REMARKS BY

THE RIGHT HONOURABLE BRIAN DICKSON

TO THE

CANADIAN CLUB

Ottawa, .

March 12, 1987 Mr. Matthews, distinguished head table guests, distinguished members of the

Canadian Club of , ladies and gentlemen. It is a great pleasure to share this lunch with you today and to be invited to speak on the topic: The in the 1980s. As the title indicates, I have been asked to talk about the Court of today - its role, its workload, its methods of operation, in short, its contemporary life. I have also been asked to say a few words about the effect of the Canadian Charter of Rights and Freedoms on the Court. I am happy to address both of these topics. Before doing so, however, I hope you will permit me to say a few words about the history and background of the Supreme Court because I think that the Court's current position and role can be better understood against the backdrop of its historical roots and development.

La Loi Constitutionnelle de 1867 a créé le pays que nous appelons le Canada.

Ce document historique majeur a aussi créé les branches législative et exécutive du gouvernement.

Il est toutefois intéressant de noter que la Cour suprême du Canada n'a pas été créée cette année-lå.

L'article 129 de la Loi Constitutionnelle de 1867 a maintenu en existence dans le nouveaux pays les tribunaux institués avant 1867 dans les fédérées. L'article 101 de cette loi donnait au parlement fédéral le pouvoir de créer une cour génerale d'appel pour le pays, mais elle n'a pas été

établie en 1867.

The year 1875 marks the birth of the Supreme Court of Canada. The first

Court consisted of six judges, a strange number when you think that a major role of the highest Court in the land is to settle disputes, a role which is played more easily if the Court consists of an uneven number of judges like seven or nine! The number six is explicable however for historical and - 3 - geographic reasons; it was intended that each of the three regions of the country - Upper Canada,

Lower Canada, the Maritime provinces - would provide two judges for the Court.

At first, the Supreme Court had no separate building. Then it moved up in the world - it was given old stables below Parliament! The Court's early workload did little to justify greater prestige and visibility. When the Court first assembled in 1876 there were no cases to hear so the Court immediately adjourned. The second session was only a little more active than the first and it is clear that some of the first judges on the Court were not particularly enamoured with either their legal duties or the City of Ottawa. Sir John A. Macdonald wrote in his diary after this second session:

"The Supreme Court session passed off alright. They rose on Saturday at 1:30 p.m. and Taschereau was off on the train at 2:00 p.m. He tried on Friday evening to get the Court to sit until 10:00 p.m. to enable him to leave at 10:50 p.m. Chief Justice Richards refused and Taschereau told him angrily he would be revenged for that. Fournier left on Monday. Strong is very angry and insists on both men doing some work. Neither of them opened their mouths in the Court from first to last but both looked very wise which probably had the same effect on the audience as if they were wise."

In its early years, the Supreme Court functioned efficiently and, with respect, rendered relatively good judgments. Nevertheless, it is clear that it was not a particularly visible or important national institution. While, in the political arena, issues such as the opening of the West - 4 - and the plight of Louis Riel occupied center stage, in the Supreme Court of Canada the judges were occupied with determining whether temperance laws were a federal or provincial responsibility and which of two competing parishioners was entitled to a church pew! Furthermore, the fact that decisions of the Supreme Court were not final underlined the relative insignificance of the Court.

Appeals from its decisions could be, and were often, taken to the Privy Council in London and in a great many cases the Privy Council, led by such powerful jurists as Lord Watson and Lord

Haldane, did not hesitate to reverse the decisions of the Supreme Court of Canada.

The new century brought profound changes for the country and for the

Supreme Court of Canada. Early in the new century, two great jurists, Chief Justice Anglin and

Chief Justice Duff, significantly raised the quality of the Court's decisions. In the political arena,

Prime Ministers Laurier, Borden and King pushed towards great independence for the Canadian nation. This development in the political arena was matched by steps towards independence in the

Supreme Court of Canada as well. In 1933, appeals to the Privy Council in criminal cases were abolished. Then, in 1949, all appeals to the Privy Council were abolished and the Supreme Court of Canada became what its history and growth had inevitably mandated - the highest and final Court of law for all Canadians. The complete break with the English court system in 1949 was not welcomed by everybody - I suspect that some senior Canadian counsel enjoyed their annual voyage to London on a Cunard liner, the theatre scene in London's West End, the round of social engagements in legal London, and even the opportunity to argue cases in front of the Privy Council! - 5 -

But aside from this loss, there can be no doubt that in 1949 the Supreme Court of Canada was ready

to take on its great role as Canada's final Court.

Trente-huit ans plus tard, en 1987, la structure et le role qu'avait la Cour en

1949 sont essentiellement identiques. En 1949, le nombre des juges a été porté à neuf et c'est

toujours la taille de la Cour. De par la loi, trois juges doivent venir de la de Québec. Il en

est ainsi parce que la Cour entend un bon nombre d'affaires mettant en jeu le Code civil du Québec

et qu'il est donc important que plusieurs juges soient des civilistes. By law three judges come from

Quebec. By custom, fairly regular but not invariable, three of our nine judges come from Ontario,

two from the Western provinces and one from the Atlantic provinces. The judges come from a wide

variety of backgrounds. Most of them have had extensive experience in private practice. Several

have had careers in Canadian law schools; indeed three of the current members of the Court are

former deans of law schools.

The Supreme Court of Canada has always been and continues to be a "general

Court of Appeal" for the country. That is true in a geographic sense; each year the Court hears

appeals from every Canadian province. It is also true in a substantive sense; the Court hears appeals every year in virtually every area of law. In this latter respect, the Court is unlike its American

counterpart. The United States Supreme Court is virtually a specialist constitutional court; almost

its entire docket of cases consists of appeals in constitutional matters. In Canada, it is true that the advent of the Canadian Charter of Rights and Freedoms has made the Supreme Court of Canada - 6 - more of a constitutional Court than it has been at any previous time in its history. Nevertheless, the reality is that the current docket of our Court consists of only about 20% Charter cases. Those who contend that the Charter has converted the Court from a general court of appeal to a specialist constitutional court are absolutely wrong on this point. In addition to the Court's Charter caseload, its docket consists of about 30% criminal appeals. The other 50% of the cases which we hear each year consist of a wide range of subject matters, virtually everything imaginable - for example, property law, family law, contracts, torts, labour law, Quebec civil law and statutory interpretation.

Turning to the Court's workload, the Court hears and decides about 90 cases each year. Who decides which 90 cases we hear? And how are the cases chosen? The "who" question is easy to answer - the Court itself determines which cases to hear. The answer to the

"how" question is a bit more complicated. We decide what appeals to hear by means of something called "the leave process". Each year approximately 450 people who have lost cases in a provincial court of appeal seek leave to bring their case to the Supreme Court of Canada. At present, we schedule about 16 days each year for hearing these applications. Each applicant is given 15 minutes to try to persuade the Court why his or her case should be one of the 90 out of 450 cases which the

Court should select for full hearing. Our sole criterion for selection is: does this case raise an issue of national importance? If it does then normally we grant leave and will hear full argument; if it does not, we refuse leave and the decision of the provincial court of appeal becomes final. - 7 -

One of the most successful recent developments at the Court has taken place in this area of leave applications. You can imagine the time and expense involved in a lawyer coming from, say, Vancouver to appear before the Supreme Court of Canada for only 15 minutes to try to persuade us to accept his or her case for full argument. This time and expense is magnified when one recognizes that the odds of getting leave are only 90 out of 450, in other words, roughly

20%. In recognition of this problem, two years ago we started a system called videoconferencing.

Lawyers can now go into television studios in 9 cities across Canada, from Vancouver to Halifax, and make their arguments from the studio. The lawyers look at the screen on the wall of the studio and see the judges of the Court. We look at two television screens immediately in front of us on the bench in Ottawa and see the lawyers from Vancouver or Halifax. We can engage in a good discussion with the lawyers and then make our decisions. It saves the lawyers and their clients a day or two of travel and, I suspect, several thousand dollars. To my knowledge, we are the only country in the world with this technological capacity in its highest Court and we are very proud of it.

Let me now say a few words about the preparation for and the hearing of the

90 full appeals. It is easy to describe the preparation process. Quite simply, it involves a staggering volume of reading. Before each case, we read the briefs of law - called factums - prepared by each party. In addition, we will read the books of evidence in appropriate cases. Often, we will read legal research memoranda prepared by our law clerks and most of us like to read some of the academic literature in a field before we hear a case. - 8 -

Having done all this, we go on the bench and hear the appeal. We listen carefully to the arguments of the lawyers (many of whom are excellent, some of whom are not), we ask questions of counsel, often we engage in a spirited debate with them. In short, through a process of listening and dialogue we try to discern the essence of each party's case.

Then we adjourn to deliberate and decide. After a hearing, we go immediately to our Conference Room which is situated just behind the main Courtroom. We discuss the merits of the case and vote, tentatively, on its outcome. All of this discussion proceeds in reverse order of seniority. In other words, the most junior judge gives his or her opinion first, then the next most junior and so on up the line. When I was a new judge on the Court I did not like this system, but now that I am Chief Justice I am much enamoured of it because by the time I speak I know all the answers!

Following our discussion, one of the judges undertakes to prepare a draft judgment. In the United States this component of the process is quite formal - the most senior judge on the majority side assigns someone to write. On our Court, the process is quite informal. Often one of my colleagues will volunteer to prepare the draft judgment because the area of law is one of particular interest to him or her. In many other cases, I will suggest that someone try a first draft; almost invariably the person I propose is willing to take on the assignment. - 9 -

That brings me to almost the final step of the process, the writing of the judgment. When I undertake to prepare the first draft, the process is quite intensive. I do a great deal of research, I engage in extensive discussions with my law clerks, and then I prepare a draft. In fact, the words "a draft" are inaccurate. Before I circulate a judgment to my colleagues it would not be uncommon for me to prepare somewhere between 5 and 20 versions of a judgment. After circulation to my colleagues there is often a fair amount of discussion which invariably gives rise to useful suggestions for improving the judgment.

In some cases, it will be impossible for all nine justices to agree on one judgment. Some judges will agree with the result that I reach but for different reasons; they will write what is called "a concurring judgment". Others will disagree with both my proposed result and reasons; they will write "a dissenting judgment". One of life's humbling experiences is to circulate reasons which, at Conference, seemed to attract the support of a majority of one's colleagues and then to be informed by one's secretary that "Justice X has circulated a dissent" followed by, the next day, "Justice Y agrees with Justice X's dissent" followed by, the next day, the unwelcome information that "Justices A and B agree with Justice X's dissent". Suddenly you realize that Justice

X's dissent is no longer a dissent but that your judgment, which you have worked at with such care and dedication for months, is! So be it. That is the judicial process. - 10 -

Once all of the judgments are prepared and in circulation, each judge must cast

his or her final vote. Then the judgments are translated and are handed down as soon as possible,

usually the next judgment day.

That then is a brief description of our Court, its workload and its methods of

operation. I want to conclude with a few words about the effect of the Canadian Charter of Rights

and Freedoms on these things.

There is no doubt that the Charter is an absolutely fundamental constitutional

document. Speaking personally, I take great pride in the Charter. For one thing, it puts Canada in

the mainstream of the post World War II movement towards conscious recognition of, and protection

for, fundamental human rights. For another thing, the Charter is the logical culmination of Canadian

developments in the field of human rights - it builds on provincial and federal human rights codes

and the Canadian Bill of Rights. At bottom, the Charter protects those basic values which most

Canadians share and cherish. I am pleased that, in my professional capacity as a judge, I can play a role in protecting and promoting those values.

As I mentioned earlier, approximately 20% of the Court's workload consists of Charter cases. That is the quantitative picture. The qualitative picture is perhaps different - there

can be no doubt that many of the Charter cases which we have heard raise highly visible and

fundamental issues of a religious, economic, social, political and moral nature. The nine judges of - 11 - the Supreme Court of Canada have had to examine such difficult and divisive issues as the testing of American missiles over Canadian soil, the right of merchants to open their stores on Sunday, the rights of refugees seeking admission to this country, the capacity of governments to order employees back to work or to impose wage settlements on them. We have even had to consider the constitutionality of the provisions in the Criminal Code of Canada dealing with abortion.

These are not easy issues for individual Canadians to address. They are not easy issues for politicians to consider. Therefore it should not surprise you to hear me say that they are extremely difficult issues for the judges of the Supreme Court of Canada. Nevertheless, the

Canadian Charter of Rights and Freedoms mandates that the courts measure the validity of government conduct against the values enshrined in the Charter. It is not an easy role to play; but play it we must.

The Supreme Court of Canada has now rendered about 20 decisions in Charter cases. In those cases we have not tried to enunciate for all time the precise content of the Charter.

That would be impossible. The genius of the Charter will not reside in any static meaning but rather in the adaptability of its great principles to cope with the problems of a developing Canada. The

Charter is not an ephemerel document designed to meet sporadic needs. It must take account of what has been, what is and what may be. Judges, but also politicians and ordinary Canadians, must put flesh on the bones of the Charter and give lasting substance to the basic freedoms it extends to every citizen. - 12 -

Although the Canadian courts have long been involved in the protection of fundamental freedoms in the areas of law entrusted to them, I recognize that the process of judicial review of legislative and governmental action the Charter has thrust upon us an unfamiliar mantle.

In accepting this new role as arbiter between the individual and the state, I believe all judges can draw strength from the following words of Justice Benjamin Cardozo written some 60 years ago:

"If you asked me how (the judge) is to know when one interest outweighs another, I can only answer that he must get his knowledge just as a legislator gets it, from experience and study and reflection; in brief from life itself." (B. Cardozo, The Nature of the Judicial Process 113 (1921))

Thank you for this opportunity to address you. Je vous remercie de m'avoir fourni l'occasion de vous adresser la parole, ce que j'ai beaucoup apprécié.