Globe and Mail

Lobbying hurt court, book says

Backroom deals among top-court judges threatened Charter, Wilson felt

By Kirk Makin
Monday, March 11, 2002 – Print Edition, Page A9
The Globe and Mail

Backroom attempts by some Supreme Court of Canada judges to "lobby" their colleagues for support transformed the court into a politicized, dysfunctional institution at a key point in its existence, according to former judge Bertha Wilson.

Ms. Wilson felt the lobbying for support before court rulings was a "repugnant" threat to the development of the Charter of Rights and Freedoms, says a book published by an Ontario legal society.

"People would spend quite long periods of time in each other's room, arguing about changes and amendments, and so on and so forth," Ms. Wilson is quoted as saying by the author, Ontario lawyer Ellen Anderson.

Ms. Wilson said her exclusion from these meetings forced her to depend on law clerks to ferret out information about judicial factions that were coalescing for or against a ruling.

The former judge's extraordinary revelations shed new light on the intensely secretive dynamics of the court at a time when it was deciding major constitutional cases -- such as the 1988 Morgentaler abortion ruling.

However, her criticisms were brusquely dismissed by former chief justice Antonio Lamer. Mr. Lamer said in an interview with The Globe and Mail that his former colleague evidently misconstrued harmless and productive meetings between judges of like mind.

"Bertha was very often out in left field -- you know, way out there," Mr. Lamer said. "There was no point in going to Bertha's office and saying: 'Bertha, if you were to change this or that, I could go along with it.' Because she was stubborn as a mule."

Mr. Lamer said that while Ms. Wilson was an honest judge who was willing to change her view if a colleague could convince her she was in error, she refused to engage in the kind of "horse-trading" that unites judges and results in strong, common opinions.

"There were no cliques," Mr. Lamer stressed.

Ms. Wilson -- the first woman appointed to the Supreme Court -- consulted regularly with Ms. Anderson as she was researching and writing her book, Judging Bertha Wilson: Law As Large As Life.

Published by The Osgoode Society, the book states that Ms. Wilson viewed the cliques on the court as being largely personality-driven. The book also strongly suggests gender played a significant role.

It quotes Madam Justice Claire L'Heureux-Dubé as acknowledging in an interview that all three female judges were rarely, if ever, involved in the closed-door consultations.

(The third woman -- Madam Justice Beverley McLachlin -- has since succeeded Mr. Lamer as chief justice. She has made it an avowed goal of her administration to increase the amount of discussion between all nine judges.)

According to Ms. Wilson, the judges excluded from a tête-à-tête over a case typically remained oblivious until they suddenly discovered that a coalition had formed around a judgment.

Ms. Wilson viewed it as "urgent" that the lobbying be stamped out, the book says. It says she was particularly distressed that judges who perceived themselves as being on the "winning" side of an appeal tended to lose interest in considering other opinions.

Ms. Wilson said the lobbying was an ominous omen for the future of the court and the Charter. She expressed fears that it made judges inattentive to the all-important context of important Charter cases before the court.

It was not always that way, according to Ms. Wilson. In her early years on the court, for example, it was considered bad form to write a dissent or concurring reasons without first seeing a draft of the majority ruling. She said notes flowed back and forth between judges' chambers during the adjudication process.

"Everybody sort of waited, nobody signed anything until we all knew exactly what the situation was going to be," Ms. Wilson is quoted as saying. "Then, it seemed to change, and the concept of lobbying your colleagues to support you became an important part of the process."

One of the episodes that bothered her most involved a set of reasons Ms. Wilson painstakingly wrote about a major freedom-of-expression case involving The Edmonton Journal.

By the time Ms. Wilson had completed her reasons, the book says, all her colleagues had signed on to either a majority and minority decision already written and circulated.

"In her view, members of the Court, by engaging in lobbying their colleagues or being lobbied by them, were serving an agenda to which they had made an ideological commitment -- rather than meeting their individual responsibility to decide," the book says.

"The institution of lobbying became a methodology accepted uncritically and perhaps unconsciously."

Other insights in the book include:

As a perceived feminist, Ms. Wilson got so much threatening hate mail at the time of the Morgentaler appeal that her secretary refused to open it. As a result, Ms. Wilson did so herself.

"Remarkably enough, a good many of the letters (often only a little more temperate and reasoned in tone) were written and signed by officials of the Roman Catholic Church," the book says.

Ms. Wilson had "profound misgivings" about what she felt was a preoccupation her colleagues had with hearing criminal appeals at the expense of civil appeals.

Copyright © 2002 Bell Globemedia Interactive Inc.