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Thursday, April 06, 2000

Trudeau drew map for court's political nature
Post-charter change
Neil Seeman
National Post


Fred Chartrand, The Canadian Press
Former prime minister Pierre Trudeau visits Bora Laskin, then-chief justice, in the Supreme Court on May 14, 1976. Trudeau's appointment of Laskin to chief justice is considered significant to the court's evolution.

If Supreme Court judges seem like major players on the political stage today, legal historians say we have Pierre Elliott Trudeau to thank.

No other political leader has left a deeper mark on Canada's legal landscape, says Ian Bushnell, one of Canada's foremost court historians and a professor of law at the University of Windsor.

That landscape changed critically after Mr. Trudeau's Charter of Rights and Freedoms was entrenched in the Canadian constitution in 1982. But Mr. Trudeau's lasting imprimatur on the political orientation of the nation's top court can be traced back more fundamentally to the man himself, not the Charter, says Prof. Bushnell.

"The Trudeau government, like none other, affected the way judges operate in Canada," he said. For instance, "Trudeau's appointment of [Bora] Laskin to chief justice was clearly meant to be seen as a mandate to change the direction of the court. There was no secret to Judge Laskin's own beliefs, which were one in the same with Trudeau's."

In 1937, while a graduate student at Harvard law school, Judge Laskin wrote a prescient law journal article attacking "the rigid application of rules" as the proper judicial function. "The taught tradition of the common law, that the law is found rather than made has proved remarkably resistant to attack," wrote the young, contrarian Mr. Laskin. Judges, he thought, should instead manifest a "spirit of social understanding."

Judge Laskin's socially activist bent -- marked by a staunch commitment to federalism and individual rights -- would come to dominate the Supreme Court long after 1984, when Judge Laskin resigned and Brian Mulroney became prime minister.

Judge Laskin, whom Mr. Trudeau named to the Supreme Court on March 23, 1970, created a firestorm of controversy within the legal profession because he had not practised law prior to becoming a judge. Then, only three years later, Mr. Trudeau added fuel to the fire when he abruptly promoted Judge Laskin, the most junior member of the court, to the rank of chief justice, passing over the eight more senior-ranking members of the bench.

"It was a denial of the seniority principle. It was absolutely shocking," said Prof. Bushnell.

Prof. James Snell, a professor of Canadian history at the University of Guelph, agrees with the selection of Mr. Trudeau as the prime minister who wielded the most influence on the court -- but for a different reason.

"It all comes down to the Charter," said Prof. Snell. "The courts became so much more important since 1982. There's just no comparison between pre-Charter and post-Charter Canada. But to say that Trudeau's choice of Judge Laskin is what makes him the most influential prime minister may be stretching things," he said.

"Court outsiders are mightily impressed with Laskin, as am I, given his prestige and legendary intellect. But there were other justices whose imprint on the law was just as strong, perhaps more, only they were less visible," said Prof. Snell.

Fred Vaughan, a court historian based in Halifax, agrees. "There is no question that Trudeau was important because he is responsible for the Charter, which has transformed the court more than anything else in its history.

However, the Charter is not self-enforcing; it must be enforced by judges and there we enter a different terrain."

By "enforcing the Charter," Mr. Vaughan means expanding the scope and definition of each of the "rights and freedoms" enshrined in the Charter -- what many conservative and some liberal critics of the court commonly call "judicial activism."

The justices of the court who have made the most impact in this respect were Brian Dickson, Bertha Wilson -- but more than any others: [Claire] L'Heureux-Dube and Beverly McLachin, said Mr. Vaughan.

Significantly, all four of the above-mentioned judges were appointed to the Supreme Court by Mr. Trudeau.

Patrick Monaghan, a constitutional scholar at Osgoode Hall law school in Toronto, said it is tough to argue with the choice of Pierre Trudeau as the politician who most influenced the direction of the Supreme Court. But things did not always work out as Mr. Trudeau might have wanted, he said.

"Trudeau's approach was to use the Charter to advance the cause of individual rights, but the Supreme Court's interpretation has not necessarily followed that philosophy. For instance, the court has used the equality provision of the Charter to protect group rights, which is not necessarily consistent with Trudeau's vision," said Prof. Monaghan.

Although there have been other post-Charter prime ministers, including Jean Chretien, the current prime minister, none has had the same impact on the court as Mr. Trudeau, said Prof. Bushnell.

During the Conservative interregnum of Brian Mulroney, "there was an effort to appoint conservatives such as Gerard La Forest. But the immense difficulty was that the Liberals had been in there for so long that all the junior judges were still wedded to a liberal orientation," he said.

Who is the second most influential prime minister to put his stamp on the court? "That's a much trickier question," said Prof. Bushnell. "Ironically, now that we are talking about judges more and more, I'm finding that lots of information is simply not getting out [about them]. For example, these days you never hear about a judge's religion, which Americans recognize as the most fundamental belief-moulding attribute," he said.

But Prof. Snell rejects the idea of greater public scrutiny of judges, something which, he says, would lead inexorably to a court that is lopsided ideologically.

"I have an admiration for a political process that has not tried to stack the court, one that has opted instead for the very best legal minds, bearing in mind regional considerations," said Prof. Snell.




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