The Supreme Court of Canada

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada

It’s a great pleasure to be with you this morning.

At this early hour, I suspect that most of you would not warm to a twenty-minute overview of recent jurisprudence of the Supreme Court of Canada. So instead, I thought I would talk about the Supreme Court of Canada as an institution – our building; our mandate; and the trajectory of a typical case.

The Building

Let me start with the building, simply because that is what most Ottawans think of when they hear the words “Supreme Court of Canada”. For seven decades after its creation in 1875, the Supreme Court worked out of a smallish sandstone building that used to stand just west of the West Block, south of the security drive-thru now referred to colloquially as the “car wash”. In the 1930’s, Prime Minister McKenzie King decided it was time for a permanent home for the Supreme Court at the apex of what planners had set aside as the judicial precinct – a triangle with the Justice Building at its easterly pole, the new Supreme Court Building at its northern apex, and a future court building at its westerly pole. (The westerly pole was slated by a previous government for a new building to house the Federal Court, but remains vacant, present plans being to use it as the site of a monument to the “Victims of Communism”.)

The distinguished French Canadian architect, Ernest Cormier, was commissioned to design the new Supreme Court building. The result – which took almost five years to complete – was the now much-admired art deco masterpiece that Canadians now revere as the symbol of justice. I would love to describe the building I work in and have come to love, but time does not permit that. Instead, allow me to invite you to come for a tour – the building is open to the public and guided tours are available – and confine myself to two stories relating to the construction of the building.

The first story is about the laying of the cornerstone of the building by the late Queen Mother on May 19, 1939. If you visit the Court, you can see a grainy video of the event. Usually, King George presided over tree plantings and corner stone ceremonies. But on this occasion, Queen Elizabeth did the honours. She explained why, in what is perhaps the only feminist speech ever given by a Royal. “Perhaps it is not inappropriate that this task should be performed by a woman; for woman’s position in civil society has depended upon the growth of law.” I like to think that the Queen Mother had in mind the Persons Case ten years earlier, in which the Judicial Committee of the Privy Council decided, in a case fought valiantly by the Famous Five from Alberta – that women were “persons”, capable of holding public offices in the Senate and on the courts.

The second story concerns the Prime Minister, McKenzie King and his famous dog, Pat. Cormier designed the Supreme Court building with a flat roof, in keeping with the art deco esthetic of the building as a whole. Lore has it that McKenzie King used to walk his dog down Wellington Street in the then vacant wilds to the west of the Justice Building at Kent Street. As he watched the building progress, he became convinced that a flat roof would not do – not grand enough and not in keeping with the Gothic peaked domes of the Parliament buildings and the east and west blocks. So he ordered the architect in and demanded that the building be crowned by the peaked roof with which we are all familiar. Rumour has it that Cormier was not pleased at the demand that he crown his art deco masterpiece with a gothic “dunce-cap”. He complied, but exacted a price. It seems he refused to have anything to do with change in design of the new roof. The result was fifty years of leaks and floods. Finally, in the early nineties, Public Works tired of the constant repairs and asked its architects to look into the problem. They came to the Court to present their findings to the Justices. The cause of half a century of leaks and considerable drain on the public purse was, it turned out, bad design. The vast cavernous space beneath the vaulted uninsulated roof was creating its own weather systems, causing mini-rain storms that leaked into the library below.

I can’t resist a footnote to my roof-story. In 1945, Canadians were rocked by the disclosure that a Russian diplomat named Igor Gouzenko (usually depicted with a paper bag over his head which earned him the title “Paper Bag Spy”) had defected to Canada. The machinations of the defection required that Gouzenko be kept in hiding for a time. Legend has it that he was hidden in the damp and lonely attic of the Supreme Court building, until a new identity could be fashioned. So McKenzie King’s folly proved to be of some practical use after all!

The Court’s Mandate

Canada’s Constitution provides for three distinct branches of government: (1) the legislative branch, represented by Parliament and the Provincial legislatures; (2) the executive branch, represented by the Prime Minister, cabinet and supported by the civil service, and (3) the judicial branch, represented by courts throughout the country with the Supreme Court of Canada at its apex.

The task of the legislative branch is to make the laws that bind us.

The task of the executive branch is to enforce and implement those laws.

The task of the judiciary is to interpret the laws passed by the legislatures as well as the common law, and to resolve disputes between citizens or between citizens and the state in accordance with those laws.

This includes interpreting and applying Canada’s basic law, the Constitution, which consists of the BNA Act of 1867 and the Constitution Act of 1982 that incorporated a bill of rights in Canada’s Constitution. This may require the courts to answer questions on the constitutionality of particular laws or executive actions, and may result in the Court “striking down” laws or ruling executive acts unconstitutional.

Together, the three branches of government work to preserve the rule of law, upon which a modern democratic state depends. To function well, each branch of government must respect the peculiar role of the other. Parliament and the executive must accept the courts’ rulings on the legitimacy of the laws they pass and the actions they take, just as the courts respect the primordial role of Parliament of making laws within the bounds of the Constitution, and the role of the executive branch in implementing those laws.

Since 1949, when appeals to the Judicial Committee of the Privy Council in London were abolished, the Supreme Court of Canada is the final court of appeal for the country. Theoretically, any case in any court in Canada, as well as cases before a wide range of administrative tribunals, could end up before the Supreme Court of Canada.

While this is true in theory, in practice, the Supreme Court of Canada hears only cases involving issues of law of public importance, subject to a few exceptions in the Criminal Code. The appellate courts of each province and the Federal Court are the final arbiters of the vast majority of legal disputes. As a result, the Supreme Court of Canada hears only about seventy-five cases a year.

A case can come to the Supreme Court of Canada in one of three ways. The first – and most usual – is by an order granting leave to appeal. In the usual case, parties contesting the decision of a provincial court of appeal seek leave to appeal to the Supreme Court of Canada. The second is as a result of a Reference by Parliament to the Supreme Court or a Reference by a legislature to a provincial court of appeal, which may be appealed to the Supreme Court – you may recall the Senate Reference on which the Court pronounced last year. The third way a case may come to the Supreme Court is under provisions of the Criminal Code that grant an automatic or “as of right” appeal.

Ultimately, our job as judges of the Supreme Court of Canada is to settle questions about the law – including the Constitution – and how it should be applied. We are first and foremost a court of law, not the facts – something we prefer to leave to trial courts. When the law is uncertain or unclear, governments, individuals and businesses do not know what they can lawfully do and what they cannot lawfully do. Uncertainty in the law has negative consequences. Law-abiding citizens may unintentionally commit crimes. Businesses unsure of the legal situation may be discouraged from investing. Governments may unintentionally cross the line between constitutional conduct and unconstitutional conduct. In answering the questions put before us, we strive to give answers that are wise, clearly expressed and practical. That is our job.

Before I go on to how the Supreme Court does its work on the cases as they progress through, let me pause to address the critics. There are two views of courts and the judges that staff them.

One view – often touted in op-ed columns and occasionally by elected officials – is that courts are mysterious places, where unelected judges closet themselves behind closed doors to cook up Delphic pronouncements that everybody has to obey whether they understand them or not.

The second view – and the more accurate view, I would contend – is that courts perform their essential duties in open court and as transparently as possible, in accordance with settled principles of law and interpretation, with restraint and appropriate deference to the roles of the legislature and executive branches of governance and with concern for women, men and children who make up the public.

You will decide for yourself which of the two views is the more accurate. But let me suggest that the first view rests on two misconceptions.

The first misconception is the idea that since judges are not elected, they are illegitimately usurpers. Judges in the British tradition, which Canada inherited, have never been elected. And for good reason. Judges, who are constantly called on to act impartially between citizens, and between citizens and the state, must be independent and seen to be independent. An elected officer perhaps in fact and certainly in appearance is beholden to the segment of the population that elected her. This undermines the perception of impartiality required of a judge.

The second misconception is that the judicial system is secretive and non-transparent. This is not so. Canadian courts are open to the public. Anyone can walk into any courtroom on Elgin Street or into the main courtroom in the Supreme Court of Canada and watch the judges as they listen to the arguments and question the lawyers or the parties. In the Supreme Court of Canada, we go further – we televise our hearings on CPAC and live stream online. Our discussions on how to resolve the case are private, but the Court provides detailed reasons for its decision and concurring or dissenting views, and works with the press to ensure accurate reporting of what the case decides. The decisions of the Court are put into the public domain through press reports and on-line. Members of the public and the academic community comment and criticize. If Parliament or a provincial legislature does not like the result, it can, and often does, modify that result by passing a new law, with only one constraint – that the law does not violate the Constitution. In this way the law grows and develops in a way that is constitutional and serves the needs of Canadians. All this is as it should be.

The Life of a Case in the Supreme Court of Canada

In the spirit of openness and transparency, let me conclude with a brief sketch the life of a typical case in the Supreme Court of Canada.

The process starts with an application for leave to appeal filed by a losing party in a provincial court of appeal. Parties file arguments – often electronically – for and against granting leave to appeal. The Court considers the arguments and decides whether the case raises a matter of public importance requiring clarification or decision by the Supreme Court. That decision is reviewed by all the other judges – presently three women and six men, for a total of nine.

If leave is granted, the case moves to the second stage of preparation for oral argument. Parties file arguments (called factums) and supporting material, including the evidence and judgements in the courts below. Interveners – individuals or groups who have an interest in the outcome or want to present particular perspectives – may file their own briefs. This too is more and more often done electronically.

The third stage is an oral hearing. Typically, each side has an hour to present their side of the case. Interveners are also often granted the right to present oral arguments.

The justices hearing the appeal – usually seven or nine – prepare meticulously for the hearing. We read the judgments below. We look at critical pieces of evidence. We study the written briefs of the parties and interveners. Usually, we ask one of our law clerks for a memo outlining all the arguments and possible dispositions. When we walk into the courtroom for the hearing, we know all about the case. Our minds, however, are open. We need to listen to the parties and interveners and ask them the questions that are troubling us. All this, as I mentioned, takes place in public and is televised.

When the hearing is over, we enter on the fourth stage of the case’s progress – deliberation. We conference in a room behind the Courtroom, around a round table Cormier designed for the purpose so long ago. We have open and spirited discussions. We argue, we question each other. At the end a majority view emerges. Often – in about 70% of the cases – we are unanimous. But we do not twist arms – the right to take a different view and dissent is fundamental to our process.

The Chief Justice assigns the task of preparing majority reasons to one of the justices. Writing reasons is a continuation of the process of deliberation. The justice writing wrestles with the legal and sometimes factual problems the case presents, and when the first draft is sent out, other justices offer comments, criticisms and suggestions for improvement. The product that finally emerges after innumerable redrafts often looks quite different than what we envisioned around the conference table.

The fifth and final stage is publication and delivery of the reasons for judgement. This involves technical editing and translation from English to French or French to English – all judgments are released in both languages. We announce the projected date of delivery, and on that date, the Court’s Executive legal officer meets with members of the press to explain the decision and answer questions.

The whole process from filing notice of appeal to issuing judgment may take six months or more. Just as we strive for clear reasons, we also strive for prompt reasons. That said, deciding the most difficult issues the Canadian legal system throws up—issues that may have a great impact on the parties and the public – is not something that can or should be done on the turn of a dime.

Conclusion

I hope I have left you a little more knowledgeable about the Supreme Court of Canada, where I have been privileged to serve over twenty-five years – the building, the mandate and the trajectory of a typical case. Let me add this assurance: each of the nine justices of the Court is passionately committed to their work and the goal of a fair and efficient justice system for all Canadians. We aren’t Delphic oracles. We are the servants of the people, nothing more and nothing less.

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
Mayor’s Breakfast Series
Ottawa, Ontario
November 25, 2014