Barbara Kay: Stephen Harper’s last chance to make life fairer for suffering fathers


Barbara Kay: Stephen Harper’s last chance to make life fairer for suffering fathers

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Barbara Kay | May 26, 2014 | Last Updated: May 23 4:52 PM ET
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In litigation, although lip service is paid by law associations to the “best interests” of the child, make no mistake: lawyers work to advance their clients’ wishes, not the children’s.http://fullcomment.nationalpost.com/2014/05/26/barbara-kay-stephen-harpers-last-chance-to-make-life-fairer-for-suffering-fathers/

Peter J. Thompson/National PostIn litigation, although lip service is paid by law associations to the “best interests” of the child, make no mistake: lawyers work to advance their clients’ wishes, not the children’s.

Tomorrow, May 27, will feature the conclusion of parliamentary debate on Conservative MP Maurice Vellacott’s private member’s Bill C-560, which proposes an amendment to Canada’s Divorce Act that would protect children’s right, in the absence of proven neglect or abuse, to love and be loved equally by both parents after separation.

Our now-superannuated paradigm — one primary, one secondary parent — is based on the flawed assumption that judges can somehow arrive at the “right” distribution of parenting time. Current social science overwhelmingly deems this an impossible task. Litigation necessarily triangulates the children into their parents’ divorce, encouraging drawn-out, financially crippling and emotionally devastating scenarios from which nobody but lawyers profit. It is an unethical and counterproductive model most Canadians firmly deplore.

All informed critics give our system a failing grade. No other alternative proposed over three decades has proven effective. Mediation has not reduced bitter custody litigation. Neither have collaborative lawyers, costs sanctions, parenting education or any other initiatives. Why? Because litigation remains the ace up the sleeve of the less collaborative parent. Sociological research tells us that what children want after separation is two parents, not one parent and a visitor. But once in litigation, although lip service is paid by law associations to the “best interests” of the child, make no mistake: Lawyers work to advance their clients’ wishes, not the children’s.

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If the bill were to make it to the Justice Committee of the House of Commons for further study and review, parents, social scientists and others who understand these issues far better than our elected representatives would have an opportunity to speak to the issue. But from a reliable government source, I am informed that cabinet ministers have been instructed to vote against Bill C-560, which will vitiate the substantial number of caucus votes in favour. This decision would be an unconscionable insult to Mr. Vellacott and a repudiation of the party’s erstwhile platform position. Add the mass NDP nays and the paucity of free-vote yays from Liberals, and a good and necessary reform will founder.

If I thought the bill were failing on its merits after a thorough public airing and debate, I could accept it with grace. But there has been no public debate, and I know from discussions with intelligent people — even those who claim to grasp the principles involved — that misconceptions about equal shared parenting as a default abound. One such friend said he disagreed with the bill because “I think mothers should have a larger role in parenting after separation.” He apparently thought the bill would force all parents to hew to the equal-time model. On the contrary: collaborative parents could make any arrangement they liked. The default would avoid litigation in high-conflict cases.

A document called “Myths and Facts” to correct such misconceptions was circulated to everyone in Parliament. It fully responds to every concern raised by the opposition. But it seems very few MPs have read it.

If mothers were the main victims of our failing system, would this bill not have passed by acclamation many years ago?

The fact that 30 cabinet ministers, many (most?) of whom are not really familiar with the parameters of the proposals, can shoot down this excellent, deeply researched and judicious principle — one approved of by 80% of Canadians — without an opportunity to inform themselves thoroughly on what it actually means, is cruelly arbitrary and unjustified by any reasonable criterion.

It is also personally embittering. I am familiar with hundreds of personal stories of literally ruined lives, tales of children anguished by forced separation from beloved parents because the “winner” took “all.” The “losers” are virtually all dads. Can we speak plainly here? If mothers were the main victims of our failing system, would this bill not have passed by acclamation many years ago? Why are politicians so afraid of ideologues? They don’t represent Canadian women, a majority of whom want to see gender fairness entrenched in family law.

Tomorrow will be the last chance for the Conservative government to do the right thing. I call upon the Prime Minister to allow his ministers a free vote in accordance with their individual conscience, and to send Bill C-560 to committee for the meaningful consideration it deserves.

National Post

bkay@videotron.ca

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Ending the feudal family law system is the aim of C-560 in Canada


Scott Brison,

We urge you to vote for family equality on May 27th. Vote for Bill C-560.

Live Free,
Connie Brauer
1061 Mines Rd. RR2
Falmouth, NS B0P 1L0
Phone, 902 791 0958
Email, cbrauer@eastlink.ca

From: ‘Glenn at Cheriton.ca’ glenn@cheriton.ca [CEPC_Members]

Sent: Tuesday, May 20, 2014 6:43 PM

To: CEPC_Members@yahoogroups.com

Cc: EPOC_NEWS@yahoogroups.com

Subject: [CEPC_Members] Contact your MP before May 27th to end the feudal family law system and vote for Bill C-560

Ending the feudal family law system is the aim of C-560

The foundation of British law is the “Magna Carta” which for the first time, effectively restrained the judgment or discretion of the king.

Parents across Canada have organized to reform family law with latest efforts resulting in a bill in Parliament, C560, expected to get a second reading in May, 2014.

In April, 2013, Supreme Court Judge Thomas Cromwell released a report, commissioned by the Chief Justice, which called for a complete overhaul of family courts, bemoaned the failure of 30 years of “reforms” controlled by the legal profession, and slammed family law for inaccessibility, dismal outcomes and creating disrespect for the legal system. The report called for “consensual decisions” by parents.

Bill C560 aims to implement selected best practices from other jurisdictions to encourage parents to make such “consensual decisions”, to reduce conflict and costly legal battles, and also to ensure that both parents have the option of equal time with their children unless proven unfit.

These reforms are long overdue: A joint Senate-Commons report accepted by Parliament recommended shared parenting and equality of parents in 48 reforms in 1998. Every single recommendation was blocked by legal profession vested interests, who make billions of dollars from the current adversarial system.

When legal profession advocate Nicholas Bala says the system needs more “resources” – he means more money. Thus the choice is clear: either taxpayers pour further dollars into the current dysfunctional system, or we implement a selection of practices which have reduced costs to parents and children in other jurisdictions. Those practices make up Bill C560.       

Advocates of the current sole custody system don’t seem to be able to avoid making two claims: that more money to the existing “stakeholders” will fix the system and promoting unfounded prejudicial stereotypes against fathers. The Supreme Court report dismissed the first claim, so let’s examine one of the unfounded stereotypes:

Claims that large number of abusive fathers are gaining custody are belied by research which consistently shows that children are safer with fathers than with sole maternal custody. Social science also shows that joint custody or equal parenting reduces both conflict and abuse outcomes.

It is time to move beyond simplistic gender stereotypes and do what social science overwhelmingly shows is in children’s best interest: keep both parents unless clear proof of unfitness.

To argue over which is more disadvantaged, the “winners” or the “losers” of child custody cases is pointless: let us agree that a child who goes into family courts with two fit parents and ends up with only one is the real loser. Let us agree that legal and other adversarial professionals who exploit that process to line their pockets are the winners, pious claims to the contrary notwithstanding.

Bill C560 is a good initiative to reduce legal incentives to remove a fit parent without substantial evidence. In his book, “Equal Parenting Presumption”, custody expert Edward Kruk shows that at least 40% time sharing (preferably 50%) is the key to making real reforms work and improving outcomes for children and parents. Equal time as the starting point means both parents need not fear arbitrary loss of their kids and in practice most often work out their own parenting plan (which need not be 50/50).

A key point of Bill C560 is to define “best interests of the child” as keeping both parents unless one is proven unfit.

The last reforms parents successfully pushed for (1986) included the “friendly parent rule” which was supposed to presume joint custody by giving preference to the parent who would most encourage parenting by the other parent. Judges generally “read out” this provision of the Divorce Act, inserting the presumption that existence of conflict meant they could exercise judicial discretion and order sole custody. Worse, judges often presume that removing the parent seeking joint custody or equal parenting will stop conflict. It is a feudal system when the decision maker has complete discretion/decision rights without any responsibility for the outcomes. Social science research shows that sole custody generates conflict and disadvantages children, yet judges claim this is in “best interests of the child.” Nothing could be further from the truth.

Parents say that outcomes from the adversarial system have not perceptibly changed over the last several decades. Vested interests oppose changes since they make money from adversarial divorce and sole custody.

Bill C-560 brings long overdue non-adversarial reforms to a broken system. It should be supported by all members of Parliament as such reforms are supported by over 80% of the Canadian public.

Parents and supporters of these reforms should can call their federal MP and ask he or she to vote in favour of C-560. You can call in to radio or contact other media and make the point that your MP ran on the shared parenting policy in the last election and that your vote in the next election depends on how they vote May 27th for second reading.

Glenn Cheriton, President, Canadian Equal Parenting Council

p.s.  Here are some links to help you support equal parenting reforms:

http://canadianepc.org/donate

http://canadianepc.org/membership/advocate-signup/

__._,_.___


Posted by: “Glenn at Cheriton.ca” <Glenn@Cheriton.ca>


Why are the Fathers not honoured on Remembrance Day?


Thank you for your submission..

Thank you for your submission.

Below is what you submitted to info@legion.ca on Thursday, November 10, 2011 at 13:02:29


Topic: Where is the respect for the Fathers?

Name: Connie Brauer

Address: 1061 Mines Rd. RR2

City: Falmouth

Province: NS

Postal: B0P 1L0

Phone: 902.798.5267

Question or Comment:

Dear Legion,

Tomorrow is Remembrance Day. I may not go. I was dismayed at the response to a fellow activist for father’s rights, that was given to him regarding the wreath laid from the Mother’s of Canada. Where is the wreath From the Fathers of Canada?

Did they not lose their sons too? When will discrimination against men stop? You are discriminating against the very men who fought in the wars!

He wrote: For the last 14 years, I have been laying a wreath from “Fathers of Canada” on Remembrance Day at the National War Memorial, and asking the government and Legion to change the ceremony to recognize that soldiers have two parents. In the national ceremony, the Governor General lays a wreath from the people of Canada, then the “Mothers of Canada” wreath, then a wreath recognizing veterans. Our fathers’ wreath is kept back in the 8th wave, at the very end. Readers are right that the Memorial Cross and the “Silver Cross Mother” recognition are separate questions. In response to my letters, the Legion wrote that they would only consider including a father in the official party if there were no more mothers. In another letter, the Legion said that including mothers and excluding fathers was “sacrosanct”. It is unfortunate that this important day has become so politicized. The proper order should be people of Canada, veterans wreath and then “parents of Canada” or a wreath from a mother and a father. It does no honour to veterans, Canada, mothers or the Legion to exclude fathers.

Connie…

I looked up sacrosanct. Here’s what it said: Sacrosanctity was a right of tribunes in Ancient Rome not to be harmed physically. Plebeians took an oath to regard anyone who laid hands on a tribune as an outlaw liable to be killed without penalty. The term comes from the phrase sacer esto (“let him be accursed”) and reflects that violation of a tribune’s sacrosanctity was not only a secular offense, but a religious offense as well.[1]

Pretty barbaric, wouldn’t you say? Please look into this matter immediately and honour our fathers too, immediately!

Connie Brauer

Victim of judicial abuse against fathers and families by the courts.




 

Forceful governor general tells lawyers, ‘Heal thyself’


Forceful governor general tells lawyers, ‘Heal thyself’.

In stinging rebuke, Johnston says it’s time legal profession regains sight of justice, public good

Gov. Gen. David Johnston has singled out Ontario as having the worst court processing times in Canada.

Gov. Gen. David Johnston has singled out Ontario as having the worst court processing times in Canada.

Photograph by: Ashley Fraser, The Ottawa Citizen

HALIFAX – Canada’s lawyers and judges are losing sight of their commitments to justice and the public good, and the profession must reform itself and rebuild the trust of ordinary citizens, says Gov. Gen. David Johnston.

In a rare, forceful speech at the opening of the Canadian Bar Association’s annual meeting in Halifax on Sunday, Johnston issued a stinging assessment of the legal profession and pleaded with it to change.

“We need a new model for professionalism in law,” he said. “To borrow a saying from a sister profession: physician, heal thyself.”

A former dean of law at the University of Western Ontario, Johnston said lawyers such as himself enjoy a “social contract” with society: In return for self-regulation and a monopoly over the practice of law, he said, “We are duty bound” to improve justice and serve the public good.

Instead, he said the profession is failing to uphold its end of the deal.

He said Canadians in all provinces wait too long to have their cases heard in court, and face unacceptable delays once there. He singled out Ontario for the worst court processing times in the country, and said despite efforts to reverse the trend, “the pace (of change) is woefully slow.”

Johnston said judges and lawyers must act with “urgency” to break through what criminologists have called a “court culture” of complacency, if they hope to streamline the process.

Johnston also chastised lawyers — not specifically in Canada but across the democratic world — for contributing to the collapse of trust between citizens and public institutions, and the resulting social instability in many western nations today.

He cited the 2008 financial collapse on Wall Street as one example.

“How many lawyers ‘papered’ the deals that involved fraudulent statements of assets, liabilities, income and valuations?” he said.

“How many lawyers ‘sounded the alarm’ about conflict of interest in the web of financial transactions and creative financial instruments?

“How many lawyers were silent in the face of a pattern of deregulation which has left the economy naked to excessive leverage, and which any thoughtful observer knew was bound to have its inevitable pendulum swing?”

Johnston also rebuked Canada’s law schools for losing touch with practicing lawyers in the real world, and for relying too heavily on narrow criteria, such as the standardized Law School Admissions Test, for selecting new students.

He lamented the lack of work-life balance in law firms that “penalize those with a family,” particularly young mothers — a comment that drew applause from the audience.

And, like Supreme Court Chief Justice Beverley McLachlin on Saturday, Johnston said the profession must make legal services more affordable, and simple, for millions of middle-class Canadians.

“For many today the law is not accessible, save for large corporations and desperate people at the low end of the income scale charged with serious criminal offences. We must engage our most innovative thinking to redefine professionalism and regain our focus on serving the public.

“If we wish to avoid having change forced upon us, we must embrace new ideas.”

It is rare for a Canadian Governor General to make such frank public speeches, but Rod Snow, president of the Canadian Bar Association, said he welcomed Johnston’s honest words.

“He talked about things that he knows,” Snow said. “He probably gauged that this audience wanted to hear something of substance and I think he probably got it right.”

Ontario Bar Association president Lee Akasaki said he was surprised by Johnston’s strong stand, but also agreed with it.

“We have to get the bar back on track, be more relevant to the people we serve and hopefully in doing that we’ll improve the image of lawyers,” he said.

Arianna Huffington, the American social media pioneer and founder of The Huffington Post online website, spoke to the conference after Johnston.

She praised his remarks as a “speech of tremendous depth” and said what Johnston highlighted was essentially a breakdown in trust and a crisis of leadership among political and professional elites in many democracies.

“I completely agree with the Governor General,” she said. “Our leaders refuse to innovate because they are afraid of rocking the boat,” she said. “But if they don’t innovate, change will be forced upon them.”

Postmedia News

What Everyone Should Know about the Supreme Court of Canada: The Empire Club Addresses


What Everyone Should Know about the Supreme Court of Canada: The Empire Club Addresses.

 

What Everyone Should Know about the Supreme Court of Canada
Publication:
The Empire Club of Canada Addresses, 12 Mar 1981, 287-299
Description
Creator:
Laskin, The Right Honourable Bora
Media Type:
Text
Text
Item Type:
Speeches
Description:
The purpose and significance of the Supreme Court of Canada and its decisions for all Canadians. His Honour’s concern over the lack of understanding and appreciation of the work of the Supreme Court, and its judges. Of particular concern are misconceptions held by ministers and first ministers. The lack of regionalism and politics within the Supreme Court and its decisions. A series of questions and answers intended to make clear the fundamental work of the Supreme Court of Canada.
Date of Original:
12 Mar 1981
Subject(s):
Language of Item:
English
Copyright Statement:
NULL
Contact:
Empire Club of Canada

Email: info@empireclub.org
WWW address:

Agency street/mail address:

Fairmont Royal York Hotel 100 Front Street West, Floor H Toronto, ON, M5J 1E3
Full Text
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
DR. 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.

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