MARCH 12, 1981
What Everyone Should Know about the Supreme Court of Canada
AN ADDRESS BY The Right Honourable Bora Laskin, CHIEF JUSTICE OF CANADA
CHAIRMAN The President, Reginald Stackhouse
Ladies and gentlemen: The Empire Club of Canada is privileged to be addressed today by the Chief Justice of Canada. Although the club has been visited by every Prime Minister since Sir Robert Borden, this is the first time that an incumbent chief justice has spoken to us. The privilege is all the greater because this high office is occupied by a jurist so eminent in his profession, so respected in his nation.
But in a sense this meeting is a kind of homecoming, so much of Chief Justice Laskin’s professional life having been spent in this city, so many of his audience being former associates and students.
Born in Fort William, Ontario, he came to Toronto as a university student. After further study at Harvard and a call to the bar, he joined the University of Toronto law faculty in 1940, and taught either there or at Osgoode Hall for the next twenty-five years.
His reputation as an academic lawyer in those years was widespread, especially for well informed, carefully balanced opinions that were phrased in judicious understatement–such as this quotation from his classic work on constitutional law: No amount of care in phrasing the division of powers in a federal scheme will prevent difficulty when the division comes to be applied . . . The British North America Act has not escaped this difficulty.
Possibly the Chief Justice agrees with that now more than when the professor wrote it!
These years in academe ended in 1965 when he was appointed to the Ontario Supreme Court. Like Felix Frankfurter, he may have felt a man could desire no better title than to be called a professor of law, but fortunately for their countries, both men heeded the call of the court.
After five years, he was translated to the Supreme Court of Canada, and in 1973 he was elevated to the highest judicial position in the land.
The wide respect in which he is held is clear from the long list of honours he has received: Fellow of the Royal Society of Canada, Fellow of the British Academy, Honorary Bencher of Lincoln’s Inn, Chancellor of Lakehead University, honorary doctorates from twenty-two universities.
The club is truly privileged to welcome today such a distinguished jurist, a lawyer’s lawyer, and a great Canadian, the Right Honourable Bora Laskin.
CHIEF JUSTICE LASKIN:
Mr. Chairman, ladies and gentlemen: I am grateful to Dr. Stackhouse and to his associates of the Empire Club for giving me this opportunity and this splendid platform to speak to you about the Supreme Court of Canada. If, as a former teaching colleague of mine said, every man has only one speech, I am probably doomed to haranguing audiences on this one subject. It is not without purpose that I pursue it this afternoon. My object is to rid you of any notion that the Supreme Court is remote and that its decisions have no bearing on your day-today lives. You do not have to be a litigant before the Court to be affected by its judgements.
Such is the character of the cases that come before the Supreme Court that its decisions on them may touch you as husband or wife, as businessman, as corporate executive, as shareholder, as policy holder, as labour union member, as civil servant, as teacher or student, as policeman, as member of an administrative agency, as a member of government, whether municipal, provincial or federal, as a person accused of an offence, and so on. All economic activity and all exercises of governmental authority, whether by legislation or by executive order or regulation, are potentially the stuff or, should I say, the staff of our life.
A predecessor of mine in the office of Chief Justice, the late John R. Cartwright, was fond of saying that the Supreme Court like the navy is a silent service. He did not mean by this that members of the Supreme Court were never to speak out about the Court or discuss its operations with members of the public. What he enjoined was silence about the merits or demerits of decisions of the Court. Once rendered, they spoke for themselves. Certainly, they were open to public discussion, to public criticism or even acclaim, but it was for others, lawyers, law teachers, competent journalists, members of the public, to comment on them. It was not for the judges to enter the lists; their duty was discharged when judgement was given in any particular case.
This is still a sound position but I myself do not think that it is today an invariable one. I and my colleagues of the Supreme Court make frequent visits to our law schools and engage freely in discussion with law students and law professors about our judgements, and we do this occasionally in talks with and to members of the legal profession. In those instances, we speak as one group of professionals to another such group or groups, and we regard the exercise as an educative process both for our special audience and for ourselves. I have no doubt, however, that we can prudently engage the general public from time to time in a discussion of our work, and my appearance here today is in recognition of this obligation.
Last year, the Supreme Court of Canada became one of the items in the constitutional discussions carried on by the Continuing Committee of Federal and Provincial Ministers and, later, in the discussions by the First Ministers. Why the Court was so included still eludes me. The Court has been working well, although there do not seem to be too many who care to notice. It has kept reasonably abreast of its docket, notwithstanding the rising complexity of the cases on its hearing list. It has carried on and, I believe, strengthened its long-standing and preciously regarded tradition of cohesion and collegiality, so essential to the efficient and expeditious dispatch of its business.
An ostensible reason for including the Supreme Court in the constitutional discussions was to give the Court a constitutional status, which it does not now enjoy. Its existence is not guaranteed in the Constitution, as is the case with the Supreme Court of the United States and the High Court of Australia under the respective American and Australian constitutions. The Supreme Court of Canada, at the present time, is merely a statutory court, created by the Parliament of Canada in 1875 but, in the perspective of more than a hundred years, I think it is quite firmly founded. However, the discussion on the Court veered away from constitutionalizing it. There seemed to be some sentiment by the ministers engaged in the constitutional discussions that the Court should be regionalized, that appointments to it should be made on that basis and that, moreover, it should be enlarged to accommodate regionalism and dualism in respect of the Quebec civil law system. It saddened me that there
was so little understanding manifested either about the nature of the Court’s work or about the significance of the fidelity of its members to their oaths of office; so little appreciation of the importance of cohesion and collegiality in the dispatch of the Court’s work. That work has no regional and, certainly, no political tie-in. The judges, once appointed have complete independence, verified by security of tenure to age seventy-five.
There was some grumbling during the constitutional discussions about some of the Court’s decisions affecting the exercise of provincial powers, but there could have been equal grumbling from the federal side. Constitutional issues are always sensitive ones, and if there is overreaching by either Parliament or a provincial legislature it is the Court’s duty to pull them back. Governments are better advised to draft their legislation with less bravado than to run the risk of overstepping the limits of their powers.
What was dismaying to me as I watched and read about the constitutional proceedings that took place last year was the total misconception that so many ministers and first ministers had about the Supreme Court. They treated it in political terms and, fallaciously, regarded it as a federal institution on a par with the Senate. Let me say, as forcibly as I can, that the Supreme Court of Canada is not a federal institution; it is a national institution and its members are under no federal allegiance merely because they are federally appointed. Just as there is no federal allegiance, there is no regional allegiance and no political allegiance.
If the ministers and first ministers had a better understanding of the character of our work, they would have realized that there is very little that is regional in that work. Essentially, we deal with national issues, with matters of general public importance that have no special regional connotation. The proposal, that emanated from and was supported in some quarters, to increase the number of judges from Quebec, in recognition of the assumed importance of cases under the Quebec Civil Code, was badly misconceived. The Quebec Civil Code is hardly a factor in our operations, and to the extent that cases rest on it we are already well served with three of our nine members being from Quebec. In 1979, there were only two cases of the some 110 or more that we heard that directly involved the Quebec Civil Code; in 1980, there were, again, only four out of some 115 cases that we heard.
The fact of the matter is that the cases that come to us from Quebec are no different from the cases that come to us from other provinces. In the important areas of constitutional law, administrative law, criminal law, labour relations law and large parts of commercial law, the principles of decision are the same throughout Canada. We deal with legislation more than with private law transactions that would bring the Quebec Civil Code into play. And may I add that even the Quebec Court of Appeal has a diminishing number of cases before it which turn on the provisions of the Quebec Civil Code.
The Supreme Court is already sufficiently regionalized in the appointments to it to reflect the character of our country and the volume of work that comes to it from various parts of the country. An increase in the size of the Court would impair our efficiency, make us less expeditious and raise the risk of having two Supreme Courts of Canada. We now sit in full Court of nine in most of our cases. A final Court needs intactness which would be lost if we had one or two judges on the fringes, to be moved in or out of cases, or if we were to sit in a larger number. There would be no gain to the law, to the precision of doctrine that is expected from a final court. The provinces may very well have a claim for greater involvement in appointments, but I say to them and to the federal government that there is no ground for altering either our present composition or our present jurisdiction.
I have considered that I can best inform you about the important features of the Supreme Court’s operations if I do it by question and answer rather than by mere narrative. I propose therefore to put a series of questions before you and give you my answers to them in the hope that I can thus best feed your comprehension of our work.
The first question I would put may seem to most or all of you as superfluous. It is this: May members of the public attend the sittings of the Supreme Court? Answer: Emphatically yes. It is a cardinal principle of our judicial system that in general all court hearings are open to the public and I cannot think of any circumstances in which the public would be barred from hearings in the Supreme Court, subject of course, to the limits of available accommodation. I put the question only because I have often been asked, even by persons in public life, whether hearings of the Court are open to the public. Q. How does a case get to the Supreme Court of Canada?
A. In general, it comes by way of appeal from a provincial court of appeal or from the Federal Court of Appeal. Cases do not originate in the Supreme Court of Canada save where the Government of Canada refers a question, usually a constitutional question, to the Court, as happened a few years ago with the AntiInflation Act and, more recently, with the Senate reference. In only a few instances is there an appeal as of right. It is necessary in most cases, both civil and criminal, to obtain leave to appeal, either from the provincial courts of appeal or from the Federal Court of Appeal or from the Supreme Court itself. As a rule, it is left to the Supreme Court to decide whether it wishes to accept a proposed appeal for hearing on the merits.
Q. How are applications for leave to appeal handled by the Supreme Court?
A. We hear applications for leave twice a month. They come before a panel of three judges. With nine judges on the Court, we are able to run three panels concurrently to take care of an ever growing number of motions for leave to appeal.
Q. What are the criteria for deciding if leave to appeal should be given?
A. It must be shown to us that there is, arguably, a matter of national or public importance involved or that there are conflicting decisions on some point of law among two or more provincial courts of appeal. One of the duties of the Supreme Court is to settle the law on public or national issues for the whole of Canada. I should add that money, the amount of money involved, is not a governing criterion for accepting a case for hearing.
Q. Because leave to appeal is required, does this mean that a case is argued twice, once on the application for leave and again when it comes on for hearing before an enlarged Bench?
A. No. Counsel sometimes have to be restrained on applications for leave from arguing the whole appeal, but it is only necessary to show that there is an arguable point involved on an issue of public or national importance that ought to be considered by the Court as a whole.
Q. Is there a time limit on oral argument?
A. There is a time limit of fifteen minutes for each side with five minutes for reply in the case of applications for leave and this limit is tolerantly administered. On appeals proper, there is no fixed time limit but only the limit of judicial patience. Members of the Court come to a case prepared by previous reading of the material filed by the parties. They thus get to the heart of the case very quickly, with a consequent saving of time. Most cases are heard in half a day or a day at most. Exceptionally difficult ones may take longer but it is very unusual for a case to go on for more than two or three days.
Q. If leave to appeal is granted (and I may say here that applications for leave are disposed of expeditiously, usually on the spot, and reasons are not given unless a question of jurisdiction is involved), what happens next?
A. The successful applicant then files a notice of appeal and inscribes the appeal for hearing in accordance with our rules. The case is placed on a chronological list which is distributed at the beginning of a term of the Court and is heard in due course. We have three terms, one beginning in late January, one in late April and one in early October, but we are moving the October term to an earlier opening date in late September.
Q. What happens to a case when leave to appeal is refused?
A. That is the end of the road and the judgement sought to be appealed stands. Refusal of leave does not necessarily connote agreement by the Supreme Court with the reasons, or even the decision, given in the court below. Refusal of leave merely signifies that the Supreme Court does not consider that the case raises a question of sufficient importance to warrant us in bringing it up. Sometimes leave is sought on a question which, even if decided in favour of the would-be appellant, would not be dispositive of the issues in the appeal. Leave would be refused in such a case because we do not ordinarily deal with abstract or hypothetical matters.
Q. How are assignments made for the sitting of judges of the Court on the various cases?
A. This is a function of the Chief Justice but it is open to any judge to make suggestions. Five is a quorum so there can only be one Court at any one time. However, the Court sits more often than not in its full complement of nine, certainly in constitutional cases, in administrative law cases, in labour cases, and in criminal cases. Assignment is thus not an anxious problem.
Q. How are decisions reached?
A. They are reached collectively, but each judge may go his own way. The Court hearing a case holds a short conference in its private Conference Room at the conclusion of the hearing, even while the desks in Court are being cleared and the books arranged for the next case. Tentative positions are disclosed at this post-hearing conference with the Chief Justice eliciting the views of the judges, beginning with the most junior and then the others in order of seniority of appointment. He may assign a judge to write draft reasons or a judge may volunteer to do so. If a difference of opinion is evident, there may be writing by two judges on what may become majority and minority opinions. Or, a doubting judge or judges may wait until a draft is produced by a judge ostensibly writing for the majority. Positions may change, even by the judge who takes on the initial assignment. When a draft opinion is ready, it is distributed to the other judges for consideration. Suggestions for changes may be made and they may or may not be accepted by the writer. Informal meetings may take place between groups of judges. We wander in and out of each other’s chambers. There is no such thing as not being on speaking terms with one another. All judges are brought together again at a conference called by the Chief Justice. We have no fixed and invariable conference periods. I call them every two or three weeks so we can better keep on top of our work. You must appreciate that it is the duty of the Court, especially since it is the top Court, the final Court, not only to decide but, as a general rule, to write so that the other courts, who are bound by our decisions, will be apprised of the law on the various issues that are litigated and the profession and the public will know the grounds of decision. In most cases, judgement is reserved so the Court can reflect on the case and give written reasons for the ultimate decision.
Q. Is there any limit to the number of opinions that might be written?
A. Theoretically, each judge who sits in a case may write separately. The purpose of our conferences is to reduce the likelihood of a multiplicity of opinions. If the Court is split, we try to see to it that there is one majority opinion and one minority opinion but this may not be possible in some cases in which different judges may hold strong views which they are entitled to express. We are individually independent of each other as well as of the outside world.
Q. Why are there dissenting opinions? Does this not make for uncertainty and does it not negate collective deliberation and conclusions?
A. The law is not an exact science. We deal with human behaviour in particular social settings or with commercial activity or with governmental activity, and one absolutely correct answer cannot be assured in complex cases which are carefully selected for hearing because they raise competing considerations that may lead to different results. Reasonable persons may differ on an issue that calls for resolution and dissenting judgements are valuable as signposts for a possible future reconsideration of principle.
Q. May the Court change its mind so as to reverse or modify what it had in an earlier case declared to be the law?
A. Yes; and it has done so in about half a dozen cases over the past five years. Human wisdom is not forever, and better argument by counsel and deeper reflection may persuade a Court at a particular time that an earlier decision should be reconsidered and reversed or modified. This is not often done but it is open to the Court to do it to keep the law current. Of course, Parliament or a provincial legislature may effect changes by legislation, and it is the duty of the Court to be obedient to the legislation subject, of course, to its obligation to interpret the legislation if it requires interpretation, and to apply it according to its reach.
Q. What are the daily sitting hours of the Court?
A. The Court sits from 10:30 a.m. to 1 p.m. and from 2:30 p.m. to 4 p.m. four days a week, Monday through Thursday and sometimes on Friday if a case spills over. It has an Easter recess, a summer recess and a Christmas recess but these are preparation periods for incoming work and also periods within which the members of the Court can write reserved judgments.
Q. If the Court sits four or five days a week and has preparatory work to do to familiarize itself with pending cases, how does it manage with its reserved judgements?
A. We have the assistance of law clerks, bright young women and men, generally just out of law school, who serve with us, as a rule, for a year and act as research assistants. They are now a necessary adjunct to our operations, writing memoranda for us and engaging in discussions with us on cases to be heard and cases already heard. They are in a sensitive and highly confidential relationship. The Chief Justice has two law clerks and the other judges have one each. We choose our own from numerous applications for these highly prized positions that come in as early as a year ahead of a prospective appointment. Having law clerks does not relieve us of daily work in addition to sitting on appeals. May I say, simply, that we are not governed by an eight-hour day.
Q. Is there any rule as to the time lapse between the date an appeal is heard and the date judgement is given?
A. No. The matter is in the hands of the Court and, to a degree, in the hands of the Chief Justice in administering the Court. He cannot, however, and would not seek to command, but only to urge if a judgement in a case assigned to a particular judge is slow in coming. We have ongoing work even while we are striving to get out judgements in cases already heard. In a small percentage of our cases, we give judgement on the spot at the conclusion of the hearing and the reasons are, naturally, quite brief. When we reserve judgement, we try to get our reasons and decisions out in not more than three to six months but it is at times much less and in very complex cases much more.
I have given you, I hope, some perspective on the operation of the Supreme Court that should conduce to a reasonable understanding of its centrality in our system of justice. I thank you for having me as your luncheon speaker and surrounding me with many old friends.
The thanks of the club were expressed to the Chief Justice by Major General Bruce Legge, President of the Empire Club Foundation and a Past President of The Empire Club of Canada.