Globe and Mail

Top-court judge defends bench

Retiring justice Peter Corey speaks out against grilling of potential jurists

Wednesday, March 3, 1999
Kirk Makin
Justice Reporter

Ottawa -- Grilling potential judges about their opinions is a foolish way to quell growing opposition to judicial power, says a soon-to-retire Supreme Court of Canada judge.

"Do you want to appoint someone who is pro-this, or anti-that?" Mr. Justice Peter Cory asked. "If so, this becomes a purely political forum. It will no longer be a judicial or judicious one. Do you want to get rid of the judicial aspect and appoint people from your own party who will do exactly what you want them to do?"

Judge Cory's sharp comments came amid a growing debate over judicial decision-making -- including recent judgments that dealt with child pornography and the "no means no" sexual-assault law.

The 64-year-old judge said that almost any question a parliamentary committee could ask would require a judge to violate the baseline requirement of keeping an open mind before each case.

"What are you going to ask the candidate?" Judge Cory asked. "Are you for abortion? Are you against abortion? Are you more inclined to go with the federal government or the provinces in a case involving the division of power?"

He said questioners would inevitably make the mistake of referring back to decisions made early in the candidates' careers.

"You might be asked: 'Are you of the same opinion?' Again, the answer is: 'I don't know. I won't know until I've heard the case. I may have changed my mind since then. There may be fresh evidence. There may be something new that wasn't put to me back then.' "

Chief Justice Antonio Lamer recently expressed his own reservations about this sort of grilling, saying he would not likely have submitted to it had it been a a requirement when he was appointed.

Judge Cory, in his first interview since announcing his June retirement, supplied a blunt response to those who think judges are wallowing happily in their new-found power to strike down unconstitutional legislation.

"I say that is silly," he said. "It really is. And for this reason: there was no lobby of judges saying: 'Give us this.' Or, 'we want that.'

"We are doing what we have always done and thought important. Long before there was a Charter [of Rights and Freedoms], we were in this business of interpreting the law. The court was always there with regard to the concept of what was fair."

Judge Cory also said that while Supreme Court decisions ought to be fiercely debated in public, the media have limited that debate to a small elite.

"The media has tremendous power, and the media is quite concentrated now," he said. "It's effect on the community is really very significant. A lot depends on what the media take from a judgment, because extremely few people will actually read the reasons."

Judge Cory said the media would do well to widen their circle of commentators, and that newspapers in particular have a responsibility to reprint portions of important judgments.

"Coverage doesn't need to be fair -- because what is fair is in the perception of a particular individual -- but it needs to be extensive coverage," he said.

Judge Cory also said:

Tempers sometimes flare in the backrooms of the court, and judges drop into one another's offices on a daily basis to hammer out disagreements. "When you see a decision reserved for a particularly long time, there have been extra meetings and a flood of memos back and forth," he said. "Memos are circulated to everybody. You will get one back saying: 'I agree to A and to B, but not to C -- and over my dead body to D.'

"Sometimes it becomes a problem, because if you agree to go along with Colleague X on something, Colleague Y says: 'If you say that, you've lost me.' There are seldom tranquil times. You really are a mediator to see where there is common ground."

The credibility of the court may eventually suffer if its complement remains predominantly male and white. "It may be that over time, that is so," he said. "But I would think political realities will rectify that."

It may be more trouble than it is worth for the court to continue making small amendments to unconstitutional laws (known as "reading in") rather than simply striking the legislation down.

While the public recoils in shock over wrongful convictions, it tends to be unaccountably quick to criticize court decisions upholding the right to a fair trial. "The reaction is: 'Oh, it's just a Charter technicality; he should really have been convicted,' " he said. "As soon as society feels vulnerable, there is a great desire to put somebody away -- if possible, forever. But some principles have to stay forever, like the principle of a fair trial."

JUDGE CORY SPEAKS

On worrying about a tough case:
I wake up and make illegible notes to myself at 3 a.m. The only thing I can do is discipline myself that once it is over, forget it. You have to devote all of yourself to the next one.

On the impact of major judgments:
It is suddenly out in the public domain. It can be criticized, torn apart, jumped on and spat upon. To be trite, you go home and say: 'Don't answer the phone today or tomorrow.' Friends can hardly wait to see me afterward. They say: 'Have you ever put your foot in it this time.' My wife will say, 'Oh my, what have you done now?' I am like the kid in class who receives a note to visit the principal's office.

On the right to a fair trial:
The judge stands between the lynch mob and the victim. There has to be a fair trial process and a fair review process.

On public criticism:
You know when you write the decision that the end result is going to be criticism. That is necessary and healthy. Perhaps it is a symptom of the times, but the criticism isn't as civilized as it used to be.

On why a high proportion of his decisions represented the majority:
When you are writing a decision, I think you tend to put more into the case than should be there. Others are quick to point that out, so you take it out again. As long as it doesn't infringe upon the principles you are espousing in the case, this sort of give-and-take is essential to the process. Staff

A CAREER IN LAW

After 49 years as a lawyer and judge, Mr. Justice Peter Cory said it was time to spend more time with his wife, three sons and many grandchildren.

Born in Windsor, Ont., Judge Cory was called to the bar in 1950. He was appointed to the Supreme Court of Ontario in 1974 and to the Ontario Court of Appeal in 1981.

Legendary for his courtesy and humour, he has been likened to Fred Rogers -- the hero of television's Mister Rogers' Neighborhood.

Perhaps his biggest decision -- Regina v Askov -- led to 50,000 charges being stayed because of delays. This was misleading, Judge Cory said, since many defendants faced multiple charges.

"You could divide it by roughly four, five or six because of the multiple counts," he said. "It was a little unfair. It sounded worse than it was." Staff

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