National Post

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Saturday, May 1, 1999

A supremely imperial tour
The Supreme Court justices' three-day field trip to Winnipeg really only exposes them to a select few

Marina Jimenez
National Post

Keith Morison, National Post / Supreme Court Justice Claire L'Heureux-Dube, left, enters the Winnipeg Art Gallery for a party last night.

The trip by Supreme Court justices to Winnipeg is an imperial procession, akin to mediaeval kings and queens touring their domain, according to one Supreme Court watcher.

Like the visits of Royals, the Supreme Court justices' trip has been a carefully orchestrated event, with the jurists arriving on separate flights, riding around the city in limousines, security guards in tow. A reception Thursday was by invitation-only, open to other judges, lawyers, and law professors, and a cocktail reception for 500 yesterday was also closed to the public.

"We live in the age of the imperial Supreme Court and this is how imperial enterprises operate," says Peter McCormick, a political science professor at the University of Lethbridge who has studied the Supreme Court for two decades. "The great ones come out to the boonies and everyone gets to run around and feel excited. It's an imperial procession with democratic overtones."

He and other experts believe the judges' three-day field trip outside Ottawa is also an attempt to create judicial solidarity and enhance the role of the Supreme Court as a national institution. The country's top jurists have only gathered outside Ottawa on one other occasion, in 1992, when they held their annual private meeting in Quebec City.

Many provincial court judges have never had an opportunity to meet members of the country's top court. Their unprecedented arrival in Winnipeg will help shore up their image within their own constituency -- although it can hardly be seen as an attempt to reach out to the public.

"It makes sense for a national institution to reach out and have personal contact like they're doing . . . getting out and showing the colours," said Patrick Monahan, an Osgoode Hall law professor. "They are meeting members of the legal community more in the realm of public relations as opposed to substantive debate."

A source close to the Supreme Court downplayed the significance of the Manitoba trip, and said it was merely a working session for the judges to discuss housekeeping matters such as office space and personnel. He said the Supreme Court asked to meet with Manitoba's judiciary in an attempt to understand the impact of their rulings on other judges. "People have this perception that the Supreme Court is regal, but what really goes on is quite professional and egalitarian," said the source. "No one thinks anyone is on a higher plane than anyone else."

The trip also comes at a time of increasing scrutiny of the Supreme Court, as critics question its ability to strike down laws, a power given it by the Charter of Rights and Freedoms, which was approved by the federal government and nine provinces in 1982. This has led to controversial rulings on issues such as abortion, gay rights, and spousal payments, and criticism from some quarters that its judges are too powerful.

The trip to Manitoba is not an isolated example of the judges' effort to come out of their cloistered shell. Over the last decade, they have contributed in public discourse in other ways. Prof. McCormick notes that they now make more public speeches, and, led by Bertha Wilson, a former Supreme Court justice, publish articles on judicial trends and issues in scholarly journals, a practice that was virtually unheard of 20 years ago.

"This represents a transforming judicial role. Writing articles is another forum in which a judge can influence a wide range of issues," said Prof. McCormick.

"The reclusive style of the 1960s is no longer appropriate."

For example, Justice Claire L'Heureux-Dube has written an article on the length and "plurality" of judicial decisions for the Alberta Law Review, and one on the difference between French and English decision-writing styles called "By Reason of Authority or by Authority of Reason", for the University of British Columbia Law Review. Gerard La Forest, a retired Supreme Court judge, has written about the use of American citations in Canadian decisions in the University of Maine Law Review.

And Ms. Wilson, another retired Supreme Court judge, recently wrote an essay entitled "We Didn't Volunteer" in Policy Options, which noted that the Charter gave judges their controversial new powers. In the late 1980s, when she was still sitting, she wrote a now-famous 1990 article for the Osgoode Hall Law Journal called "Will Women Judges make a Difference?"

Ian Green, a political scientist at York University who interviewed the Supreme Court justices for a book, believes the "Supremes" take their role as a national institution very seriously, and are responsive to public criticism.

The judges told him they wanted the public to understand the judicial process, the role of the court, and the kinds of issues that are appropriate for the courts to decide.

The jurists are also conscious of the need for them to write clear decisions, and expand beyond their Ottawa-centric perspective. Federal court judges, for example, hold hearings across the country, and travel regularly.

"They're aware that there is the feeling among some trial court judges and appeal court judges that Supreme Court judges live in splendid isolation and that their decisions aren't as connected to the reality of society as they need to be," said Prof. Green, who co-authored Final Appeal: Decision-making in Canadian Courts of Appeal.

"The meeting in Winnipeg might be an attempt to respond to that criticism."

Prof. Green also discovered that the majority of Supreme Court and Appeal Court judges believe there are threats to judicial independence, and complain that decisions are often misunderstood and unfairly reported.

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