Globe and Mail

Dissenting view a judicial benchmark?

Supreme Court contretemps may be a temporary tiff or the start of a lengthy split, justice reporter KIRK MAKIN writes

By KIRK MAKIN
Monday, October 21, 2002 – Print Edition, Page B12
The Globe and Mail

It was planted at the end of a passionate dissent by Supreme Court Judge Frank Iacobucci in the case of Regina v. David Scott Hall: a buried land mine lying in wait for the unwary.

Summing up his feelings in a case that involved the right to bail, Judge Iacobucci accused the majority of meekly acceding to a bald attempt by Parliament to circumvent the Court. Worse still, he said, the 5-4 majority -- led by none other than Chief Justice Beverley McLachlin -- had "abdicated" their role to safeguard vital constitutional rights.

Strong stuff -- especially coming from a judge whose enthusiasm for the much-debated theory of a "dialogue" between courts and legislatures matches that of the Chief Justice herself.

What could cause such a genteel judge to unload a blast at his Chief Justice?

First, the background. Mr. Hall was charged in mid-1999 with murdering a distant relative -- Peggy Jo Barkley-Dube -- by slashing her to pieces on her kitchen floor. Not surprisingly, the community of Sault Ste. Marie, Ont., was aflame with horror and fear. The bail judge concluded that while Mr. Hall was neither a flight risk nor a threat to public safety, he ought to be denied bail based on the need to "maintain public confidence in the administration of justice."

The public confidence criteria is one police and prosecutors value as a fail-safe system. It stands available for use in horrible or high-profile cases where a suspect happens to combine the record of a pussycat with strong ties to the community. But its chief strength is also its greatest weakness: The provision is vague and very much open to discretion.

In 1992, the Supreme Court struck down a similar provision as being too vague in the case of Pearson and Morales. Five years afterward, Parliament replaced it with new wording. It was this new provision that came under attack in the Hall case. In his dissent -- a must-read for Supremophiles -- Judge Iacobucci dismissed the recast provision as "a facade of precision" that was every bit as offensive to the presumption of innocence as its predecessor.

He chided the Crown and the Court majority for failing to come up with a single, hypothetical case where a bail judge would be unable to detain an accused using one of the other bail provisions.

"I fail to see how confidence in the administration of justice is promoted by detaining an accused who is not at risk of absconding nor a threat to public safety," Judge Iacobucci thundered.

For the prisoner awaiting trial, he said, the deprivation of liberty can be devastating. Imprisoned in a typically overcrowded detention cell, Judge Iacobucci said, the defendant may lose his job, his family, and ultimately be driven to plead guilty unnecessarily.

In short, he said, denying bail simply to appease the inchoate fears of a local community amounts to a surrender of judicial integrity.

Then, Judge Iacobucci delivered the coup de grace. He said the dialogue theory has worked well -- even in past cases (especially Regina v. Mills) where the Court was trashed for allowing Parliament to get away with redrafting laws that closely mirror those struck down.

But he said nothing has yet approached the capitulation in Hall; a case that serves as an illustration of how the Court-Parliament dialogue can break down altogether.

"In my respectful view, by upholding the impugned provision -- at least, in part -- my colleague has transformed dialogue into abdication," Judge Iacobucci said.

Chief Justice McLachlin reacted to this barrage with a stiff upper lip. Utterly contrary to the claims in the dissent, she said, the modified bail provision shows just how seriously Parliament took the Morales ruling "to heart."

In fact, the give-and-take between Court and Parliament throughout the entire episode shows democratic institutions working at their best, Chief Justice McLachlin said.

Supreme Court watchers are fascinated at the split on the ruling as well as the tough approach Judge Iacobucci took to a law drafted by the Department of Justice -- where he was at one time deputy minister.

"As dialogue goes, this should be viewed as lecturing," lawyer Mahmud Jamal observed.

Another court watcher, lawyer David Stratas, said the Hall ruling signifies just how closely the judges are becoming engaged in the larger societal debate about their role. "It is a sign of the Court's increased willingness to deal with the true issues at stake in a problem -- and of the Court's confidence -- that it will entertain the debate within its own building," Mr. Stratas said.

The Hall dust-up may, in time, look like a simple muscle-flexing exercise by judges heaving themselves back into the judicial saddle for another gruelling year.

Then again, it could be freighted with deeper meaning.

Chief Justice McLachlin and Judge Iacobucci are without doubt two of the most senior and influential judges on the court. Indeed, they were the only two horses in the race to replace Chief Justice Antonio Lamer when he retired a couple of years ago. Any rift between them would represent a major development on the Court.

While personal animus is sometimes raised when observers debate judicial rivalries, it is highly unlikely to be a factor in this one. For one thing, Judge Iacobucci did not act alone in fashioning his dissent. He was joined by Mr. Justice Jack Major, Madam Justice Louise Arbour and Mr. Justice Louis LeBel -- none of whom predicated their support on a softening of his approach. In addition, while both Judge Iacobucci and the Chief Justice can be tough-minded jurists, neither has a history of being irascible or vindictive.

With that said, one heated clash over principle between a pair of judges can often lead to another. Before long, those involved feel their restraints slacken when writing in opposition to one another. A pattern sets in.

There are precedents. Chief Justice Lamer and Mr. Justice Gerard LaForest evolved into a pairing whose disagreements festered to the point where, in retirement, they have openly disparaged one another's style and tactics.

Whether the McLachlin-Iacobucci contretemps is a brief tempest or the start of a long-running split will soon become evident.

kmakin@globeandmail.ca

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