Philip Slayton - Mighty Judgment

MIGHTY

JUDGMENT

ALSO BY PHILIP SLAYTON

Lawyers Gone Bad:

Money, Sex and Madness in Canadas Legal Profession

PHILIP SLAYTON

MIGHTY

JUDGMENT

HOW THE

SUPREME COURT OF CANADA

RUNS YOUR LIFE

ALLEN LANE CANADA

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First published 2011

1 2 3 4 5 6 7 8 9 10 (RRD)

Copyright Philip Slayton, 2011

Tower of Song

Written by Leonard Cohen

Stranger Music In. (BMI)/Sony/ATV Music Publishing Canada (SOCAN)

All rights reserved. Used by permission.

How Judges Think

Excerpts reprinted by permission of the publisher from HOW JUDGES THINK by Richard A. Posner, 8, 11, 81, 82, 125, 151, 286, 306, Cambridge, Mass.: Harvard University Press, Copyright 2008 by the President and Fellows of Harvard College.

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LIBRARY AND ARCHIVES CANADA CATALOGUING IN PUBLICATION

Slayton, Philip

Mighty judgment : how the Supreme Court of Canada runs your life / Philip Slayton.

Includes bibliographical references and index.

ISBN 978-0-670-06927-9

1. Canada. Supreme Court. 2. Political questions and judicial

powerCanada. 3. Judicial reviewCanada. 4. Canada. Supreme

CourtBiography. 5. JudgesSelection and appointmentCanada.

I. Title. II. Title: How the Supreme Court of Canada runs your life.

KE8244.S52 2011 347.71035 C2011-900466-6

KF8764.ZA2S52 2011

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FOR RAYMOND AND VALERIE

THERES A MIGHTY JUDGEMENT COMING,

BUT I MAY BE WRONG

YOU SEE, YOU HEAR THESE FUNNY VOICES

IN THE TOWER OF SONG

Leonard Cohen, Tower of Song

MIGHTY

JUDGMENT

INTRODUCTION

The Voice Passed Down from the Mountain

T erri-Jean

In the fall of 2009, a lawyer for Bedford and two other sex workers argued in a Toronto courtroom that laws limiting sex-trade workers ability to protect themselves were contrary to section 7 of the Canadian Charter of Rights and Freedoms. The federal government appealed her decision to the Court of Appeal for Ontario. Whatever happens there, it is widely accepted that the case will eventually move on to the Supreme Court of Canada.

Should all that goes with prostitution be legal in Canada? What is the role of the law in regulating morality? These questions will finally be settled, far away from Terri-Jean Bedfords suburban bondage bungalow, by the Supreme Court sitting in a magisterial and remote courtroom in the severe city of Ottawa. Nine largely unknown and unelected elite lawyers, of unquestioned sobriety and impeccable careers, will decide what to do about sex workers. The chances are good that the Right Honourable Beverley McLachlin will still be chief justice when that happens. And the indomitable Terri-Jean Bedford may be in the courtroom too. In a strange turn of events, the Charter of Rights will have brought together two women from very different worlds, dominatrix and chief justice.

That fall, while sex laws were being discussed in a Toronto courtroom, a question of an entirely different kind landed in the Supreme Courts lap. On October 16, 2009, Justice Minister Ron Nicholson announced that the federal government would ask the court whether the government had the constitutional power to create a national securities regulator. This superficially dry and technical question is intensely political, with some provinces notably Quebec and Albertadetermined to hang on to their provincial securities commissions. One newspaper report predicted, Quebec will react with fury. Premier Jean Charest will howl. That howl will be echoed in Alberta

Bondage and bonds, passion and politics: just about every question we care about ends up at the Supreme Court of Canada, the most important but least known branch of our government.

This means that reform of the court is easy, at least in principle. And there should be reform, as I propose in this books Conclusion.

The Supreme Court Act provides for a chief justice and eight other judges, appointed to serve until age seventy-five by the Governor in Council (which is legal-speak for the cabinet, and which, in reality, means the prime minister acting alone). Three of the judges must be from Quebec; there are no other geographic requirements in the Act, although a convention has developed of having three judges from Ontario, one from the Atlantic provinces, one from the Prairies, and one from British Columbia. The court must agree to hear an appeal (there are limited exceptions to this requirement in certain criminal law matters when the court must hear an appeal whether it wants to or not). Section 40 of the Act says that leave should be granted when the court is of the opinion that any question involved is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court Section 53 permits the federal government to ask the court for what is, in effect, a legal opinion on certain important questions of law or fact (this is the provision under which the government asked for an opinion on a national securities regulator).

Some have argued that neither court is as important as some people think, and that both are growing less important day by day; the big decisions, so the argument goes, are made elsewhere. Others have said that Canadian Supreme Court judges have become lazy. I dont agree with either suggestion. Our Supreme Court justices are the most important decision-makers in Canada, and, as befits Canadians with such grave responsibilities, they are working away like beavers.

Who are the judges of the Supreme Court? One of the best answers comes from Dahlia Lithwick, a former Canadian who writes on U.S. legal matters. Lithwick wrote of the Canadian Supreme Court, The justices include all sorts of quirky outliers, including women, people with French accents, and men with fantastic hair. Few Canadians could be so precise and accurate about their court.