Farewell, top court

Top Court Tales is retiring along with the chief justice, so a reflection is in order.

Goodbye.

Goodbye to Chief Justice Beverley McLachlin, who this June announced she would retire at the end of the year (more about that later). Also, dear reader, goodbye to me, at least when it comes to Top Court Tales.

This is my last column about the Supreme Court of Canada. I’ve written more than 50 of them. I’ve praised the court. I’ve criticized the court. I’ve made fun of the court. The time has come to give it a rest. The editor of this magazine agrees. It’s the end of an era, he said. (I think he was referring to the chief justice’s retirement.)

If there’s one thing I’ve learned, it’s that you have to know when to quit. That’s true whether you’re the chief justice of Canada or a simple, ink-stained wretch. By now, I’ve said pretty much everything I have to say about the Supreme Court of Canada. Sometimes, more than once . . .

Let me leave you with a couple of general reflections. First, an obvious point but one worth making nonetheless: Canada has been, and is, well served by the Supreme Court, which is an essential institution of our democracy. As long as I’ve been a court watcher — almost half a century now, beginning in 1969 when I was Justice Wilfred Judson’s law clerk — I’ve seen nine smart people working away to resolve difficult legal issues on behalf of the country and presenting reasoned accounts of the decisions they make. Mostly, they’ve got it right. Thank you, Supreme Court! I mean it.

It’s hard and lonely work being a Supreme Court of Canada judge. You have to be careful what you do and say. You may be subject to wrong-headed criticism, but you can’t hit back. You get paid well, but most judges could make a good deal more money in private practice. You have considerable professional and social status and get shown great deference, but status and deference, although nice, are not bankable. Sometimes, relationships with colleagues are not as good as everyone pretends. And, oh yes, you have to live in Ottawa.

No wonder that many judges do not wait around until the mandatory retirement age of 75 to leave (Chief Justice McLachlin will be just a few months shy of 75 when she goes). Justice Tom Cromwell was only 64 when he retired in 2016. Michel Bastarache was 61 when he went in 2008. Louise Charron was 60 when she retired in August 2011. Marie Deschamps resigned in 2012 at 59. I commented in a 2012 column: “Being a Supreme Court judge is the job every Canadian lawyer wants — until, apparently, she gets it.” It’s a tough line of work. Not everyone sticks it out the way the chief has done.

One of my main criticisms of the Supreme Court has been the way the judges are appointed. (This, of course, is really a criticism of the Constitution rather than the court itself). I’ve argued that a seat on the highest court should not be the gift of the prime minister acting alone (which it is, despite some fancy packaging), particularly given the court’s role in keeping the executive branch in check. I’ve suggested that a U.S.-style system would be better, with the prime minister nominating a candidate who then requires formal confirmation by Parliament following public hearings by a parliamentary committee. Implicit in this idea is that under the present system the Supreme Court may not be as independent from the executive as it should be, ideologically speaking at least.

Before Cromwell left last year, to be replaced by a Trudeau appointment (Malcolm Rowe), seven of the nine judges had been appointed by former prime minister Stephen Harper. This summoned up the frightening spectre of a “Harper Court” doing Harper’s bidding and extending his influence for years after he left office. It didn’t happen. The Harper Court clearly felt free to poke its patron in the eye.

It’s known as the Warren Effect. As U.S. president, Dwight Eisenhower appointed Earl Warren as chief justice of the U.S. in 1953. Eisenhower thought Warren was a safe and predictable Republican. He turned out to be liberal in his opinions. Eisenhower later said the appointment was the “biggest damn fool mistake I ever made.” You just can’t be sure how judges are going to behave once appointed.

So, maybe I’ve been wrong. Maybe the way we appoint our Supreme Court judges is OK. But there is one other thing to be said about it. The very private nature of the appointment process distances the public. It encourages the idea that the Supreme Court is a remote institution. To most Canadians, SCC judges are extrasolar figures. Few Canadians could name even one sitting judge. One reason is that traditional media, with ever-shrinking resources, reports poorly on the court. Another reason is that SCC judges, with the occasional exception, do not communicate directly with the public the way U.S. Supreme Court judges do. Such an important governance institution (arguably the most important) should not seem so mysterious and far away.

This brings me back to the retiring chief justice, Beverley McLachlin. She has been good at presenting the face of the court to the broad community (bettered only by Justice Rosalie Abella). She has addressed important issues in the public square, notably the corrosive problem of access to justice. More of this is needed. The next chief justice should be chosen with that in mind.

Meanwhile, McLachlin has written a novel, to be published in 2018 by Simon and Schuster, and there’s reason to believe that she has other completed manuscripts in her desk drawer. A new career? Be careful, chief justice. Canadian novelist Michael Crummey once told an aspiring young novelist who asked for advice, “Go to dentistry school.”  I don’t think dentistry school would work for the chief justice, but perhaps she could consider golf?

Philip Slayton is working on a new book about freedom in Canada.

Editor’s note: Philip Slayton will continue to write for Canadian Lawyer under a new theme, in addition to his Legal Ethics column, which will continue every other issue.