Column
Y. Y. Zhu
Y. Y. Zhu teaches Politics at the University of Oxford. He has degrees from McGill and Cambridge universities. This column will appear in print in The Dorchester Review Vol. 10, No 1, Spring-Summer 2021.
OTHER COUNTRIES have public intellectuals; Canada has Supreme Court judges. It is well-known that no decision of public importance is final unless the Nine have given their opinion. But even off the bench, they occupy an outsized place in the “national conversation.” They are the subject of excruciating puff pieces in newspapers; their extra-judicial utterances are reported as oracular wisdom. When Donald Trump challenged the results of the presidential election, readers of the Globe and Mail were treated to the digressions of four retired Supreme Court justices for no obvious reason (Louis LeBel on court packing: “President Roosevelt badly burned his fingers when he attempted it back in 1937.” Insightful stuff.) If they wanted to hear from a serving justice, they could simply read what Rosalie Abella had to say about Trump and populism, again reported breathlessly by Canadian media, who love to point out how many honorary doctorates she has received (39 at the last count). To recognize their unique wisdom, retired Supreme Court justices are almost automatically appointed a Companion of the Order of Canada, an honour ostensibly awarded without regard to rank or office (the Chief Justice chairs the selection advisory committee).
No scandal is a scandal in Canada unless at least one retired Supreme Court justice has been involved. When the Privy Council Office launched an inquiry into Julie Payette’s human resources practices, her first reaction was to hire a retired Supreme Court justice. When a legislative clerk in British Columbia misappropriated some alcohol, no less than the former Chief Justice conducted the investigation. When the SNC-Lavalin scandal, a new low in Canadian public life, broke out, four retired justices were called up by the warring parties. Frank Iacobucci was retained by SNC-Lavalin, then hired John Major to write an additional legal opinion, and sent the file to Beverley McLachlin, another erstwhile colleague. Meanwhile the Prime Minister’s Office asked her to mediate in the dispute, which she wisely declined to do. And when Jody Wilson-Raybould was forced out of Cabinet, she, too, hired a retired Supreme Court justice as her lawyer on her way out, lest her grievances be thought of as trivial.
BUT IT WAS not always thus. For decades after the Supreme Court’s establishment, its members led lives of a most respectable obscurity. They had little interest in becoming philosopher-kings or national oracles for the fledgling dominion, nor could they have had they wanted to. For one thing, their court was held in low regard for a long time after its creation. Regular attempts were made to abolish it, which were only defeated when Quebec took up the cause, which led, in the Canadian manner, to English Canada rallying around it. Appeals could go directly from the provinces to the Privy Council in London, the fons et origo of British justice, where the real stuff could be obtained instead of the colonial imitation. Supreme Court judges delivered long, rambling opinions ad seriatim; the Quebec judges wrote in untranslated French which no one read.
In fact, many did not even want to be there. They were required by statute to live in Ottawa, which in those days was an even more punishing prospect than it is today. The Ontario appellate bench was thought to be superior to the one in Ottawa both in quality and in lifestyle; doubly so in the case of Quebec, since there were only two civilians on the Supreme Court. It was not infrequent for offers of preferment to the court to be refused. Mackenzie King spent most of 1924 begging Eugène Lafleur, a prosperous Montreal lawyer, to accept the chief justiceship in succession to Sir Louis Henry Davies (“few if any of his judgements have been cited for their cogency” is a modern verdict). Lafleur literally cried hot tears of gratitude, but despite the promise of an immediate imperial privy councillorship he absolutely refused to abandon his mansion on Peel Street. The standing of the early Court can be gauged from the fact that in 1905, two justices — a third of its complement — retired after two years’ service: one to return to private practice, the other to serve as a Railway Commissioner. It did not help that they were also two of the best ones. In 1918 Chief Justice Sir Charles Fitzpatrick retired to take up appointment as Lieutenant Governor of Quebec, which even in those days was an ornamental sinecure.
The first justice to figure in the national consciousness was Sir Lyman Duff, the youngest man to be appointed to the Court and its longest serving judge. Entirely forgotten today, in his lifetime he was said to be not only the greatest Canadian jurist, but an adornment to the Empire. During the first conscription crisis Borden thought of him as a potential prime minister even though Duff was a Liberal. Later, King thought of appointing him governor-general. Very important was the fact that British judges approved of him, a decisive consideration even for nationalists. His obituaries said that he carried on a correspondence in Greek with Lord Haldane, the British lord chancellor; there is one letter from Duff in Haldane’s papers, in plain English.
The praise Duff received was extravagant, at times absurd. W. Kenneth Campbell, his admiring private secretary, later reminisced that:
How often and by whom? The source was his Ottawa Citizen obituary, as it turns out. As evidence, Campbell added that he once made good dinner conversation with Sir John Cockcroft, who won the Nobel Prize in Physics. (A similar claim was made on behalf of Jan Smuts, evidence that colonial cringe was not a uniquely Canadian phenomenon.)
JUDICIAL reputation is a fleeting thing, but even making allowance for the vicissitudes of time it is impossible to see what the fuss was about. A later commentator wrote:
In other words, Duff was a judge of the old school, who found the law and largely left it as it was. There was no shame in that — indeed many still think this is a rather desirable characteristic in judges. But Canada was preparing to ditch appeals to the Privy Council, and for that to happen Canadians first needed to believe their judges were as good as anyone else’s. Moreover, Canadian nationalism needed heroes to embody the young nation’s aspirations, and unhappy the land that needs heroes but has no one suitable. Duff happened to be available, willing to serve and, frankly, one of the few plausible candidates. Thus, he not only had to be a great lawyer, but a great intellectual as well (“his knowledge extended over every branch of human science,” according to his successor), a great imperial figure, and so on. His drunkenness — he once drank so much that he was absent from the Court for a week — was glossed over sub silentio, although he was badly mauled in the press for helping Mackenzie King whitewash the government’s bungling over the fall of Hong Kong. The cult of Duff eventually waned, although even today he is sometimes called Canada’s greatest judge without anyone really knowing why. A precedent had been set.
After Duff no suitable judges presented themselves for lionization for some decades. The post-war bench was of better quality, but its members were colourless judicial technocrats. The mantle eventually fell to Bora Laskin, who became a puisne in 1970 and Chief Justice in 1973. Hitherto the custom had been to promote to the chief justiceship the most senior puisne, but Pierre Trudeau wanted someone a bit more exciting, more in sympathy with his new vision for Canada. Laskin, who had bold ideas about judges reshaping Canadian society using “social facts” (the sort of thing normally reserved for the legislative process) was duly promoted, though he was not the most senior justice. Laskin was an academic by background, a career choice not wholly of his own making, for he was Jewish and suffered from discrimination when he tried to enter legal practice. Instead, he taught at the University of Toronto, at a time when legal academics were a rare species in Canada, and wrote caustic attacks on the Supreme Court’s intellectual sterility. And he had acquired some international standing, which then as now mattered enormously to the Canadian psyche.
Now he became a national figure, the first of the great Canadian judicial philosopher-kings which we have grown accustomed to. The court became known as the “Laskin Court,” one of the many Americanisms which entered the Canadian mind in those years. Judges of the old type had been happy to lunch at the Rideau Club every day and to read quietly in their chambers until they retired. Laskin, who knew what good fun it was being in the spotlight, broke that mould, and gave interviews freely. But in truth he had trouble keeping his conservative flock in line and ended up becoming the “great dissenter” (another snappy American coinage). Laskin died in 1984; his misfortune was that the Charter, which bisects Official Canadian History neatly into BCE (Before Charter Era) and CE, was still in its infancy at the time. He had missed his chance to shape its reception, and as a result he is not much cited today. Periodic public tributes focus at least as much on his impressive life story as on his contributions to Canadian jurisprudence from which he ostensibly derives his fame.
But times were changing. The advent of the Charter gave Supreme Court justices powers unimaginable a generation before. Some disclaimed any sense of excitement — Bertha Wilson famously claimed that the judges were unwillingly dragged into the business of governing by the Canadian masses. But now that democratic self-government was to be vitiated by a gouvernement des juges, the prestige of the Court and of its members had to be increased by every means, so that Canadians would accept the new order of things.
THUS FAR, the Court’s judicial celebrities had been one-off iconoclasts. Brian Dickson, Laskin’s successor, began to browbeat his colleagues into the media spotlight. The revolution had already begun in 1980 when Laskin allowed television cameras to record Louis-Philippe Pigeon’s retirement ceremony. One of the old guard, Pigeon had killed a 1975 plan to make a documentary about the Court; the symbolism was unmistakable. Dickson took other great strides. He allowed CTV and Radio-Canada to film documentaries about the Court and badgered his colleagues into taking part. Viewers had the privilege of seeing Dickson horse-riding, Willard Estey playing tennis, and Antonio Lamer showing off his gun collection. He even pressured recalcitrant judges to allow camera crews to film their dealing with motions in chambers. Others in the profession took the hint. When John Sopinka was appointed straight from the bar in 1988, his first public act was to give a press conference.
Judges had always spoken to bar associations meetings and the like, but now they also began to wade into live political controversies in their speeches. This made sense since they were increasingly the final decision-makers on those issues, from abortion to assisted suicide to how much money they should be paid (a lot) to how should Canada be broken up. Journalists wised up and began reporting their speeches to divine their intentions. Relations between the press and the Court became ever more intimate. In 2004, Beverley McLachlin gamely instituted media lockups, a practice not as far as I know adopted in any other country, but then again not many supreme courts have their own mascot — an ermine-clad owl called Amicus. The lazy journalist can listen in to the pre-judgment briefing by the Court’s Executive Legal Officer, challenging the idea that the Court’s work had something to do with solving a dispute between litigants, who don’t get to sneak a peek. Or they can copy-paste the Court-produced summaries of its judgments, which are written with a greater tone of authority than the judgments themselves. Dissents are not mentioned in the main text. Lord Diplock once said that the common law was a maze not a motorway; in Canada it’s a one-way autobahn from Wellington Street.
Under Chief Justice Wagner the Court has gained its own heraldic badge and even its own flag, a simulacrum of the Pearson pennant with nine maple leaf-filled squares in the middle, to symbolize the Nine. It will be flown whenever the Court is sitting to “serve as a visual expression of the independence and role of the Supreme Court of Canada,” lest anyone confuse the Court with, say, our legislature en titre. After all, as Justice Abella wisely put it, “a Supreme Court must be independent because it is the final adjudicator of which contested values in a society should triumph.” Not retired yet, her name is already being floated as Wagner’s successor as the Queen’s representative. American unitary executive theorists have nothing on their northern brethren.
The remarkable thing is that individual Supreme Court justices, with notable exceptions, are as anonymous as ever on an individual level. There are exceptions: Louise Arbour was the heroine of a made-for-TV movie, and Beverley McLachlin’s retirement received the sort of obsequious front-page coverage formerly reserved for minor royals who came on tour (her memoirs sold well; no doubt a film will follow. Not many seemed bothered that she considered naming her dog after the Prime Minister). In Quebec, Claire L’Heureux-Dubé became a folk hero of sorts for her stance on curbing religious minorities’ rights. But for most justices, what matters is their ontological status qua Supreme Court justice, a label which instantly elevates them to the first rank of the Canadian cursus honorum, without any reflection on whether a bunch of old lawyers, however worthy, should have the final say over how the country is run and serve as the guardians of our national conscience. Maybe someone can ask the Chief Justice at his next press conference.
Y. Y. Zhu teaches Politics at the University of Oxford. He has degrees from McGill and Cambridge universities. This column will appear in print in The Dorchester Review Vol. 10, No 1, Spring-Summer 2021.