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Thursday, April 06, 2000

Philosophical debate changed court forever
Current approach based on 'real-world' policy consequences
Peter McCormick
National Post

Brian Dickson

The Supreme Court was once described as "a quiet court in a quiet land." It seldom earned press coverage, let alone headlines. Today, it is a major actor in national politics, over-ruling governments on policy issues. Appointed judges, not elected politicians, call the shots on same-sex couples, child pornography and aboriginal rights.

This change is usually explained by the creation of The Canadian Charter of Rights and Freedoms, but that is only half the story. Before the Charter, there was a philosophical revolution without which the Charter-empowered Court would have had much less impact. The critical date in this transformation was Sept. 24, 1979.

The "old" approach -- described by academics as "formalism" and by lawyers as "mechanical jurisprudence" -- relied on formal and mechanical rules for extracting meaning from written documents. Judges refused to "look behind" a document for things not in the text. As Justice Louis-Philippe Pigeon wrote in a 1951 journal article: "The question is, not what may be supposed to have been intended, but what has been said."

This approach relied on precedent -- a strong reluctance to over-rule previous decisions, either its own or those of the higher English courts, and a respect approaching veneration for the "landmark" decisions that anchor the common law for decades or even generations.

The "new" approach -- described as "contextualism" -- focuses on the purposes behind a document (statute or constitution alike), and a concern for the "real-world" policy consequences of a judicial decision. It is receptive to "extrinsic" evidence -- scientific and social scientific analysis and argument.

This implies a reduced premium for judicial precedent other than very recent cases. As Justice Claire L'Heureux-Dube wrote in a 1996 decision, the "modern contextual approach [is today] the standard, normative approach to judicial interpretation." Only 20 years ago, this was highly contested ground.

The champion of the new approach was Bora Laskin, appointed by Pierre Trudeau, the prime minister at the time, to the court in 1970 and as chief justice in 1973. The champion of the old "formalist" approach was Alberta's Ronald Martland.

Appointed by John Diefenbaker in 1958, Justice Ronald Martland was senior member of the court, when he was passed over for the chief justiceship by Mr. Trudeau in favour of Judge Laskin. This unprecedented action must have added a personal dimension to the philosophical dispute.

For the Laskin court's first half-dozen years, Judge Martland generally prevailed by virtue of an alliance that included the other judges of the "Diefenbaker trio" (Wilfred Judson and Roland Ritchie) and the Quebec judges. His influence was weakened by Trudeau's of six judicial appointments through the 1970s, but it was not broken. Some of the newcomers (Brian Dickson, Willard Estey, William McIntyre) generally followed Judge Laskin; others (Jean Beetz, Louis-Philippe de Grandpre, Yves Pratte) rallied to Judge Martland. As a result, Judge Laskin spent much of his early years as chief justice writing vigorous dissents. He was usually joined by Justice Wishart Spence and Judge Dickson, constituting what contemporary journalists dubbed the "L-S-D connection."

The critical change came when Justice Julien Chouinard replaced Judge Pratte in September, 1979. Judge Chouinard, a Quebec Rhodes scholar and former civil servant, quickly became Judge Laskin's critical "fifth vote." The swing continued with the departure of Judge Pigeon in 1980 and Judge Martland in 1982. Ironically, although Judge Laskin was Trudeau's chief justice, a string of Trudeau appointments left the court divided and Judge Laskin in dissent. It was Joe Clark's single judicial appointment that finally tipped the balance for Judge Laskin.

By the end of the Laskin years, the Supreme Court was more solidly unified -- with more unanimous decisions and more decisions delivered by the chief justice himself -- than ever before.

This shift has brought a willingness to bring a "generous and liberal" approach to the meaning of the Charter. Martland-style formalism would not necessarily have strangled the Charter, but would have constrained it.

Peter McCormick is professor and chairman of Political Science at Lethbridge University. His book No Further Appeal: The Supreme Court of Canada 1949-1999, will be published by James Lorimer & Co. in June.; National Post

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