It is probably only fair to start by admitting that I enjoy books about the law and A Judge’s Journey has proven to be no exception. It is also well written by Ontario Court of Appeal Judge Riobert J. Sharpe and University of Toronto law professor Kent Roach, which makes it available not only to the legal reader, but also to generally well-informed lay readers who may have an interest in how judge-made law develops and evolves. On the other hand, it is well short of an easy read for the faint of heart.
Since appeals to the Judicial Committee of the Privy Council were abolished following World War II (some suggest not from any particular political conviction of the British government, but because Canada was ready to forgive Britain’s war debt in exchange for this nod in the direction of Canada’s nation- al sovereignty), the Supreme Court of Canada has been Canada’s highest court of appeal. The nine judges sitting on the Court (three from Quebec, three from Ontario and three from the Rest of Canada) have the final word on the questions before them. Not only that, they have the complete discretion to decide what cases they are willing to entertain, making these latter decisions on the basis of written applications, without having to provide reasons justi- fying either leave or refusal.
Unlike the interest, bordering on obsessive, shown by Americans in their US counterpart, to the point that legal scholars and political scientists can pre- dict with unnerving accuracy the position of every judge on the court on every issue, Canadians are remarkably lacking in their understanding of their own institution. Even most lawyers in Canada would be hard-pressed to name the members of the Court. Fewer still would have the faintest idea what their predilections might be on any case brought before them. There is a healthy middle ground to which Canadians might aspire, which falls between complete indifference and the all-but-paparazzi approach in the United States. They should welcome an interest that sheds some light on the judi- cial process and the manner in which the judgments that affect many aspects of daily life are reached. It is also helpful to know something about the judges them- selves. We are fortunate to be spared the outrageous confirmation process that taints the United States, with its fiercely partisan and petty savaging of eminent lawyers and jurists by politicians barely fit to be in the same room as the nominees. I hope Canada will be spared a similar process. There can be no confidence, based on parliamentary performance, that our politicians are likely to demon- strate any more restraint than those of our neighbour to the south.
Appointments of Canadian Supreme Court judges have been subject to criticism, arising principally from the essential confidentiality of the process. It is clear that there is considerable consul- tation on both a political and professional level before appointments to the Court are made and there is not much justified complaint that nominees, certainly in the last three or four decades, come to the Court with no credentials, whether as judges from lower courts or as eminent professionals. We should avoid confusing the public interest in these matters with the interest of the public.
All that said, the more we know of those on the bench and the more we learn of how they struggle with the sub- tle issues faced by the final arbiters of vital questions, the more we are likely to have a sense of comfort that, whatever the outcome, a good faith effort to find the right solution has been made. This is all the more true in cases where Parliament has ”œpunted,” leaving the determination of matters which it is not willing to face in a political arena to the courts. It is important not to lose sight of how and why these cases have reached the courts, where the judges have no alternative but to try to find some mean- ing within the existing law or to extrapo- late from established principles into new legal territory. A recent example includes the reference on gay marriage. But, by far, the most difficult questions in the last couple of decades have arisen out of the Charter of Rights and Freedoms, a general- ized statement of principles that are now entrenched in our constitutional fabric, the interpretation of which has been deliberately left to the courts.
New legislation when Brian Dickson came to the Supreme Court of Canada, the Charter was unexplored legal territory (decisions dealing with the former Canadian Bill of Rights being of little, if any, assistance) and the judges were left to try to apply it to situ- ations where it might well never have been intended to apply. There were a few false starts, but, over time, the Court seems to have developed more confi- dence in its application, even if the results are not always understood and appreciated by the media or the public.
One interesting revelation by the authors is that the audience to which the Court was playing was often not the parties to the dispute before it, but, instead, to the academic commu- nity; it was to this offstage jury that its own offerings were directed, in the hope of polite applause. This feature presents an interesting series of questions in respect of what is fundamentally a state- created mechanism for the resolution of disputes. One gets the feeling that the dispute, by the time it gets to the Supreme Court of Canada, has long since been overtaken by the opportuni- ty, coupled with the appetite, to produce a legal essay. There is, of course, consid- erable merit in having the highest court in the land make clear the principles upon which it has decided a case, so that guidance is provided to lower courts and, more importantly, to the lawyers who must provide legal advice to clients so that unmeritorious litigation does not clog the judicial system nor waste the time and money of litigants. On the other hand, courts are there to decide cases. Changes in the law can be suggested by legal scholars, but until they become law, they are not law.
The Court is also shown to be an arena of small ”œp” politics. There are nine separate fiefdoms and considerable effort is required to bring about some form of consensus so the Court can, wherever possible, speak with a single voice. The authors make it clear that this was an area in which Dickson excelled, finding the middle ground that enabled the Court to articulate common posi- tions, even if some of those were often groupings around two poles, in split decisions. The ebb and flow of alliances presents a fascinating background to some of the landmark cases in modern legal history in Canada.
The inner Dickson is only partially revealed. He was clearly a successful busi- ness lawyer who, rather oddly at the age of 47, accepted an appointment in 1963 to the Manitoba Court of Queen’s Bench, a trial court, was promoted to the Manitoba Court of Appeal in 1967, and then appointed to the Supreme Court of Canada six years later. His family life was happy, they lived well, without ostenta- tion, had a circle of friends and, perhaps, that is all we need to know for purposes of an assessment of his role as a judge.
A member of the Supreme Court of Canada for seventeen years, of which six were as chief justice, following the death of Bora Laskin, Dickson had an important role in defining and develop- ing the law in many areas, none more so than in the complex field of administra- tive law and the quagmire created by the Charter. In the latter, he expressed his views as in favour of individual rights and urged an expansive interpretation of the Charter. There was no doubt that he wrote well and, even if his language was occasionally somewhat ponderous, it was at least clear, unlike the often impenetrable prose of his predecessor.
The authors do not discuss one case on which he sat, Gamble v. The Queen, where he would have allowed a young woman, charged and convicted under the wrong provision of the Criminal Code, to remain in prison for life with no possibility of parole for twenty-five years, on the somewhat vague per- ception that declaring her eligible for parole (without affecting her conviction for the wrong crime) might con- stitute a retrospective appli- cation of the Charter, which he did not favour. Fortunately, the majority of the Court decided otherwise.
The law, however, moves on, inex- orably, and it may be, as was the case for Dickson himself looking at former judg- ments, that the dissident views in some of his majority judgments will them- selves become the new law. No judge is perfect, and Dickson would have been the first to acknowledge this, but he cer- tainly deserved the satisfaction of hav- ing done his best during a critical period for both the country and the Court. The Charter is a living constitutional docu- ment ”” indeed spirit ”” and it will con- tinue to evolve to meet not only expanded expectations of individual freedoms, but also the more troubling issues of freedom in a post-9/11 world. Dickson’s successors will now have to wrestle the new demons to the ground.
The authors deserve congratulations for having undertaken this detailed study of one of the best judges Canada has pro- duced. They have made accessible, for those willing to make the effort, and without vulgarizing a complex set of con- siderations that drive the highest court in the land, a sense of the energy, discipline, tension, compromise and responsibility behind every decision.