the whole time arguing about whether the Court of Appeal was right or was wrong. We don’t care whether the Court of Appeal was right or was wrong. If it’s an important legal question, we will take it even if we think, on a preliminary basis, that the Court of Appeal was probably correct. Just as often, we will take one where we think the Court of Appeal was probably wrong. But the lawyers don’t see it that way.
There is an art to preparing a leave application, but it is easily learned. All you really have to do is look at the rules of practice and understand that your function is to kick the ball up in the air in an interesting way and the judges will grab it. You don’t have to persuade them that you’re right on the merits.
Would you have been as enthusiastic about going to the court when you were first called if you knew you would have to go to a parliamentary committee hearing to be questioned?
I think that gets into the question of appointments, and I just don’t want to get into that. We are at a moment when all of that is very current, and I don’t want to go there.
Should French be a requirement for Supreme Court judges?
The French language thing is explosive. I just don’t want to get into it. Anything to do with what the politicians are going through right now is too sensitive.
Can you address the court’s role in relation to Parliament?
Very, very often, what is left out of the equation by commentators who say the court is making up the law is the notwithstanding clause. As far as I know, it is unique that Parliament can override the court’s view of what the Charter requires. I don’t have a view one way or the other about whether its a good or bad thing, and whether it is exercised or not is a political decision made by the politicians. But in terms of the court’s authority, the notwithstanding clause was put in quite deliberately and it’s there.
Is it comforting for the court to know it’s there, that a judgment is not the absolute final word?
I think its part of the checks and balances which I simply accept as having been worked out in 1981. I want to expand on this point a bit – this idea that the judges, being unelected, get in the way of the will of the people. I think that the notion of checks and balances is absolutely essential to our Constitution. And certainly, the judges have no monopoly on wisdom. But neither does the majority of Parliamentarians.
In terms of the court’s history, it has performed a very valuable service in standing up for minorities. I go back to an earlier period which lacks the current controversy. You’ll recall that, in an earlier era, there were all these cases dealing with the Jehovah’s Witnesses and the Duplessis government, which was out to crush them and to make an example of them. The court stood up to it – as unelected people, yes, but as part of the check on abuse of power. The court said, ‘You can’t do that.’
During the 1950s, with all the Communist scare going on, the Supreme Court also interfered in a number of instances and said: ‘We’ve got freedom of speech in this country. We have freedom of belief.’ And that was even though there was no Charter. And in the 1930s, we had the Alberta Press Case. The Social Credit government said the press had to print government press releases. But the court said no – even though it was going against the majority government of Alberta at the time.
So, I think people have to take a longer view of the importance of the courts and the relationship between what the courts are doing and what the legislatures are doing.
The aboriginal question has been an abiding concern for you?
As you recall, there was this huge controversy at the time the Charter was developed as to whether there should be entrenchment of ‘constitutional matters that directly affect the aboriginal peoples of Canada.’ At one point it was in the Constitution Act and then it was taken out and Justice Thomas Berger wrote an article in your paper demanding that justice required it being put back in. Eventually it was, and the word ‘existing’ was added. But there was no definition of what aboriginal and treaty rights consisted of. What was envisaged at the time was that there would be a series of constitutional conferences that would reach some consensus as to what aboriginal rights meant and what would be their legal effect and to what extent would they be protected from legislative override and so on.
Those constitutional conferences – in which I was very heavily involved [as the federal associate deputy Minister of Justice]– failed to reach an agreement. So the whole thing was thrown into the courts with a complete lack of definition. There was an early view, particularly in the Saskatchewan Court of Appeal, that the constitutional recognition of aboriginal and treaty rights was essentially meaningless because under the traditional law, aboriginal rights could be eliminated at the pleasure of the Crown. They said that what was entrenched was the pleasure of the Crown, so aboriginals therefore have no rights.
In a series of cases, the Supreme Court said that cannot be correct; that these rights were put in for a purpose and we are not going to write it out of the Constitution by giving it no content. However, in the absence of much guidance from the Constitution itself as to what the content and strength of aboriginal rights were, the courts themselves had to begin the process of interpretation.
In a series of cases, particularly judgments in the 1990s authored by Chief Justice Lamer, there was a definite perspective taken that real substance would be put into these rights; that this was not a kind of false advertising to the aboriginal population; that the Charter meant what it said and the courts were going to give some real meaning to it. The aboriginal community has rights but it is in the context of a much broader Canadian community of which the aboriginal people are as much a part as anybody else. And the protection and preservation of aboriginal culture and rights can’t be viewed in isolation.
Getting that balance correct has occupied an enormous amount of the court’s time over the years. But in a sense, it goes back to what we discussed in the beginning. As I see it, the court is moving as best it can to interpret the provision on which the Charter expected guidance by way of Charter amendment following these constitutional conferences – guidance that was never given. Therefore, the courts have to go through this process of interpretation to fulfill what they understand was the purpose of having that provision.
It’s a very controversial area because whereas people can look at the rights of the accused and put themselves in the position of an accused and say ‘I’m in favour of the accused having rights,’ if you are not an aboriginal person, you say: ‘Well, their gains are at my expense and why should there be citizens with more rights than other citizens?’
It is in the Charter and the mandate of the court is to give effect to the Charter in a meaningful way, and that’s what they have done.
I should note that my first case in the Supreme Court of Canada was as an articling student with Bert Mackinnon [later Associate Chief Justice] representing an accused in an Indian hunting rights prosecution in 1965 – R v George. As of the Marshall case in 1999, I had been involved in some of the leading Indian rights litigation in the Supreme Court for 33 years. For over four of those years – 1981-1986 – I was Associate Deputy Minister of Justice, whose responsibilities included all of the multitude of aboriginal and treaty rights cases against the federal Crown.
Maybe this is an apt example of governments leaving things to the courts to deal with if they are too controversial?
I would disagree with that historically. As a result of my week-to-week involvement over several years, I believe that the government was ready, willing and able to do a deal on what aboriginal rights consisted of – and there was some measure of consensus among the different aboriginal groups as to what those rights should be. What happened historically was that in the middle of this process, there was a parliamentary committee, called the Penner Committee, which came down with a report on aboriginal self-government. This just threw a bomb into the middle of the process because the aboriginal leadership understandably said: ‘Wait a minute, we haven’t really thought this through. There is no way we can sign on the dotted line when we are midway through a process and we are suddenly confronted with a mega-sized issue that we haven’t had time to consult our people about.’
So, time ran out on the process. But I don’t think the government shied away from doing its best to arrive at a solution. I firmly believe that Pierre Trudeau had enough confidence and engagement that if a deal had been on the table, he would have signed it.
Can you address what you were trying to do in the Marshall eel-fishing case and what it was like to see the blowback that erupted after it?
My perspective is that, from a legal point of view, if you are to take treaty rights seriously, it was wrong to look at a treaty that gave aboriginals the right to continue trading with the British, which, in the treaty negotiations, had established an elaborate system for fisheries how much a certain number of beaver pelts would buy, et cetera. This treaty right would have been rendered a complete nullity by saying that it gives a right to trade but it doesn’t give a right to fish and hunt and get something to trade with. It just made the treaty meaningless. Others might have a different view, but that was mine. If you are to take S. 35 seriously, you had to give meaning to that treaty. That’s what I thought had been intended both by the Crown and by the aboriginal people.
Leave aside for a minute the treaty interpretation issue. I think that a great issue in aboriginal predicament is lack of employment opportunities, lack of resources, the whole welfare problems, socio-economic problems. It was intended by the British when dealing with the Indians that they would be self-sufficient. Here was an opportunity which the British saw and which I think the treaty embodied – the right to work. And the right to work carries with it self-respect.
In the end, the government arranged for certain commercial fishing licences to be issued to the aboriginal people and the situation seems to have settled down. So, I think that in this case, the legal result and the policy result coincided. We were only concerned with the legal result. But I was surprised that in policy terms, the blowback you describe was inconsistent with the usual thing we hear about: ‘Well, why don’t the Indians don’t go out and get a job?’ And yet, they shouldn’t have this opportunity based on an early Indian treaty?
Do you wish you had altered or tightened the meaning of the Marshall decision, or do you see it as a case of the media grabbing hold of a case and playing with it?
The reaction was what it was, and the decision is what it says. I can’t dwell on every judgment I have written.
Can you usually anticipate how a judgment will play in the press and public?
It’s quite surprising. Some judgments, you expect to be highly controversial and they’re not. Other judgments which you think are pretty standard stuff suddenly blow up into huge controversies. And this is why, when people say, ‘Is the court conscious of the media reaction,’ I say, ‘No, because we have no idea what the media reaction is going to be half the time.’
Can you give example of a reaction that didn’t come or where you were surprised when there was one?
I would say that the succession of right-to-counsel cases were an example of where I didn’t expect so many people to get involved and express opinions and to have a controversy rage. There was also judgment written some time ago on jury instructions on reasonable doubt. It was a really straightforward explanation of reasonable doubt was all about, but it became very controversial. The Attorney-General of Ontario said: ‘Oh, this is going to open up all sorts of cases.’ It blew over without incident, but it was a surprising reaction.
When you were appointed, you already knew the Supreme Court well from being a lawyer. But was there nonetheless anything that did surprise you once you got there?
As you say, I appeared quite frequently in the Supreme Court over the years. I had probably done as much Charter work and constitutional work as most judges get to see on the courts of appeal since most of them did private law or routine criminal cases. So, I had an expectation that I would simply be leaving the counsel table and marching up to the bench and looking down instead of looking up. I would be reading the same sorts of factums, reading the same case law. Instead of writing factums, I’d be writing decisions. But that would be the extent of it.
What you slowly become conscious of, particularly in the Supreme Court, is that you are a custodian or trustee of the well-being of the legal system. And in particular, of the Constitution. That you should leave the system at least as healthy as it was when you got there – and with some good fortune, with a few upgrades and improvements.
I see it as a giant relay race where the baton is passed from judge to judge to judge to judge. You are there for a short time and you have a huge responsibility to make sure the baton isn’t dropped on your watch. That sense of responsibility, when you think about it, is obvious. But until you feeling it weighing on your shoulders, you cannot appreciate it.
Did you expect to be here as long as you did? Or did you expect to serve until your last day before mandatory retirement?
I certainly did not expect to leave prematurely. I’ve always believed in leaving a job at a time of my choosing rather than get booted out – especially on account of old age. The reality is, I’ve always been something of an itinerant lawyer. I was in private practice; then I went off to Tanzania as a legal counsel. Then, I went back into private practice, then to be associate deputy minister. Then back to private practice. In fact, the time I’ve been on the court is the longest period I have ever been in a particular position. So, the timing seemed right to go, so I went.
You don’t view leaving two years before mandatory retirement as premature?
No. This is the right time to go. We’ve also got an issue on the court with a bunch of judges coming up for retirement. I don’t say this is one of the reasons I’m going, but it works out you don’t want everybody leaving at the same time. So it spreads it out a bit.
Was the concern about too many judges leaving at the same time a reason you went?
Its one of these things I’m aware of, but it wasn’t a driving factor.
How alive is this concern about too much changeover coming in a short period?
Every time even a single judge changes, the dynamic shifts. You miss the input of the judge that left and you suddenly have new input from the judge that arrives. When you have two judges, the effect is multiplied. It takes a while for the new equation to stabilize.
What about if one left every six months until the changeover is complete?
The court would be in a continuous state of turmoil.
There has been criticism of the role of Supreme Court law clerks to the effect that they are too involved in drafting decisions?
The role of the law clerks vary greatly from chambers to chambers and from judge to judge. The great strength the law clerks bring is their research capacity. They grew up in an era of electronic legal research and their skills in that regard are quite remarkable. My view is the law clerks should be separated from the decision making. They are a resource. My own practice is, I write the judgment from scratch. I will usually dictate what would be an oral judgment as if I am delivering an oral judgment. Into that oral judgment, I will then put questions to the law clerk – ‘One of the counsel mentioned this line of cases – shall we see if anything else has been written on this?’ Or, ‘One of the lawyers mentioned some evidence form one of the witnesses on this point – can you find all the evidence on that point?’ The law clerk will come back with my draft and insert in bold point over my questions. They can feel perfectly free to comment. Sometimes it is very useful commentary. But the rolling draft can only be changed by me, first to last. And it will quite often go through ten or 12 iterations as it slowly takes shape. Quite often, what emerges at the end is quite different in tone and style from the way it started out.
When you talk about the number of judgments we hear, let’s suppose we are talking about the bottom end of the spectrum – 60 judgments. That still involves preparation of 60 appeals. I spoke earlier about the lack of a dedicated Supreme Court bar. Quite often, the factums are not as helpful as you would hope. Therefore, the law clerks in those appeals pull together a bench memo that says: ‘This trial went on for six months but actually, by the time it gets here, there will only be two issues outstanding. You only need to read paragraphs 550 to 620, because that’s all the judgment says about the point you’re dealing with.’ Well, that’s a lot better than my having to sit down and start at paragraph one to try to find out where in the judgment the relevant material is.
Could their influence lead to a slippery slope where, while it may be your practice to keep them at bay, another judge relies too much on them and they become overly influential?
I think there is a risk. The judges are aware of the risk. I think the law clerks are aware of the risk. They are instructed when they arrive at the court that they are to assist the judges in the judge’s work and that is the limit of their role. They are not to push their agenda nor are they to push their views of what the proper outcome of a case should be. So, there is a danger but we do what we can to counteract it.
Have there nights where you took a case home and lay awake, going over and over it because the mantle lies so heavy upon you?
There were many cases where that happens. I find that when I’m caught up in writing a judgment it can affect sleep patterns. It can intrude in your thoughts at any time, day or night. It doesn’t depend on the level of controversy of the case.
I’ll give you an example of the reverse – the Robert Latimer case. It was a hugely controversial case, but to me, the legal outcome was straightforward. You can’t have people making their own judgments as to whether their child should live or die. In saying that, I make no moral judgment at all about what Latimer did. I accept his word that he did it because he thought it was best for his daughter. But the legal decision wasn’t his to make. But the law is clear. When you talk about judges applying the law and not making it up, if the Criminal Code is clear about the penalty that follows for the crime of homicide, then that is the penalty that follows. You can’t apply the law differently from case to case to case depending on a judge’s personal view of whether a constitutional exemption is warranted.
So, there is no necessary correspondence between how much you agonize over a decision and what the moral implications or the controversy is outside the courtroom. My only function in that case is the right legal result. In that case, the legal result was clear. My personal views of whether it was a good outcome or a bad outcome were irrelevant.
Can you think of any cases where you were kept awake?
We can go back to the insurance case – Whiten and Pilot. There is a huge controversy as to whether you should ever have punitive damages in a contract case. The prevailing view among the academics is that you couldn’t. Now, that’s a fairly dry controversy in terms of public perception and there weren’t many editorialists clamouring on one side or the other. But in a system of contract law set up just to deal with compensation, how do you introduce the idea of punishment and still have it intellectually coherent? That was a very difficult legal issue.
To what extent is the media responsible for miscommunicating central issues about judges and the courts?
The media has some responsibility, certainly. On the positive side, if it weren’t for the media, nobody would know about Charter cases and Charter controversies, and the Charter wouldn’t have nearly the public support it has. So the very fact that the media is out there explaining to people what it is all about has had the effect – whether the media intended it or not – that there is very broad public support for the Charter even though particular decisions may be controversial. On the whole, people say its a good idea that we have it.
On the negative side, reporters are looking for items that are newsworthy. If you are on a dull news day and a decision comes down that is on the face of it, pretty dull, I’m sure you pour through it. Newspapers in general, and the electronic media in particular, do not see it as a priority to explain the legal system to its audience. But this means that if a controversial case comes out, the public is ill-prepared in many cases to put it in context and to understand what is going on with the decision. I use the example of the funhouse mirror. When I read a decision that I’ve written, I recognize it in the funhouse mirror but it doesn’t quite look like my face and it doesn’t look like my distended arms. On the other hand, I’ve had months to work on the ruling and you’ve had hours to distill an explanation of what it’s all about. I think editorial writers bear more of the responsibility because they have longer to think. As often as not, the problem lies with the editorial writers staking out a view that has very little to do with what I think a judgment says.
Press rights issues have always interested you both in practice and on the court. It seems the central question to some recent decision that, with all the blogging and so on out there, what is the media? What is a publication? Has this put a constraint on how the court deals with these cases?
That is a tremendously important issue because, for example, in the cases dealing with journalistic privilege, it’s one thing to say that The Globe and Mail and National Post are responsible organizations that have codes of conduct and certain situations where they extend anonymity to a source and certain other situations where they won’t. But where do you draw the line between Kirk Makin of The Globe and Mail and Fred Smith, who is doing a blog on some anonymous tip, who writes some incredibly defamatory remark accusing some political figure of rank corruption, the blog goes viral and the politician is at a loss as to how to answer it? There is a saying that a lie goes around the world before truth gets its shoes on. So I think courts are extremely cautious when they are talking about special rights of the media. The media is a very amorphous concept and there are a lot of people who are going to claim the benefit of the privilege who are not what we would regard as full-time, responsible journalists.
Does this reality become something of a curse for established media who are trying to ground rights?
What it means is that the ever-broadening scope of the media may compel a different view of media rights than what we had when there were a few newspapers and radio stations, all of which were quite tightly disciplined.
Who will have to establish who the press really is – the press itself or the courts?
I think clearly the press has to think through what its responsibilities are and impose self-discipline.
And will the press define who is its membership?
No, I don’t think the press can self-define. Ultimately, it will be for the courts to develop these principles in a media-neutral sense. Which is what I tried to do in the National Post case. It was to say, ‘Look, if you are a blogger and you come within this public-interest defence, then you have the advantage of this defence. And if you are from The Globe and Mail, you have no greater rights than the blogger but it may be easier for you to establish the public-interest defence because you are functioning within a disciplined environment which is conducive to establishing your entitlement.’
Is it fair to say that a significant part of what you stood for on the court was an attempt to bring reality to many areas of law, to do away with exotic interpretations and ground the law in reality?
I think that is correct. Because of my background as a practitioner, I think the law has to work in practice. As a practitioner, you realize the horrendous cost of going to court. You have to make the law as predictable as possible. You have to make the system conducive to the settlement of mediation of disputes. Quite frankly, most practitioners and litigants aren’t really interested in the theory of the law. They want to know what the outcome is. Over the period of my life in the law, we are moving more and more from a rules-based system to principles. Instead of pointing to a rule and saying, ‘That’s the rule and here’s the outcome,’ the courts say, ‘Well, the principle is this.’
An example is the hearsay rule. Intellectually, it is a very positive development. The law should be about principle rather than black-and-white rules that have lost their purpose. But you have to formulate the principle in a way that people can understand and apply it. I think that is an institutional responsibility.
Could you feel rest of court looking to you in for that practical application of reality in the trenches, since you came straight from practice?
I don’t think so. When we get around the conference table, whether I spent my life in income tax law or not, I have an opinion on the issue that is before the court. I express that point of view. I think it’s terrific that there isn’t deferral to supposed expertise. First of all, it would completely undermine the idea of nine independent minds trying to focus on it. Secondly, the person who has been immersed in it most of their career might not see the forest for the trees. What they know might be conventional wisdom, but it might be wrong.
Junk science was one of your bugbears? You are concerned about the quality of evidence and experts?
I think its essential that people who bring their problems to the court go away, particularly if they lose, confident that the court has understood what the problem is and therefore have reached a rational conclusion, however much they might disagree with it.
In scientific matters, I did a lot of work in intellectual property when there was scientific evidence led – sometimes in easy and sometimes in difficult issues of science. In some cases, the science was unsettled, but the judge has to make a decision. Where scientists fear to tread, the judge has to say, as far as I’m concerned, this is the answer.
I think it’s important that the courts appreciate that the adversarial system may not be the best way of getting at scientific proof by having two experts stand up, a month apart, and give totally contradictory views of what the science says. It puts the judge in an extremely difficult position.
There was a great case in England where the judge was confronted with, I think, tranquillizers. Two great fat reports were written in algebra. A judge who had spent his entire life doing car crashes came down on one side and was denounced by the entire scientific community, including Lancet, the medical journal, for having totally messed up. Well, was it the judge’s fault? I don’t think so. I don’t think it was presented to the judge in a way the judge could digest and reach a reasoned conclusion.
But I think its the responsibility of the judges to say: ‘Look, if you’re not spontaneously going to come up with a way of presenting this information in digestible form, then we are going to have a pre-trial seminar; we are going to have the experts in the room and I’m going to get the lawyers out of the room, and we’re going to have a discussion about what the science is all about. Then, you are going to tell me what is the narrow range of disagreement. Where is the real problem here?’ And then we will go into court and argue about it. We’ll put all the defendants experts and all the plaintiffs experts in the box at the same time, and they can have a giant argument in front of me. I guarantee you that the experts will be much more circumspect when they have Dr. So-and-so with an opposing point of view sitting next to them, rather than if they know that Dr. So-and-so isn’t going to come to the trial for another month.
In other words, you have to bring about this collision of perspectives in a way that is clear to the judge that’s clear what the problem is, and then the judge can resolve us.
As it is now, in some of these patent cases like ones I was involved in, the judge said: ‘Well, I believed such and such an expert because he gave his answers in a straightforward way and he wasn’t shifty-eyed.’ That’s the way you might describe a witness to a car crash, but it has absolutely nothing to do with whether the expert was talking rubbish or not.
At the court, we had a very interesting day a while ago – a day on nanoscience. This was arranged through somebody, a physicist. A number of nanoscientists got together to describe what they are doing, including a Nobel Prize-winning physicist. It just blew us away what these people are doing. This had nothing to do with a particular case.
We ought to open up our horizons and learn what the rest of the world is up to. We had a Nobel Prize-winning physicist talking about quantum mechanics and quantum computers and how you can actually construct subatomic particles to facilitate, for example, medical procedures to prevent scar tissue from forming using nano technology.
I think all of us were stunned at the contrast between the complexity of what they do and what we do. Here we are, wheeling around in mortgage remedies, yet these guys are holed up in laboratories at the absolute frontiers of human knowledge. There are going to be patents on nano technology that are going to be in dispute and come before the court, and the contending parties will want to believe that the judges understand what their issue is.
Should you institutionalize those days where the court gets educated in certain areas?
I think it’s a good idea. We do have them from time to time. You have to be careful that you’re not being instructed in some issue that is currently before the court or about to reach the court. But I think this exercise in nanotechnology was exceptionally useful because you were not only exposed to the substance of what they were doing but what they thought about what they were doing.
We talk about evidence. Scientists do too. But we don’t mean the same thing. To them, it’s some support for a hypothesis. For us, its probative to a result in the lawsuit. You have to somehow get on the same page with areas of controversy in society at large that the lawyers are not expert in. One of the great advantages and joys of being a lawyer is you get into all sorts of areas other than the law because you are constantly dealing with other people’s problems that bring you into their world. I think the courts have to be more systematic. I think the courts recognize they have to be more systematic. And, of course, one of the issues we haven’t discussed is this whole business of alternative dispute resolution. The courts have to offer a credible alternative to the parties saying, ‘Well, let’s get three nanoscientists on a panel of arbitration and they’ll decide.’ Because they might know the science, but they know nothing about the law. You got to bring these worlds together.
What sort or problems do you see with access – it goes beyond simply lawyers charging too much? Are there any particular reforms to court system that we ought to direct ourselves to?
I think there is enough fault to go around. I think that lawyers expand disputes way beyond what it’s worth because they want to win the case and they don’t know whether this avenue they are abandoning might, in fact, lead to the winning piece of evidence or the winning argument. So, they will push the envelope on pre-trial arguments or pre-trial disclosure or pre-trial discovery or Charter applications and motions as far as they can in hopes of finding the pot of gold that will get the result they want.
Judges, on the other hand, are very concerned about cutting off potential avenues of getting to the right result.
The problem is, that in attempting to get to the right substantive justice, you work a procedural injustice. Because if I have a Volkswagen problem, I can’t afford a Rolls-Royce solution.
The trial judges are concerned. We had a criminal case a couple of years ago where they had spent something like 130 days on pretrial motions. It wasn’t that complicated a case. At least, it didn’t appear to be once it got to us. But the trial judges are concerned that well, if I cut the lawyers off, the court of appeal is going to reverse me and send it back for a new trial. Better to sit here and listen.
I think that eventually, trial judges have to take back control of the courtrooms and I think they’ll only do that if they are confident they will be backed up by the appellate courts. Personally, I think that we may reach the point they have in some of the states south of the border, where they tell people you have three weeks to try this case: ‘I don’t care what witnesses you call. I don’t care how you go about it. I’m telling you that after three weeks, I’m out of here.’
It started with jury cases in criminal matters. It expanded to jury cases in civil matters. I gather it is now broadly done in judge-alone cases, and it works. Because the lawyers say, ‘I’d like to argue about a hundred issues, but if I’ve only got a week and a half of the three weeks, then I’d better pick four or five of real significance and then call my evidence on those issues. And my learned friend will do the same and we’ll have a compressed, highly focused trial on the issues on which we, the lawyers, agree ought to be the fulcrum on which the case turns.’
This has echoes of what Ontario Court of Appeal Judge Michael Moldaver has been saying about the expansion of Charter motions. He has been attacked for it by defence bar in particular, who say these issues have to be argued. Do you agree more with him on this? That the Charter is getting out of hand?
I see it as potentially putting the system in jeopardy by imposing costs that nobody can afford including the state. I don’t see it as peculiar to the defence. We recently had a case where we divided. I was in the minority on the result, but everybody agreed that my formulation of the law was correct, which was cold comfort. It had to do with post-offence conduct. In that case, it was the prosecution saying after the offence, the accused did this, that and the next thing and this proved consciousness of guilt on the part of the accused and was probative. There, you have the prosecution pushing the envelope. They say, well, now that the courts have put post-offence conduct on a principled basis, we are not limited to a very narrow category of conduct that used to be the rule. Here’s this evidence; I’m going to try to get it in. The defence objects, there are motions, and the case goes on.
The whole point about being a lawyer is to push the case as far as you can and get the result your client requires. If the door is open, you’re going to go through it. I think that over time, consensus is developing within the legal community – including the judges – that the trial judges have to be more aggressive and they have to have reassurance that appeal courts will back them up. And there has to be some modification of the adversarial system to make the process proportional to what is at stake.
If you have a first-degree murder case and somebody facing 25 years in prison, well, there has to be more latitude than if you are dealing with a break and enter where the lawyers want to go into all sorts of sideways and byways in hopes of finding something useful. Or the prosecution wants to explore similar fact evidence which really isn’t similar fact evidence, but if they can get it in front of the court, would be dynamite.
So more than anything, these come down to the trial judge controlling the process?
The trial judge is the centrepiece of the system and I think the trial judges are frustrated as much as the defence bar or the prosecution or the legal community generally at what they see as unnecessarily long trials. And they are working towards solutions and ultimately, I think the solution is to modify the procedure to fit the issue before the court.
Do you have concerns about availability of legal aid in civil, family or criminal?
I know there is a huge dispute over legal aid but I’m so far removed from how the legal aid system is operating that I can’t really comment. I do want to make the point that we see every day, lawyers who are carrying cases to the Supreme Court they are obviously not being paid for. Yet, they believe so strongly that their case is just and they are professional enough to know that if it’s going to succeed, they have to push it forward at their own expense. To me, it is a tremendous affirmation of the strength of the profession that we still have a lot of people who take their professional responsibilities tremendously seriously and throw aside a lot of profitable work to go after why they became lawyers – which is to do justice.
Is there too much emphasis on high fees and these other elements get lost in that?
The high fees are a reflection of what the market will bear. There is no doubt that lawyers’ sense of entitlement has greatly increased over the time I’ve been at the bar. Lawyers didn’t used to expect to be as wealthy as their clients, whereas now, their clients hope to be as wealthy as their lawyers. But there are still an awful lot of lawyers out there working at low fees, doing pro bono work, taking on legal aid cases because they believe that’s their function. So, there is no doubt that access to justice is a huge problem, but I don’t think its as simple as blasting a few Bay Street firms for what seem to be very high legal fees.
You’ve seen a lot of cases involving tough sanctions. What are your feelings about the virtues of getting tough; using prison as an instrument for reform, and so on?
I’m not going there!
Are you planning to practise? Mediate? Arbitrate?
I will link up with a law firm in Toronto. I don’t know where. I really can’t talk to anybody until I’m free of the obligations on the court. But I’m not planning to walk around Africa. I’ve already done that. I think the market for aging litigators who spent some time on the bench would be opinion work, arbitrations, mediations. It depends very much on your interests. Some of my colleagues are interested in corporate law and have gone to sit on boards. I’ve always loved the kind of life and energy of a law firm. Controversies. Competitiveness. The sense of engagement. I look forward to getting back to that.
What will you miss the most?
What I’m looking forward to is return to what I very much liked before I went to the bench, which is the atmosphere and camaraderie of a law firm. What I will miss is the sense of being at the centre of legal events and having one voice amongst nine as to how they should be disposed of. It’s an extraordinary privilege to be called on to contribute at that level and it was huge honour to participate as much as I did. I sometimes think of the Supreme Court of Canada as an engine for making decisions. I hope I have emphasized enough that it has been an exceptional honour and a privilege to serve on the court for almost 14 years.
Summing up your judicial career, what legacy would you like to leave? The writing you did? The role you played in persuading the court in conference? A certain area of law you influenced?
I would say my hope is that I’m regarded as a judge who met issues head on; who didn’t slide off the point or twist the law or mess around with the facts. That if there were difficulties with a particular case I faced up to them and dealt with them as best I could, so particularly the losing party might say: ‘Well, I disagree totally with what Binnie wrote, but I have to admit he dealt with my arguments and whether I agree with him or not, it was an honest judgment.’
I would like to be remembered as a judge who didn’t shy away from the most difficult issues but tackled them head on with blunt honesty. Beyond that, if it doesn’t sound too corny, I think what my decisions show is a profound belief in a decent and civilized society where the law affords people as much scope as possible to make whatever they can of themselves, but an equally deep belief that the people have to take responsibility for whatever it is that they decide to do.