Toronto Star

Saturday, March 6, 1999

Cory seen as conscience of Supreme Court

Judge valued for his humanity is retiring at a time when the top court is under attack as too activist and interventionist

By Tonda MacCharles
Toronto Star Ottawa Bureau

OTTAWA - PETER DE Carteret Cory, gentleman, dog lover and consummate Supreme Court of Canada team player, has made the top court a more collegial and calorie-laden place.

That's because between 3:30 and 4:30 each afternoon, Cory makes a cookie run on the court's third floor, handing around a jar of shortbreads or chocolate chip biscuits to his colleagues.

They love him for it.

In the marble halls of the courthouse, it's said the definition of heaven would be to die and and come back reincarnated as Peter Cory's dog.

Anyone else would probably chafe at the unending comparisons to the star of Mr. Rogers' Neighborhood, but Cory laughs. ``I always thought I was better looking than Mr. Rogers.''

His gentle manner and legendary good humour are qualities his fellow judges value.

``The stamp of Peter Cory is humanity,'' says Justice Frank Iacobucci, his friend, tennis opponent and next-door neighbour. ``It is the quality of him that shines in his personal life and indeed in his work.''

Unfailingly polite to counsel who appear before him, Cory is regarded by some observers as the conscience of the court, a judge whose first priority has always been the individuals awaiting judgment.

Now, the conscience of the court is retiring.

Cory leaves the top court at a wrenching time when it is struggling to combat criticism it is too activist, too interventionist, too, well, supreme.

Nearly 15 years after the Charter of Rights and Freedoms was enacted and the court started enforcing Canada's newly drafted constitutional guarantees of life, liberty, equality, free expression, and free religion among others, the judges find themselves under constant attack, largely from the right, for overturning laws or, in the rare case, rewriting law.

That changing role has focused attention as never before on the court's members and drawn calls for more public scrutiny of appointments and more political power to review or override judgments.

At 73, Cory is still more than a year away from a judge's mandatory retirement age of 75.

But the intense workload and the 60-hour-plus work weeks have taken a toll on him and his wife Edith, so after 10 years on the high court bench, he says, it's time to leave, to spend time with ``Edie'' and the four grandchildren.

``It takes it out of you,'' he says, sipping tea in his book-lined office. ``It's the constant pressure that wears you down.''

What's not worn down is Cory's strong dedication to the job of judging. At heart, some say, he remains the trial judge he was for six years of his 49-year-legal career.

``This (the Supreme Court job) is not the most important role in the judiciary,'' says Cory. ``I think the trial judge is the most important entity in the whole system. It's the trial judge that demonstrates justice and fairness to the community, and that's of pre-eminent importance.''

It's a surprising statement from someone at the peak of the legal profession, but it's a philosophy that carries over into Cory's appellate work, according to those who've worked with him or observed him.

``What's noticeable about his work is he always brings a great deal of compassion to the law, especially in criminal justice,'' says York University dean of law Peter Hogg. Cory, he says, always insisted upon strict protections for accused persons and for individual rights.

And while Cory is reluctant to describe himself as liberal or conservative, experts such as Hogg say his track record puts him on ``the court's liberal side.''

``His first priority seemed to be justice for the individuals involved and then the larger issues, how it affects the development of law,'' says Toronto lawyer Duncan Boswell, who clerked for Cory from 1989 to 1990.

Another Ottawa lawyer, who also clerked under Cory, says his touchstone questions were always, ``Is it fair? Is it right? Is it just?''

``He asks the questions not that an academic or an intellectual or even a lawyer asks. He asks the questions that you or I ask almost in terms of a gut reaction.

``That's not to say he's anti-intellectual or non-academic. He's incredibly bright. But for him the issue is what is the right and the decent thing to do in humane terms.''

Decent is how many describe Cory, a man who at 17 forced his parents to sign a consent form to allow him to join the air force. A bomber pilot with the RCAF's 6 Bomber group, he flew 22 missions over Germany, but shyly declines to talk about it.

``Please. That's nothing special, compared to others who gave so much and did so much.''

What he does remember is the name and home town of his mid-upper gunner who died in the war. A Newfoundlander, Cory says. One of his favourite books now is E. Annie Proulx's Shipping News, which describes in loving detail his gunner's home province.

An avid squash and tennis player - one who apologizes after making a winning shot - Cory admits he's looking forward to life after the Supreme Court.

``I'd like to write and teach, maybe do some arbitration, mediation work in the labour field, and read things that have nothing to do with the law without a guilty conscience.''

Cory has been at the heart of several of the most controversial cases.

It was Cory who wrote the judgment in the case of Delwin Vriend, a gay Alberta teacher fired in 1991 by an Edmonton Christian college.

Cory ruled Alberta's human rights code, which did not expressly forbid discrimination against individuals on the basis of sexual orientation, must be interpreted as doing so.

``Reading in'' meaning into legislation is a new concept in Canadian law, one Cory says ought to be rarely used - only in cases where the change required is ``small, incremental and necessary under the circumstances.'' It's also one many are uncomfortable with.

Alberta Premier Ralph Klein's denunciation of ``judge-made law'' got the biggest round of applause from the 1,500 participants at the recent United Alternative convention to found a new conservative political party.

But Cory rebuts such criticisms by pointing to the 1982 Constitution.

``This isn't something sought out by judges,'' says Cory of the court's Charter-enforcing role. ``It's assigned to judges.''

It's as if the judicial job description changed with the advent of the Charter but the employer, the Canadian people, didn't really pay attention until the court started tackling its new tasks head-on.

Cory says because those tasks mean deciding life-and-death dilemmas such as abortion, euthanasia, assisted suicide or issues of fundamental freedoms such as free speech, freedom of association, or freedom of religion, the stakes are high and opinions sharply divided.

Still, Cory - the appeal judge who once threw out a contempt of court citation against Toronto lawyer Harry Kopyto - says judges ought to welcome criticism.

He said that then courts weren't fragile flowers that would wither in the heat of controversy. He says now, ``You shouldn't be here if you aren't prepared to accept the criticism. There's bound to be some. Decisions are always only going to be 50 per cent popular. It's the nature of the beast.''

What he laments is the public's lack of knowledge about the court's job as constitutional interpreter.

``This isn't a brand new concept. It's a new concept for Canada. But the U.S. has been going along this route for 224 years. Most of the western European democracies, with the exception of the U.K. have been proceeding in the same vein with a constitutional court determining the validity of legislation.''

The Reform party wants Supreme Court of Canada members appointed by the provinces, with review of the appointments by an elected Senate.

And after last week's unanimous but controversial ``No means No'' decision in an Edmonton sex assault case, Reform Leader Preston Manning said such decisions should be subject to review by a judicial review committee.

It's a suggestion that clearly appalls Cory.

``What's the purpose? Is it to get decisions we like? And who is the `we'? That's where I think it becomes worrisome. There's a tendency that it might interfere with the independence of the judiciary.''

Cory is also a traditionalist when it comes to suggestions a parliamentary committee should publicly screen judicial appointments. He can think of few questions it would be appropriate to ask a nominee.

``Would it be to find out in advance someone's views on euthanasia, freedom of expression, religion, abortion? Do they want a commitment that will always be the view of the candidate. The danger is you're getting a highly politicized candidate.''

The intense rounds of consultation within the legal community that now accompany federal judicial appointments, Cory says, are a sufficient safeguard that appointees are up to the job.

Cory will not discuss what kind of judge the court needs at this stage in its evolution, only to say that merit - not gender - should be the deciding factor.

``It will change without any doubt with time,'' he says, noting women make up half the number of students in law schools now, and an increasing proportion of appointments to lower courts.

Cory says with the current makeup of the court - seven men and two women - there have only been two occasions when the court has split along gender lines, which he says means there is no gender split.

Certainly, the gap isn't huge. But while Cory has rarely dissented with a majority decision or delivered separate concurring reasons on cases, the two women now on the bench (Justices Claire L`Heureux-Dubé and Beverly McLachlin) have done so relatively frequently, according to an analysis by five social scientists in a book entitled Final Appeal.

Two of the leading candidates to replace Cory are women, both of the Ontario Court of Appeal - Justices Louise Arbour and Rosalie Abella.

All Cory will offer is, ``There are so many people who will fill the role and undoubtedly much better than I have.''

The retiring judge leaves his job on June 1 with few regrets.

One regret he'll admit to is having spoken out after one of his early rulings. The 1990 decision concerning Elijah Askov and several co-accused affirmed the right to a speedy trial, and set a six- to eight-month delay as the maximum reasonable time lapse between when an accused is committed to trial and the trial itself.

The ruling came down when cases were jamming an overloaded system and led to the dismissal of more than 50,000 criminal charges in Ontario alone.

Cory stunned a legal audience months later when he suggested in a speech the ruling's impact dismayed the high court since it had intended general guidelines only.

Judges rarely explain or elaborate on their decisions, and although some such as Cory's former colleague and friend Justice John Sopinka encouraged it, Cory says he was never persuaded, and now wishes he'd never spoken out on the Askov fallout.

``I think I said it was misapplied, not misinterpreted,'' he says today. ``But I think it was probably an error even to have said that. Judgments must always speak for themselves.''

What speaks most loudly about Peter Cory is the universal praise he is accorded by his peers and those who work under him.

In a recent speech in Toronto, Justice Ian Binnie pointed to Cory as an example for young law students and lawyers to emulate.

Frank Iacobucci, who joined the Supreme Court of Canada in 1991, three years after Cory, calls him ``a profoundly moral man, a paragon of many many virtues.''

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