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Supreme Court appointments in the charter era: the current debate and its implications for reform Hanson, Lawrence J 1993

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THE UNIVERSITY OF BRITISH COLUMBIASUPREME COURT APPOINTMENTS IN THE CHARTER ERA:THE CURRENT DEBATE AND ITS IMPLICATIONS FOR REFORMbyLAWRENCE JOHN HANSONB.A. (Hons.), The University of Saskatchewan, 1991A THESIS SUBMITTED IN PARTIAL FULFILMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF ARTSinTHE FACULTY OF GRADUATE STUDIESDepartment of Political ScienceWe accept this thesis as conformingto the required standardJUNE 1993© Lawrence John Hanson, 1993In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(Signature)Department of ^Political ScienceThe University of British ColumbiaVancouver, CanadaDate^June 23, 1993DE-6 (2/88)iiAbstractThe presence of the Charter of Rights and Freedoms in theConstitution of Canada has transformed the historic discourse aboutwhat types of people should be appointed to the Supreme Court andthe manner in which they should be selected. During the periodbetween 1949, when the Supreme Court replaced the JudicialCommittee of the Privy Council in Britain as Canada's highestappellate body, and the Charter's entrenchment in 1982, the debatecentered almost exclusively on questions of federalism.Specifically, the provinces argued that in a federal country, it isinappropriate that the status and composition of the court of lastresort be left to the sole discretion of the central government.The Charter, with its enumeration of a variety of socialcategories, has produced new demands that the Court be moresocially representative. Feminist legal scholars and women'sadvocacy groups claim that a more representative judiciary ingeneral and Supreme Court in particular would perform both symbolicand instrumental functions, while ethnocultural organizations haveto date concentrated almost solely upon the symbolic dimension. Bycontrast, claims for self-government and separate justice systemsillustrate that many aboriginal leaders believe their peoples'grievances can best be met through disengagement from, rather thanfurther integration into, Canadian political and legal processes.The Charter's presence also has conditioned demands for areformed appointment process. Now that the Court is to serve asthe arbiter of citizen-state relations, many suggest, it isimproper for the state to have sole control over who is appointediiito that body, and therefore a more participatory and pluralisticappointment process is advocated.Clearly, these two broadly-defined reform agendas can conflictwith one another. While the provinces demand more diffusegovernment involvement in the appointment of judges, thoseconcentrating on the Court's Charter responsibilities believe thatthe state already unduly dominates the process. However, thecurrent debate has further, largely unexplored consequences forpotential reform. The failure of most participants in the debate,be they governments, scholars or advocacy groups, to articulatecoherent approaches to questions of jurisprudential theory,combined with the difficulties inherent in applying the concept ofrepresentation to a judicial body, renders their critiques lessvaluable as guides to reform. Worse, their inadequate treatment ofthese issues often results in such critics undermining thelegitimacy of the institution whose reform they seek.Table of ContentsAbstract^ iiTable of Contents^ ivAcknowledgement vChapter One^Introduction^ 1Chapter Two^Traditional Federalism Concerns^9The Federalism Legitimacy Challenge^9The Duality and Regionalism Dimensions 21The Ongoing Salience of Federalism^32Under the CharterChapter Three The Social Representativeness andOpenness Dimension^ 36The Impact of the Charter of Rightsand Freedoms 36Social Representativeness and theCourt^ 37Gender and the Supreme Court^39Ethnoculturalism and the Court 54Aboriginal Peoples and the Court^59The Openness Dimension^ 71Chapter Four The Implications of the Debate forReform of the Supreme Court 84Tensions Between the LegitimacyChallenges^ 84Structural Problems Within the Debate:Jurisprudential Theory, Representationand the Court 89Jurisprudential Theory and theCurrent Debate^ 90The Application of the Concept ofRepresentation to a Judicial Bodyand the Emergence of IdeologicalConsiderations^ 106Chapter Five^Conclusion^ 116Bibliography 126ivVAcknowledgementI wish to express my gratitude to my thesis supervisor,Professor Alan Cairns, for his boundless encouragement, enthusiasmand patience. His ability to help me refine my own thoughts, whileoffering fresh insights and new avenues of inquiry, improved thisthesis and made its preparation more enjoyable. Professor AvigailEisenberg read an earlier draft and offered a number of thoughtfulcomments. Thanks also are due to Professor Sam LaSelva, whosuggested source material which proved highly valuable. Needlessto say, any errors which remain within these pages are purely myown.Finally, I wish to thank my family, particularly my parents.Their support has always been deeply appreciated, if far tooinfrequently acknowledged.Chapter One - IntroductionThe extent to which a given institution becomes the focus ofattention and, potentially, criticism, will be a function of thetypes of societal actors, be they individuals, groups orgovernments, which are convinced that the functioning of theinstitution bears directly on their interests. To ensure thattheir concerns are not ignored or sacrificed, they are likely todemand some input into its operation. Thus, should the institutionacquire new roles and responsibilities, novel participants mayenter the debate, each arguing that inasmuch as the institution nowaffects them, they too must have a voice in its shaping. Canada'sexperience with the workings of final judicial appellate bodies andtheir interaction with society has historically been an eloquentillustration of this phenomenon.Although the final appellate authority in Canada has undergoneimportant changes since Confederation, including a transformationin the body vested with this responsibility and the addition of aconstitutionally entrenched rights document, a significant factorhas remained constant. The court of last resort has always beengranted jurisdiction in all areas of law, including cases involvingboth federal and provincial statutes, the common and civil law andthe constitutional division of powers set out in the British NorthAmerica Act, 1867, now the Constitution Act, 1867. Thus, in bothits incarnations and prior even to the entrenchment of the Charterof Rights and Freedoms in 1982, the ultimate appellate authority in2the Canadian judicial system has exerted significant influence.What has changed with the passage of years is the nature of, andparticipants in, the debate surrounding the appellate body.Alan Cairns has identified three separate judicial regimesunder which constitutional interpretation has taken place inCanada, each accompanied by a debate surrounding the composition ofthe final appellate body.' During the first period, extendingfrom 1867 to 1949, the Judicial Committee of the Privy Council inBritain served as Canada's final court of appeal, a function it hadperformed prior to Confederation. However, despite the existenceof the Judicial Committee, the British North America Act includedprovisions allowing for the creation of a general appeal court inthe new dominion.2 Yet it is clear that the Fathers ofConfederation in no way intended this provision to entailinterference with the right of appeal to the Judicial Committee.During the Confederation debates, Georges Etienne Cartierproclaimed "the spirit of the Conference at Quebec indicated thatthe appeal to the judicial committee of Her Majesty's Privy Councilmust always exist, even if the court in question is established."31 Alan C. Cairns, "Who Should the Judges Be? CanadianDebates About the Composition of a Final Court of Appeal," inHarry N. Scheiber, ed., North American and ComparativeFederalism: Essays for the 1990s (Berkeley: Institute ofGovernmental Studies Press, 1992).2 Section 101 of the Act states:The parliament of Canada may, notwithstanding anythingin this Act, from Time to Time provide for theConstitution, Maintenance and Organisation of aGeneral Court of Appeal for Canada....3 Parliamentary Debates on the subject of the Confederationof the British North American Provinces (Quebec, 1865), 575.Cited in Michael John Herman, "The Founding of the Supreme3The Liberal Government of Alexander Mackenzie exercised thepower to create the Court in 1875, with the passage of the SupremeCourt Act. However, during this first period the Supreme Court wassubordinate to the Judicial Committee in three ways. First, alldecisions of the former were subject to review by the latter.Second, in many instances litigants were permitted to by-pass theSupreme Court entirely and appeal a lower court ruling directly toBritain. Finally, like all other Canadian courts, the SupremeCourt was bound by the principle of stare decisis and therefore hadto abide by precedents established by the Judicial Committee. 4During this period, then, the question was whether finalappellate jurisdiction should be removed from the JudicialCommittee and vested in the Supreme Court. Cairns notes that whilethis debate was carried on within the framework of Canada'sprogress from colony to nation, beneath the nationalist-imperialistdiscourse lay the more significant concern of whether theconstitution could best be interpreted by judges in Canada or inthe mother country. 5 It will become evident during thisexamination that though the final appeal court, in both of itsincarnations, has had ultimate jurisdiction in all matters of law,it has been its role as arbiter of the constitution which has beenthe motivating factor behind most challenges to its legitimacy.In 1939, the King Government introduced an amendment to theCourt of Canada and the Abolition of the Appeal to the PrivyCouncil," Ottawa Law Review 8 (1976), 12.4 Peter H. Russell, The Supreme Court of Canada as aBilingual and Bicultural Institution (Ottawa: Queen'sPrinter, 1969), 25-26.5 Cairns, "Who Should the Judges Be?" 58.4Supreme Court Act prohibiting appeals to the Judicial Committee.The proposed legislation was referred to the Supreme Court itself,which the following year declared the legislation intra vires ofthe federal Parliament. Several provinces then appealed thedecision to the Privy Council. Following a lengthy delayprecipitated by the second world war, a 1947 Privy Council rulingupheld the decision of the Supreme Court, arguing that theprovisions of s. 101 of the British North America Act, combinedwith Canada's new status under the Statute of Westminster, gaveParliament the right to abolish all appeals to the Privy Counci1.6In 1949, ten years after it had originally been introduced, theamendment was enacted and the Supreme Court of Canada became"supreme" in fact as well as name. Thus began the second judicialregime, a period which lasted until the adoption of the Charter ofRights and Freedoms.During this second period, debate about the final appeal court(now the Supreme Court of Canada) shifted toward questions offederalism. Now that the Court was to serve as the final arbiterof the federal system, its status, structure and composition wouldobviously become of greater importance to the provinces. Despiteits new status, the Court's composition, jurisdiction and in factits very existence were dependent upon an Act of the federalParliament and were therefore completely subject to its discretion.Further, appointments to the Court were made by the federalgovernment, with provincial input being neither required nor6 Attorney General of Ontario v. Attorney General of Canada[1947] A.C. 128. For a discussion of this case and itsprecursors, see Herman, "The Founding of the Supreme Court."5frequently sought.Potential concern over this situation remained largely dormantduring much of this period, owing to the fact that the Court's roleas umpire of the federal system became much less salient as thefederal and provincial governments resolved differences through theprocesses of executive federalism. By the 1970s, however, thebreakdown in federal relations resulted in disputes being thrustonce again into the more adversarial, and often winner-take-allarena of constitutional litigation. The Court's rulings in thesecases, which by and large went against the provinces,' heightenedprovincial interest in the Court and strengthened the desire forreform. This trend was fortified by the constitutional struggleswhich have taken place over the last thirty years. As Cairnsnotes: "[t]he question of what should be done about the SupremeCourt in most of this second period was part of a much largerquestion of what kind of people Canadians were or should becomeunder constitutional fostering."8 Thus, the myriad constitutionalreform proposals which emerged during this period commonly includedprovisions relating to the Court, most of which demanded itsconstitutional entrenchment and a voice for the provinces in theappointment process.In the third phase, which began in 1982 and continues to thepresent, debate about the Court's status and composition has taken7 See for example, Public Service Board v. Dionne [1978], 2S.C.R., 191; Canadian Industrial Gas and Oil Limited v.Government of Saskatchewan [1978], 2 S.C.R., 545; CentralCanada Potash Co. Ltd. and Attorney General of Canada v.Government of Saskatchewan [1979], 1 S.C.R. 42.8 Cairns, "Who Should the Judges Be?" 65.6on new dimensions as a result of the entrenchment of the Charter ofRights and Freedoms. Cairns asserts that the presence in theconstitution of an instrument which regulates citizen-staterelations draws the citizenry into the constitutional order. Thistrend is further enhanced by the explicit enumeration within theCharter of a variety of social categories such as race, gender andethnicity. Canadians are thus encouraged to view themselvesconstitutionally in such terms and to believe that both thejudicial selection process and the composition of the judiciaryitself should be sensitive to these categories. Yet the federalismconcerns of the second period have by no means abated and, as aresult, the debate now is characterized by two distinct challengesto the Court's legitimacy.9It is this third period with which this thesis is primarilyconcerned. Chapter 2 outlines the federalism dimension of thedebate. Though the main focus of this work is the post-Charterera, the framework of the federalism discourse took shape duringthe second period and therefore requires description and analysis,especially the plethora of reform proposals which emerged duringthe constitutional conflicts of the 1970s. Closely related to, andat times indistinguishable from, federalism are matters relating toduality and regionalism. Thus, this chapter also will discuss theunique debate in Quebec, including recurring demands that theSupreme Court's appellate jurisdiction be removed in provincial lawmatters, and will explore the question of whether regional balanceon the Court should be viewed as valuable and necessary.9 Ibid., 68-73.7Chapter 3 will review the second component of the post-Charterdebate, the question of social representativeness and the Court.It will probe the claims made by women and ethnocultural groupsthat both the appointment process and the composition of the Courtshould be more reflective of the norms established by the Charter.In addition, the relationship between aboriginal peoples and theCourt will be explored, particularly the question of their furtherintegration into the existing judicial process versus a separateaboriginal justice system.Chapter 4 will attempt to assess the debate and some of thepotential solutions being offered with a view toward their possibleimplications for reform of the Court. It maintains that not onlywill it be problematic to meet simultaneously both types oflegitimacy challenges, but also that significant structuralproblems exist within the debate itself. Specifically, the generalfailure of most participants in the discourse to articulatecoherent views of jurisprudential theory, combined with the factthat the term "representative" is grafted onto the judiciary withlittle explanation of its possible implications, renders thesecritiques less capable of serving as guides to reform. Worse,these critics' inadequate treatment of these issues leads a numberof them to inadvertently undermine the legitimacy of the veryinstitution they are endeavouring to reform. Finally, this chapterwill pursue the question of whether the issue of judicialphilosophy and ideology is likely to emerge as the most prominentconcern in the controversy besetting the Court and will in factovershadow the types of concerns which currently dominate thedebate.8This thesis, then, hopes to illustrate that we are ill-servedby the present debate surrounding Supreme Court appointments.Questions of how we can best develop a justice system whichcommands the respect of the citizenry and a judicial process whichproduces results beyond reproach have become entangled with thepolicy objectives of social movements. Though the achievement ofsome of their goals may be both valuable and long overdue, theymust be kept separate from the creation of a constitutionally soundtheory of the role of the judiciary in a nation with an entrenchedrights document like the Charter. It is vital that this task beundertaken now, while the debate is in its formative stages. Ifnot, we may be left in the unfortunate position of being burdenedwith a debate whose terms, though largely unhelpful, resistsubstantial change.Chapter Two - Traditional Federalism ConcernsThe Federalism Legitimacy ChallengeAlthough it has been raised by different groups at varioustimes, the federalism-based challenge to the legitimacy of theSupreme Court has remained remarkably static over the years.Basically, the argument is as follows. In a federal nation inwhich a single court has final jurisdiction in matters of bothfederal and provincial law, it is a violation of the federalprinciple for one of the two levels of government to possesscomplete discretion over that court's status, structure andcomposition. Furthermore, if this same court is to serve as thefinal arbiter of the constitutional division of powers, one of theparties to a dispute will have both established and appointed allof the members of the body charged with that dispute's resolution.Thus, the existing infringement of the federal principle will becompounded by the transgression of broader precepts of equity andfairness. Even if it could conclusively be proven that this set ofcircumstances in no way affected the court's outlook and rulings,the imperative that "justice must not only be done, but seen to bedone as well" clearly would be defied.It must be stressed, however, that these federalism-orientedchallenges are a relatively recent phenomenon. Although someMembers of Parliament from English Canada argued at the time of itsfounding that allowing the Supreme Court appellate jurisdiction inprovincial law matters violated "pure" federalism and that there910should be a judicial division of powers which paralleled thelegislative one, such voices were a distinct minority.10 As weshall see below, while Quebec Members strongly opposed appellatejurisdiction in provincial matters from the outset, their concernwas the protection of Quebec's civil law rather than the integrityof federalism.As to the charge that it is a violation of classical federalismfor the final arbiter of federal disputes to be appointed solely byone level of government, during debate surrounding the abolition ofPrivy Council appeals only the Province of Quebec raised thismatter. In a study conducted for the Royal Commission onBilingualism and Biculturalism, Peter Russell argues that Quebecremained the argument's only exponent by the late 1960s.11By the mid to late 1970s, the combination of the Court's re-emergence as umpire of the federal system after the breakdown inintergovernmental relations, coupled with ongoing attempts topatriate and amend the constitution, thrust the Court onto thestage of constitutional reform. The issue of Supreme Court reformthus became a part of the much broader agenda of constitutionalrenewal.' While myriad differing recommendations emerged from the10 Russell, The Supreme Court of Canada as a Bilingual andBicultural Institution, 14.11 Ibid., 37, 40. However, Russell hypothesizes that theother provinces' reluctance to submit questions ofjurisdiction over off-shore mineral rights to the SupremeCourt may have resulted from such distrust.12 For a useful summary of reform proposals developed bygovernments, task forces and scholars see A. WayneMacKay and Richard W. Bauman, "The Supreme Court of Canada:Reform Implications for an Emerging National Institution,"in Claire Beckton and A. Wayne MacKay, The Courts and theCharter, (Toronto: University of Toronto Press, 1985),11provinces, the federal government and various individuals andgroups, three general trends are evident. First, there waswidespread agreement that the Court's composition and jurisdictionshould be formally entrenched in the constitution so that a singlelevel of government could no longer make important changesunilaterally. Second, most proposals included provisions giving theprovinces input into the appointment process. Finally, by andlarge, these plans were attempts to "redress the too-dominant rolethat the federal government had assumed with the ending of appealsto the Judicial Committee" and thereby respond to concerns offederalism. 13Demands for change would appear especially logical if it wereevident that in the period since 1949, Supreme Court decisionsrelating to the federal division of powers had been somehow biassedin favour of the federal government. However, those who havestudied these matters in detail largely have found that this simplyhas not been the case.14 In fact, in his Royal Commission study,Russell stresses that any provincial objections to the SupremeCourt stemmed not from anger over specific rulings, but rather fromthe belief that federal equity required that the Court be eitherindependent of both levels of government or bilaterally dependentupon both. According to him, calls for change were not based on97-105.13 Cairns, "Who Should the Judges Be?" 67.14 Peter W. Hogg, "Is the Supreme Court Biassed inConstitutional Cases?" Canadian Bar Review 57 (1979)Peter H. Russell, The Judiciary in Canada: The ThirdBranch of Government (Toronto: McGraw-Hill Ryerson Ltd.,1987), 116.12provincial distrust of the Court so much as a perception that theirparticipation in the appointment process would both improve theCourt and enhance provincial confidence.15 Yet if this was thecase in the late 1960s, perceptions appear to have changeddramatically by the close of the following decade, likely as aresult of constitutional haggling in general and particular SupremeCourt judgments specifically. An examination of constitutionalreform proposals put forward by the governments of British Columbiaand Alberta are instructive in this regard.In 1978, the Government of British Columbia introduced a seriesof position papers relating to a variety of constitutional reformmatters. The paper dealing with the Supreme Court begins byadvancing the traditional criticism that the Court's existence,composition and jurisdiction are dependent upon one level ofgovernment. It asserts that the provinces are forced to ask"how...a Court subject to these constraints [can] fairly-fulfil itsrole as impartial umpire of the federal system?" [emphasis mine]l6This does not appear to be an argument based simply on "improving"the Court. Rather, the use of words such as "fairly" and"impartial" in this fashion suggest a perception that unlesschanges are made, it will be difficult for the provinces to beassured of equitable treatment from the Supreme Court.The Government of Alberta's 1978 constitutional position paper,15 Russell, The Supreme Court of Canada as a Bilingual andBicultural Institution, 46.16 Government of British Columbia, British Columbia'sConstitutional Proposals: Paper No. 4, Reform of theSupreme Court of Canada, (Victoria: Queen's Printer,1978), 10.13Harmony in Diversity similarly argues that Supreme Court reform isnecessary:[s]ince interpretation of the constitution may have animpact upon the division of constitutional responsibilitiesand jurisdiction assigned to the federal and provincialgovernments, it is important that the court which interpretsconstitutional provisions be clearly seen to reflect thefederal nature of the country. It must be cognizant of notonly the views of the federal government but also of theprovincial governments •17The language in the Alberta document is perhaps not as harsh asthat of the British Columbia proposals. In fact, at first glanceit might appear to be reflective of the mood of the 1960s describedby Russell, in which the provinces promoted reform of the Court onthe grounds of improving it, rather than suggesting it could not betrusted on the basis of its current status.Such an interpretation would be mistaken. As we shall see,conventions of regional representation on the Court have developedand traditionally are defended on the grounds that they will ensurethe presence of knowledge about all parts of the country on theCourt. The Alberta proposal, however, suggests that because all ofits judges are appointed by the central government, the Court isoverly aware of its views and lacks requisite knowledge of theopinions of provincial governments. The implication is that judgesare to bring to the fore the positions of the government by whomthey were appointed.Even if one is willing to accept this view of the judge's role,there is little logical relationship between the perceivedweaknesses of the current system outlined in the plan and the17 Government of Alberta, Harmony in Diversity: A NewFederalism for Canada (Edmonton: Government of Alberta,1978), 11.14solution proposed. Presumably, a prospective Supreme Court Justicewill have practised law and likely served on the bench in one ofthe provinces. How could provincial input into the processidentify candidates with some sort of additional insight intoprovincial government attitudes? The pool of potential appointeeswould not change simply as a result of new players in theappointment process.If anything, Alberta's specific proposal highlights the fallacyof its supposed underlying assumptions. It recommends that a newconstitutional court be created whose judges would come from a poolof forty or fifty Superior Court judges distributed among theprovinces on the basis of population. The federal government wouldappoint Superior Court judges to the pool from lists submitted bythe provinces. Panels would then be selected at random to hearconstitutional cases. Under Alberta's plan, then, theconstitutional court would be composed solely of the Superior Courtjudges, all of whom are appointed by the federal government.Granted, the provinces would have a say in which of them ascendedto the constitutional court.18 The fact remains, however, thatthere is no reason to suspect that these judges would have somespecial knowledge of the views of provincial governments.There are two other interesting feature in the Alberta plan.Because the new constitutional court would be composed of SuperiorCourt judges, its members would reside within their own provinces,rather than in Ottawa. Furthermore, the Government proposed thathalf of all constitutional cases be heard outside of the nation's18 Ibid., 12.15capital. These recommendations clearly suggest a view that judgeswho spend too much time in Ottawa will somehow become socializedinto a milieu which stresses the values of centralism overprovincial autonomy. Finally, Alberta's enthusiasm for a Courtwhose membership would be in constant flux, leaving it incapable ofdeveloping coherent policy orientation and specializations,illustrates deep misgivings about judicial power.'The language of the 1978 discussion paper released by thefederal government as part of the accompanying documentation of itsconstitutional reform bill, stands in stark contrast to that of theBritish Columbia and Alberta proposals. Although it too calls forthe entrenchment of the Court and a role for the provinces in theappointment process, the federal government goes out of its way tostress that while reform is desirable, there is nothing to suggestthat the existing Court is anything less than completelyindependent and impartial. In the section dealing withentrenchment, it is asserted that[f]or all practical purposes the existence and independenceof the Supreme Court is as secure as it would be if it wereentrenched in the Constitution, that is not subject toalteration by Parliament alone. Nevertheless, it is mostappropriate for the Court, both as a general court of appealand as the final court in constitutional matters, to haveits existence and role set forth in the Constitution.'Similarly, while recommending provincial involvement in the19 Alan C. Cairns, "Constitution-Making, Government Self-Interest, and the problem of Legitimacy," in Allan Kornbergand Harold D. Clarke, eds., Political Support in Canada: TheCrisis Years, Essays in Honour of Richard A. Preston (Durham:Duke University Press, 1983), 407.20 Otto E. Lang, Constitutional Reform: The SupremeCourt of Canada (Ottawa: Canadian Unity Information Office,1978), 1.16appointment process, the government claims that "it is clear thatthe independence of the judges is not affected by the presentsystem of appointment. Nevertheless, it has been widely recognizedthat the provinces might be given some role in the appointmentprocess. ,,21The document does not explain what benefits would be derivedfrom provincial involvement in the appointment process. It doesnot even invoke the traditional argument that though the Court mayin fact be completely independent and impartial, justice must notonly be done, but seen to be done as well. By rejecting socompletely the notion that a final appellate body whose existenceand membership lie at the discretion of one level of government is,in fact, problematic, the federal government is unable to offer anycompelling justification for its own reform proposal.Although a constitutional settlement eventually was secured,the Constitution Act, 1982 raised more questions about the SupremeCourt than it answered. Ambiguous drafting has left open to debatethe question of whether the Court is now constitutionallyentrenched. Confusion stems from the fact that while the newamending formula alludes to the Supreme Court, it is not mentionedelsewhere in the Constitution. This has led Peter Hogg to arguethat since the sections outlining the formula apply only toamendments to the "Constitution of Canada," Parliament retainsfully the right to amend the Supreme Court Act under s.101 of theConstitution Act, 1867.2221 Ibid., 2.22 Peter W. Hogg, Constitutional Law of Canada, SecondEdition (Toronto: Carswell, 1985), 63.17By contrast, Ronald Chef fins insists that the Constitution Act,1.982 formally entrenched the Court. He asserts that the list ofstatutes referred to in s.52 as being part of the Constitution ofCanada is not exhaustive and that the Supreme Court Act can beconsidered part of the Constitution and therefore subject to theamending formula.23 It is not necessary for our purposes here toformally accept one of these propositions. However, it will laterbe demonstrated that subsequent attempts at constitutional reformof the Court have reflected this confusion.In 1985, the government of Quebec offered five conditions forits return to the constitutional fold, one being that it be allowedto participate in appointments to the Supreme Court.24 Thesubsequent Meech Lake Accord would have constitutionally entrenchedthe Supreme Court of Canada as well as Quebec's existing statutoryright to three positions on the Court.25 It responded to Quebec'sdemand for input into the appointment process by granting thisright to all of the provinces. When a vacancy developed from amongthe common law provinces [i.e., any province other than Quebec]23 Ronald Cheffins, "The Constitution Act, 1982 and theAmending Formula: Political and Legal Implications," inEdward P. Belobaba and Eric Gertner, eds., The NewConstitution and the Charter of Rights (Toronto:Butterworths, 1983), 53.24 The other demands were a constitutional veto for theprovince of Quebec, limitations on the federal spendingpower, the constitutional declaration of Quebec as adistinct society and Quebec input into immigration policy.See "Address by Mr. Gil Remillard", in Peter M. Leslie,Rebuilding the Relationship: Quebec and its ConfederationPartners (Report of a Conference, Mont Gabriel, Quebec, May9-11, 1986) (1987).25 The history of statutory guarantees of Quebecrepresentation on the Court will be discussed in the nextsection.18those provinces would have submitted lists of potential appointeesto the federal government, which would have had to make anappointment from among these names. If a Quebec vacancy developed,the federal government would have had to choose from a list ofnominees submitted by the government of Quebec.Clearly, the Accord would have responded to traditionalfederalism concerns. Not only would the provinces have been givensignificant input into the appointment process, 26 but also thefederal government's ability to unilaterally change the compositionof the Court, or even abolish it, clearly would have come to anend. However, as we shall see in Chapter Four, these provisions ofthe Accord eventually drew criticism from some quarters not becausethey responded to federalism concerns, but rather because theyresponded solely to them.In its 1991 constitutional reform proposal, Shaping Canada'sFuture Together, the federal government again held out the prospectfor Supreme Court reform. In an accompanying document entitledResponsive Institutions for a Modern Canada, the government arguesthat "[i]n recognition of the essential role played by. ..[SupremeCourt] judges in the life of the nation," they should be selectedby the federal government from lists provided by provincial and26 In fact, Carl Baar has argued that the Meech Lake Accordwould have given the provinces a much more substantive rolein final appellate court appointments than is the case inmost other federal systems. See Carl Baar, "ComparativePerspectives on Judicial Selection Processes," in OntarioLaw Reform Commission, Appointing Judges: Philosophy,Politics and Practice (Toronto: Ontario Law ReformCommission, 1991), 153.19territorial governments. 27 This new process, it is argued, would"reflect the importance of the institution to the country as awhole and to the maintenance of clearly understood and effectiverelations between the federal and provincial levels ofgovernment. i,28The proposal reflects the confusion created by the ConstitutionAct, 1982. On the one hand it states that the Court is notentrenched in the Constitution. Yet in the next paragraph, itargues that while the Government still supports entrenchment of theCourt and its composition (including the requirement that threejudges be from Quebec), such an amendment would require the consentof all ten provinces. 29 Thus, the proposal makes the contradictoryclaims that the Court is not entrenched, but yet is subject to theconstitutional amending formulae.The provisions relating to the Supreme Court in the most recentattempt at constitutional renewal, the Charlottetown Accord agreedto by the federal, provincial and territorial governments as wellas four aboriginal groups, were largely within the traditionestablished by Meech Lake. Once again, the Court was to be27 Canada, Privy Council, Federal-Provincial RelationsOffice, Responsive Institutions for a Modern Canada(Ottawa:1991), 22. The provision allowing territorialas well as provincial governments to submit names was notincluded in the Meech Lake Accord.28 Ibid.29 By design, none of the twenty-eight proposals in ShapingCanada's Future Together required unanimous consent. Thus,the government was willing to propose changes to theappointment process because such a change supposedly wouldfall under the less stringent formula of consent by thefederal legislature, plus seven provinces representing 50%of the population.20entrenched in the Constitution, including the guarantee that threejudges come from the province of Quebec. However, in a significantdeparture from the Meech Lake Accord, the Charlottetown agreementcontained a political accord promising future negotiations toformalize a procedure for aboriginal input into the appointmentprocess.3°The only other significant change from Meech Lake was a newdeadlock-breaking mechanism. Under the proposed new process, ifthe provinces and the federal government could not agree on anappointee within ninety days of the creation of a vacancy, theChief Justice of the Court would be empowered to make an interimappointment from among Superior Court judges until such time as thevacancy was filled.31Two themes are thus evident in attempts at constitutionalreform of the Supreme Court since 1982. First, there exists someconfusion as to the Court's current constitutional status, asituation best illustrated by the 1991 federal government proposal.Second, and more important for our purposes here, is the fact that,with the exception of developing procedures for aboriginal input,the governments of the federation clearly have concluded that thereforms set out in the Meech Lake Accord, measures aimed solely atresponding to traditional federalism concerns, are all that isrequired in terms of Supreme Court reform.30 Canada, Privy Council, Federal-Provincial RelationsOffice, Consensus Report on the Constitution, Charlottetown,August, 1992, s.20. This political accord will be discussedin greater detail in Chapter Three.31 Canada, Privy Council, Federal-Provincial RelationsOffice, Charlottetown Accord, Draft Legal Text, October,1992, s.15.21The Duality and Regionalism DimensionsClosely related to, and at times indistinguishable from thesefederalism concerns, are questions of duality and regionalrepresentation on the Supreme Court. Throughout the Court'shistory, Quebec has demanded that its composition be responsive toQuebec's distinctive culture, particularly its civil law system,while other provinces have insisted upon representation on theCourt to ensure that their own unique interests are protected.Historically, Quebec's attitude toward the Court has differedmarkedly from that of the other provinces, largely because of itscivil law system. During the Confederation Debates, a number oflegislators from Lower Canada argued that the Supreme Court shouldhave no jurisdiction in provincial matters because it would beinappropriate for the Court, a majority of whose members would betrained in the common law, to overrule the decisions of judges inthe province of Quebec. Peter Russell notes, however, that thisopposition was not merely the result of the desire to protect thepurity of the civil law and ensure that it was accuratelyinterpreted, but rather because Quebec viewed it as an integralpart of its distinct culture which therefore merited protection. 32During debate on the Supreme Court Act in 1875, Quebec Membersof Parliament raised similar concerns. In fact, even Quebecsupporters of the Bill proposed amendments that would haveprecluded private law appeals from Quebec if two courts in that32 Russell, The Supreme Court of Canada as a Bilingual andBicultural Institution, 8.22province had ruled unanimously or that if the common law judgesoutvoted Quebec judges in a civil law case before the SupremeCourt, the Quebec court's ruling would stand. Some went evenfurther, proposing that the Court should have no appellatejurisdiction whatsoever in provincial matters. In the end, anamendment guaranteeing that two members of the Court be appointedfrom the province of Quebec did succeed. When the Court wasincreased in size from seven to nine judges in 1949 (a seventhmember had been added to the original six in 1927), Quebec'sstatutory guarantee of representation was raised to three.33Clearly, assurances of Quebec representation on the Courtreflects, at least to some extent, a dualist view of the Court.However, over the years there have been demands that its dualistnature be strengthened. In a 1965 Canadian Bar Review article,Jacques Yvan-Morin argues that the interpretation of the civil lawby judges trained in the common law has led to precepts of thelatter being imposed on the former. He thus advocates the creationof separate civil and common law chambers of the Court.34Morin goes further, however, asserting that the constitutionitself should be interpreted by a dualist court because " thefuture constitution of this country will have to make plans for theFrench Canadian legal and political philosophy, both in itsfundamentals and in its forms." He thus recommends that33 This guarantee is of some import. The Court requires aquorum of five. Thus, it is possible in a civil law appealto ensure that a majority of judges on the panel will befrom Quebec.34 Jacques Yvan-Morin, "A Constitutional Court for Canada,"Canadian Bar Review 43 (1965), 549.23constitutional cases should be decided by an equal number of civiland common law judges, perhaps drawn from the suggested separatecivil and common law chambers.'The Quebec Liberal Party's 1980 constitutional reform proposal,A New Canadian Federation, more commonly known as the Beige Paper,similarly recommends that the dualist nature of the Supreme Courtbe enhanced, although it offers a rationale different from Morin's.It posits that because the Court serves as the final arbiter of thedivision of powers, "Quebec, a minority province, but the principalhome of French Canadians, must be able to protect its vitalinterests when such disputes are before the Court."' Thus, itproposes that whenever a constitutional case comes before theCourt, the federal government, any provincial government orindividual be permitted to request that a dualist bench consistingof the Chief Justice and an equal number of judges from Quebec andfrom the other provinces be convened to hear the case.'Once again, we see a rather strange vision of the role ofjudges on the Supreme Court. Just as the Government of Albertaimplied that judges were to bring to the fore the views of thegovernment by whom they were appointed, the Quebec Liberal Partysuggests that a dualist bench in constitutional cases is requiredso that judges from that province may protect the broadly-defined35 Ibid. Morin later suggests that a separateconstitutional court should be created. It could be eithera separate chamber of the Supreme Court or given anindependent status. Of course, it too would have a dualistconfiguration (59-60).36 The Constitutional Committee of the Quebec Liberal Party,A New Canadian Federation (Quebec: 1980) 59.37 Ibid.24interests of French Canadians.Following the abolition of appeals to the Privy Council in1949, the province of Quebec began to articulate the now familiarcriticism that it is a violation of classical federalism for thebody that acts as final arbiter of the federal division of powersto be appointed solely by the federal government. The Report ofthe Royal Commission of Inquiry on Constitutional Problems (theTremblay Report) forcefully articulated this view, arguing that[i]n a federal system, theory and common sense demand that atribunal completely independent of the parties to the suitshall decide, in final resort, quarrels concerning thedivision of powers. And if this requirement proves eithertoo difficult to meet or contrary to nationalsusceptibilities, at least appointments to the Supreme Courtmust not be the exclusive appanage of one of the two ordersof government.38With some modification, Quebec Premier Jean Lesage advanced asimilar classical federalism argument in 1960:[t]he fundamental principle of the federal system requiresthat neither one nor the other of the two levels ofgovernment may interfere with the distribution of powersestablished by the Constitution. It follows that thearbitrator of conflicts in this matter must not beexclusively dependent on either of them.39As noted earlier, Quebec critics originally eschewed the classicalfederalism argument. However, its adoption by later Quebecgovernments seems particulary fitting since these same governmentswere strongly promoting a return to the "watertight compartments"conception of the federal division of powers.Given the fact the province of Quebec was the first to express38 David Kwanvick, ed,. The Tremblay Report: Report of theRoyal Commission of Inquiry on Constitutional Problems(Toronto:McClelland and Stewart Ltd., 1973), 85.39 Cited in Government of British Columbia, 10.25distrust of a completely federally-appointed Supreme Court, it isperhaps not surprising that once in office the Parti Quebecoiscommissioned a detailed study of the Supreme Court's division ofpowers rulings since 1949. Gilbert L'Ecuyer, who conducted thestudy, reaches conclusions similar to those of the analysesmentioned earlier. He notes that while Supreme Court decisions mayhave been more favourable toward the federal government than thoseof the Privy Council, for the most part the Court's decisions weretrue to the federal division of powers set out in the British NorthAmerica Act." L'Ecuyer stresses the fact thatles decisions de la Cour Supreme auront generalementtendance a etre favorables au gouvernement federal tant etaussi longtemps que le tribunal devra interpreter un textequi prete essentiellement, par son libelle et l'intention deses auteurs, a un vision centralisatrice.41Thus, the Court's decisions could best be described as theconsequence of a centralist-oriented constitutional division ofpowers.In the next section, the federalism implications of Charter ofRights litigation will be discussed. However, special mention ofthe Charter's impact in Quebec is worthwhile. No province has hada higher percentage and number of statutes nullified by the SupremeCourt on Charter grounds. In the course of the Court's first onehundred Charter decisions, five Quebec laws were invalidated andthe Quebec Court of Appeal saw more of its Charter decisions (63%)40 Gilbert L'cuyer, La Cour Supreme du Canada et lesPortages des Competences: 1949-1978 (Québec: Gouvernement duQuébec, Ministere des affaires intergouvernementales, 1978),380,387.41 Ibid., 393.26overruled than did any other provincial appellate Court.42 Moreimportantly, four of the five nullified statutes dealt with mattersof language and education.43 Thus, the Court's Charter rulingshave struck at the heart of Quebec's attempts to protect its uniquelanguage and culture.Interestingly, prior to the Supreme Court's ruling on theconstitutionality of Quebec's commercial sign law, Quebec politicalscientist Guy Laforest argued that in this case the "Supreme Courtshould...respect the decision which comes from the elected,democratic process in Quebec. vi 44 Thus, just as Quebec critics ofthe Court's current status and composition eventually adaptedtraditional arguments of classical federalism, nationalists in thatprovince now appeal to historic charges that such judicial reviewruns counter to democracy as a means of explaining why Quebec'sattempts to protect its linguistic and cultural collectivity shouldnot be interfered with on Charter grounds.Given the Charter's potential for thwarting collectivistattempts at cultural protection (a potential which clearly has beenrealized) it could be expected that Quebec's interest in theSupreme Court would only increase. Quebec's demand for input into42 F.L. Morton et a/., "The Supreme Court's First OneHundred Charter of Rights Decisions," (Calgary: Universityof Calgary Institute for Socio-legal Studies, 1990), 9, 17.The authors hypothesize that this high reversal rate may bea result of the differing approaches taken by civil andcommon law judges when interpreting legal texts.43 Ibid., 17.44 Guy Laforest, "The Meaning and Centrality ofRecognition," in Roger Gibbins et al., Meech Lake andCanada: Perspectives from the West (Edmonton: AcademicPrinting and Publishing, 1988), 84.27the appointment process as one of its minimum conditions for re-entering the constitutional fold appears to reflect this fact.However, some Quebecers assert that the appointment mechanism setout in the Meech Lake Accord would on balance be harmful to thatprovince's autonomy. On the basis of an examination of otherfederations, Andre Bzdera argues that provincial input into theappointment process, rather than giving the provinces a voice inthe Court's direction, serves only to enhance its legitimacy andfurther centralize judicial power:nous sommes amenes a conclure que la nouvelle legitimitepolitique de la Cour supreme protegera cette derniere descritiques politiques venant des gouvernements provinciaux etlui permettra de fonder une jurisprudence nouvelle etpotentiellement centralisatrice dans ces grandes lignes."Bzdera thus argues that the Meech Lake appointment process, farfrom being a gain for the province of Quebec, is, in fact, anunwitting concession."In 1991, the Report of the Constitutional Committee of theQuebec Liberal Party released its Report, A Quebec Free to Choose(or the Allaire Report as it is more popularly known) anuncompromising document which calls for a wholesale rewriting ofthe Canadian Constitution.47 With the exceptions of defense, thenational debt, customs and equalization payments, all powers wouldbe transferred to Quebec (and other provinces who wished to take45 Andre Bzdera, "L'Accord du lac Meech et le Nouveau Modede Selection des Juges de la Cour Supreme du Canada: uneReforme Chimerique?' Revue Canadienne de Droit et Societe4 (1989), 4.46 ibid., 22,23.47 Quebec Liberal Party, Constitutional Committee, AQuebec Free to Choose: Report of the ConstitutionalCommittee of the Quebec Liberal Party (The Party: 1991).28part) or shared jointly by the provincial government and a vastlyreduced federal authority.The Report reintroduces the notion of a judicial division ofpowers. It calls for the creation of a new tribunal to oversee thedivision of legislative powers and enforce the laws of the centralgovernment, while decisions from Quebec courts no longer would beappealable to the Supreme Court of Canada." Although this Reportbecame the official position of the Liberal Party, theCharlottetown Accord, to which the province of Quebec was asignatory, would not have affected the Court's jurisdiction in anyway.For a number of reasons, it would be dangerous to overlyemphasize the Allaire Report's importance in terms of Quebec's viewof the Court. First, the Liberal Government was wiling to foregomany of its provisions in later constitutional negotiations.Furthermore, the Report's recommendations about a new tribunal areso intimately linked to its broader reform agenda that it isdifficult to isolate a specific conception of the existing SupremeCourt. What is worth noting, however, is that the notion of ajudicial division of powers to mirror a present or future divisionof legislative responsibilities, continues to claim some support.Soon after the amendment guaranteeing two Quebec seats on theCourt was moved, a British Columbia Member of Parliament broughtforward an amendment which would have guaranteed his province apermanent seat on the Court. Although it was defeated, the48 Ibid., 41-42.29question of regional representation has remained central to thedebate surrounding the Supreme Court.Regional representation on the Court is not statutorilyguaranteed, but a convention to that effect has evolved. Since1949, when the number of judges was increased to nine, a practicehas developed whereby in addition to the three seats guaranteed toQuebec, three judges will come from Ontario, two from the West andone from the Maritimes or Atlantic Canada.Regional quotas of this sort have been criticized on thegrounds that to appoint someone on the basis of region of residenceis to improperly link him or her to this area in some respect andthereby diminish judicial independence and impartiality. Inresponse, defenders of regional quotas stress that thisinterpretation misunderstands the purposes of regionalrepresentation on the Court. William Lederman succinctly puts thecase for such quotas:If we ensure that the judges are drawn from the variousregions...we ensure that there is available within the Courtcollective experience and background knowledge of all partsof Canada....[T]o observe the quotas for this reason doesnot turn the Court into an arbitral body of special pleadersor a miniature national Parliament. The professionalqualifications of the judges and their independence on thebasis of secure tenure for life (or until age 75) means thatthey will behave judicially, and not as special pleaders ordelegates....49As we shall see in the following chapter, those demanding a moresocially representative Court offer similar arguments in support oftheir cause.Peter Russell argues that specific regional expertise among the49 W.R. Lederman, "Thoughts on Reform of the Supreme Courtof Canada," Alberta Law Review 8 (1970), 12.30common law judges is of only minimal importance, especially sincethe Supreme Court increasingly is concentrating on matters offederal and constitutional law. What regional perspectives, heasks, would have to be brought to the fore in cases relating tosuch things as the federal administrative process, the criminal lawand Charter of Rights litigation?'° He concedes, however, that thepractice must continue if only to ensure the allegiance of regionalelites to the Court.51Nevertheless, both levels of government appear to accept theview that such quotas are valuable.52 Thus, reform proposals ofthe 1970s by and large recommend that guarantees of regionalrepresentation on the Court be entrenched in the Constitution. TheBritish Columbia proposal, for example, suggests that the Court beincreased from nine to eleven members and that each of the fiveregions (Ontario, Quebec, the West, the Atlantic Provinces andBritish Columbia) be constitutionally assured of at least one seaton the Court. There is an admission in the proposal that theincreased size is required not in response to a burgeoningcaseload, but rather because the statutory provision assuring threeappointments for Quebec, combined with the convention of ensuring50 Peter H. Russell, The Judiciary in Canada: The ThirdBranch of Government, 168-69 ; Peter H. Russell,"Constitutional Reform of the Judicial Branch: Symbolic vs.Operational Considerations," Canadian Journal of PoliticalScience 17 (1984), 237-38.51 Russell, The judiciary in Canada, 169.52 The Canadian Bar Association also supports guaranteedregional representation. See Canadian Bar Association,Report of the Canadian Bar Association Committee on theAppointment of Judges in Canada (Ottawa: Canadian BarFoundation, 1985), 65.31three from Ontario, results in the under-representation of thethree remaining regions. 53 This plan, which abandons thetraditional four region view of Canada in favour of designatingBritish Columbia as a region unto itself and thereby guaranteeingit at least one seat on the Court at all times, is indicative ofthe tendency during the period for those proposing reform toadvocate changes which promoted their own interests. 54The 1978 federal government proposal similarly recommends anincrease in the size of the Court from nine to eleven members. Itdiffers from the British Columbia proposal, however, in itssuggestion that a provision guaranteeing four members be appointedfrom the Bar of Quebec be entrenched in the Constitution. 55 Bycontrast, the British Columbia proposal, while promoting entrenchedregional quotas, neither makes specific reference to Quebec, norsuggests that Quebec representation would necessarily have to beincreased from three to four members if the Court itself wereenlarged. This attitude is even more evident in the Alberta plan,which says that provinces should receive representation in the poolof constitutional judges on the basis of provincial population.Thus, neither proposal concedes that Quebec should be given anyspecial consideration, despite its unique civil law system.The importance attached to regional representation wasparticularly evident in 1989, when Mr. Justice McIntyre fromBritish Columbia retired from the Court. The Governments of53 Government of British Columbia, 14-18.54 Cairns, "Who Should the Judges Be?" 18.55 Lang, Constitutional Reform, 5-6.32British Columbia and Saskatchewan engaged in an at times publicdispute over which province should be awarded the vacant position.In keeping with its ongoing demand for a permanent seat on theCourt, British Columbia argued that Justice McIntyre should bereplaced by a member of that provinces's Bar. The Government ofSaskatchewan charged that the province had not been represented onthe Court since the retirement of Mr. Justice Hall in 1973. Itclaimed that the tradition of rotating appointments among thewestern provinces should be continued and consequently the newappointee should come from Saskatchewan. At one point, the DeputyAttorney General of that province argued that the rotation patternis important because it gives smaller provinces "equality of accessto central Canadian institutions."56 This comment is highlyrevealing. It suggests a belief that regional representation notonly ensures knowledge of all parts of the country, but alsoprotects the interests of smaller provinces which might otherwisebe under-represented in central institutions.The Ongoing Salience of Federalism Under the CharterAs will be seen in Chapter 3, the entrenchment of the Charterof Rights and Freedoms has led many to believe that itsinterpretation is the Court's most significant task and that thisshould be reflected in both the appointment process and the56 Toronto Star, March 20, 1989. A similar dispute tookplace in June of 1992 when Mr. Justice Stevenson fromAlberta retired from the Court due to health reasons.Alberta argued that Justice Stevenson's short tenure couldnot fairly count as its "turn." Saskatchewan, which lostout in 1989, invoked its earlier argument. Eventually, Mr.Justice Major from Alberta received the appointment.33composition of the Court. This view fails to recognize that notonly has the advent of the Charter not removed traditionalfederalism concerns, but also has in fact heightened them,resulting in continuing provincial concerns about Supreme Courtappointments.It must be remembered that although the Court is now calledupon to deliver rulings regarding citizens rights vis a vis thestate, this does not entail the conclusion that the Court's role asarbiter of the federal system has disappeared. This fact wasrecognized by Peter Hogg prior to the Charter's entrenchment. Henoted that the forces which have driven federal-provincial conflictin the past and the ready availability of judicial review offederal matters would not abate merely because of its presence.57In a recent article, Katharine Swinton argues persuasively thatthe Supreme Court will continue to play an important role inmatters of federalism. She notes, for example, that the Court willhave to respond to novel division of powers cases, specificallythose which result from the provinces' ability to frustrateinternational obligations that the central government may wish toassume. In addition, it eventually will have to rule inimportant cases relating to the enforceability of intergovernmental57 Peter W. Hogg, "Judicial Review on Federal Grounds:Canada Compared to the United States," in Gerald A.Beaudoin, ed., The Supreme Court of Canada: Proceedings ofthe October Conference (Cowansville: Editions Y. Blais,(1986).58 Katherine E. Swinton, "Federalism Under Fire: The Role ofthe Supreme Court of Canada," Law and Contemporary Problems55 (1992).34agreements.59 Thus, though the Court's decisions on Charter issueslikely will attract the most public attention, it will continue tohave an important and even expanding role in policing the federaldivision of powers."Second, just as the jurisdiction of the Supreme Court includesboth federal and provincial law, so too is the legislation of bothlevels of governments subject to the Court's judicial review onCharter grounds. A few years after the Charter's entrenchment,Rainer Knopff and F.L. Morton argued that because of their greaterhomogeneity, the provinces would be more likely to enactlegislation restricting the liberties of minorities than would thefederal government.61 A statistical analysis of the Court's firstone hundred Charter decisions found that of the twenty-four federalstatutes challenged, 33% were nullified, while 43% of the twenty-five impugned provincial statutes were invalidated." While astudy of the individual statutes and the Court's actual decisionswould be required to determine whether or not Knopff and Mortonwere correct in their suppositions as to why provincial statuteswould be more vulnerable to Charter review, it is clear that in59 Ibid., 140.60 In fact, statistical analysis of its decisions has shownthat if the Court hears a case which raises both federalismand Charter issues, it prefers to base its decision on theformer. See Morton et a/., "The Supreme Court's First OneHundred Charter of Rights Decisions," 3.61 Rainer Knopff and F.L. Morton, "Nation-Building and theCanadian Charter of Rights and Freedoms," in Alan C. Cairnsand Cynthia Williams, eds., Constitutionalism, Citizenshipand Society in Canada (Toronto: University of TorontoPress, 1985).62 Morton et al., "The Supreme Court's First One HundredCharter of Rights Decisions," 14.35terms of both the number of statutes nullified and the percentageof "losses," the provinces have indeed fared worse than the federalgovernment.Related to this second point is the fact that so-called Chartercases may have implications for federalism in the sense that suchmatters may be "rife with implications for provincial autonomy andregional diversity." A number of scholars have noted that theCharter has the potential to be an instrument of centralization inthat it creates national standards where regional diversity onceexisted." Thus, the provinces likely would be disposed toward theappointment of judges who support a more limited application of theCharter by the courts, thereby allowing for greater legislativediscretion and diversity based upon differing situations faced byindividual provinces. 65 It is thus clear that there can be no"jurisprudential watertight compartments": issues of federalism andthe Charter cannot always be separated and as a result theprovinces will continue to demand a role in the appointmentprocess.63 Keith G. Banting, "Federalism and the Supreme Court ofCanada: The Competing Bases of Legitimation," in Ontario LawReform Commission, Appointing Judges: Philosophy, Politicsand Practice (Toronto: Ontario Law Reform Commission, 1991),3264 Peter W. Hogg, "Federalism Fights the Charter of Rights,"in David P. Shugarman and Reg Whitaker, eds., Federalism andPolitical Community: Essays In Honour of Donald Smiley(Peterborough: Broadview Press, 1989), 249 ; F.L. Morton,"The Political Impact of the Canadian Charter of Rights andFreedoms," Canadian Journal of Political Science 20 (1987).65 Katherine E. Swinton, "Competing Visions ofConstitutionalism: Of Federalism and Rights," in KatherineE. Swinton and Carol.J. Rogerson, eds., CompetingConstitutional Visions: The Meech Lake Accord (Toronto:Carswell, 1988), 292.36Chapter Three - The Social Representativeness and OpennessDimensionThe Impact of the Charter of Rights and FreedomsThe Charter of Rights and Freedoms has had a profound effectupon the Canadian political, legal and social landscapes. Anexample of its multivariate impact was offered in the precedingchapter, where the federalism implications of an entrenched rightsdocument binding upon both levels of government were discussed.However, perhaps the Charter's most obvious expressly politicalimpact is its contribution to the erosion of parliamentarysupremacy, already fettered in Canada owing to the division oflegislative responsibilities, and the resultant transfer of powerto the judicial branch. The courts now have the ability to reviewand then nullify any legislation which in their view violates theprovisions of the Charter."Although this is an extraordinarily important development, itlies outside the more modest scope of this thesis. Furthermore, anextensive body of scholarship outlining the political consequencesof the Charter for legislatures and courts already exists. What ismore germane to our discussion is the Charter's specific impact onthe debate surrounding the Supreme Court appointment process andthe composition of the Court itself.66 This power is of course tempered by the fact that theSection 33 "notwithstanding clause" allows a legislature topass legislation despite the fact that it violates aCharter right or rights. However, this legislative overrideprovision is limited to statutes affecting sections 2and 7 through 15 only.37The Charter's presence has had two inter-related consequencesfor this debate. First, by singling out a variety of socialcategories relating to race, ethnicity and gender, it has creatednovel concerns about the specific composition of the Court.Second, the new status and power which the Court has derived fromthe Charter has led to demands for a reformed appointment processwhich better reflects this expanded role.Social Representativeness and the CourtIf we are to understand the Charter's effect on the debate overthe composition of the Supreme Court, we must first recognize itsprofound effect on the nation's constitutional culture. Over thepast several years, Alan Cairns has endeavoured to identify theCharter's impact on constitutional consciousness (or self-consciousness), the ways in which individuals and groups relate totheir constitution and how they view their place within theconstitutional order. He argues that the presence of the Charterhas transformed this order and has created a new "citizensconstitution:"[t]he Charter brought new groups into the constitutionalorder....It bypassed governments and spoke directly toCanadians by defining them as bearers of rights, as well asby according specific constitutional recognition to women,aboriginals, official language minority populations, ethnicgroups through the vehicle of multiculturalism and to thosesocial categories explicitly listed in the equality rightssection of the Charter. The Charter thus reduced therelative status of governments and strengthened that ofcitizens who received constitutional encouragement to thinkof themselves as constitutional actors.'67 Alan C. Cairns, "Citizens (Outsiders) and Governments(Insiders) in Constitution-Making: The Case of Meech Lake,"in Douglas E. Williams, ed., Disruptions: Constitutional38As a result, the citizenry now has "a stake and a status in theconstitutional order"" and the constitution itself "has become asocial document of great symbolic value, the supreme instrument ofsocial recognition and its denial.""The emergence of constitutional self-consciousness is mostprevalent among those groups explicitly mentioned in the Charter'svarious provisions. These specific allusions lead them to seethemselves constitutionally in these terms and thus they arestrongly concerned with the manner in which "their" clause isviewed and developed. The constitution will have a much higherprofile within their daily lives than for the citizenry ingeneral." Such groups are distrustful of the ability orinclination of others to protect their interests.They are suspicious of theories and practices ofrepresentation that imply or assert that representatives canbe trusted to speak for citizens/constituents when they lackthe defining characteristics of the latter. Their distrustis not confined to legislatures, but extends to allinstitutions that have a representative component, includingcourts.^71Thus, members of such groups argue that the judicial body which ischarged with interpreting their rights should include members drawnStruggles from the Charter to Meech Lake (Toronto:McClelland and Stewart Inc., 1991), 109.68 Ibid., 117.69 Ibid., 118.70 Alan C. Cairns, "Constitutional Minoritarianism inCanada," in Ronald Watts and Douglas Brown, eds., Canada:The State of the Federation, 1990 (Kingston: Institute ofIntergovernmental Relations, Queens University, 1990),72-73.71 Ibid., 84.39from among their numbers.72A. Gender and the Supreme CourtThe most fully developed and articulated case for a moresocially representative judiciary in general and Supreme Court inparticular has come from women. This is not surprising, given theincreasing volume of feminist legal scholarship and its impact onthe legal community. Within such study, the examination of thejudiciary's composition fits into a much larger analysis of therelationship between women and the law.At its most fundamental level, the feminist critique of thelegal and judicial process is premised on the belief that both arereplete with gender bias. Norma Wikler, a sociologist specializingin the identification and remedying of judicial gender bias, hasdefined that term as "attitudes and behaviour based on sexstereotypes, the perceived relative worth of women and men andmyths and misconceptions about the economic and social realitiesencountered by both sexes."7' Critics argue that the existingjudiciary, which consists largely of white males, has displayedboth in its behaviour and its development of the law that it oftenis guilty of such bias.74 Feminists submit that it makes a great72 Cairns, "Who Should the Judges Be?' 72-73.73 Norma J. Wikler, "Identifying and Correcting JudicialGender Bias," in Sheilah L. Martin and Kathleen E. Mahoneyeds., Equality and Judicial Neutrality (Calgary: Carswell,1987), 12.74 For a comprehensive study of gender bias in the Canadianjudiciary, see Martin and Mahoney.40deal of difference whether the judge in a given case is a man or awoman and that it is a functional impossibility to be "neutral" inthis regard.' In recognition of this perception, a number ofprograms have been instituted at both the federal and provinciallevels to educate sitting judges about the nature and effects ofgender bias.However, concerns about gender bias are not based solely on thefear that individual judges in specific cases will render judgmentswhich are in part the result of such bias. Rather, it is arguedthat gender bias is embedded within existing legal principles; thelaw has developed in ways biassed toward women, not necessarily outof conscious attempts to discriminate against them, "but ratheras.. .the result of the exclusion or near exclusion of women fromthe formation of legal principles."76 In a 1990 address to theOsgoode Hall Law School at York University, Madame Justice BerthaWilson of the Supreme Court of Canada (now retired) expanded onthis point:[i]n some...areas of the law...a distinctly maleperspective is clearly discernible. It has resulted inlegal principles that are not fundamentally sound and thatshould be revisited when the opportunity presents itself....Some aspects of the criminal law in particular cry out forchange; they are based on presuppositions about the natureof women and women's sexuality that, in this day and age,75 See, for example, Judith Resnik, "On the Bias: FeministReconsiderations of the Aspirations for our Judges,Southern California Law Review 61 (1988) and RosalieSilberman Abella, "The Dynamic Nature of Equality," inMartin and Mahoney.76 Donna Martinson, "Lavalee v. R. - The Supreme Court ofCanada Addresses Gender Bias in the Courts," University ofBritish Columbia Law Review 24 (1990), 381, n.6.41are little short of ludicrous.'Although Justice Wilson singles out the criminal law, Canadianfeminist legal scholars claim to have identified such biasses in anumber of substantive areas of law.'Although calls for more women judges are premised in part onthese perceptions of the judicial process, the Charter plays asignificant role in the debate as well. As noted previously, itsenumeration of various social categories conditions, to someextent, demands for a more socially representative Court. Forexample, in an article advocating the appointment of more womenjudges, Isabel Grant and Lynn Smith argue that sections 15 and 28of the Charter" illustrate "that equality for women has become asocial goal of high priority....Rather than lagging behind, thejudicial branch could serve as a model for other branches of77 Madame Justice Bertha Wilson, "Will Women Judges ReallyMake a Difference?" Osgoode Hell Law Journal 28 (1990), 515.78 In a 1986 survey article, Susan Boyd and Elizabeth Sheehyprovide a useful summary of Canadian feminist analyses ofsuch areas as employment, family and labour law. Theycaution, however, that such studies, while useful, oftenlead to an avoidance of broader theoretical approaches andframeworks. See Susan B. Boyd and Elizabeth Sheehy,"Canadian Feminist Perspectives on Law," Journal of Law andSociety 13 (1986).79 Section 15 (1) reads:Every individual is equal before and under the law andhas the right to the equal protection and equalbenefit of the law without discrimination and, inparticular, without discrimination based on race,national or ethnic origin, colour, religion, sex, ageor mental or physical disability.Section 28 reads:Notwithstanding anything in this Charter, the rightsand freedoms referred to in it are guaranteed equallyto male and female persons.42government and for society as a whole."" Lorraine Weinrib echoesthis sentiment, positing that the personal characteristics ofjudges should rightfully be taken into consideration when makingSupreme Court appointments. "While these considerations arepolitical, they are not partisan, and they provide beneficialegalitarian symbolism for the profession and the public atlarge." 81 She concludes that the inclusion of these criteria isappropriate because "choos[ing] judges to make up the court offinal resort on Charter issues must reflect the Charter'segalitarian values.""Although the new and expanded role of the courts under theCharter most often is appealed to in conjunction with demands fora more open and pluralistic appointment process, it also isintegral to the case of those promoting more sociallyrepresentative courts. This attitude is reflected in the SupremeCourt reform proposal put forward by A. Wayne Mackay and RichardBauman, who argue that[w]ith the growing and changing role of judges under theCharter, it has become even more important that judicialappointments be made on the basis of merit. It is alsoimportant to have a diversity of backgrounds represented inCanada's highest Court - not just in the sense of regionalorigin but also with respect to gender, race, socio-economic80 Isabel Grant and Lynn Smith, "Gender Representation inthe Canadian Judiciary," in Ontario Law Reform Commission,Appointing Judges: Philosophy, Politics and Practice(Toronto: Ontario Law Reform Commission, 1991), 90.81 Lorraine Eisenstat Weinrib, "Appointing Judges to theSupreme Court of Canada in the Charter Era," in Ontario LawReform Commission, Appointing Judges: Philosophy, Politicsand Practice (Toronto: Ontario Law Reform Commission,1991), 139.82 Ibid.43status and other factors.'Grant and Smith concur, and suggest that it may be a good idea toundertake a comprehensive review of the qualificationsnecessary for judicial office with a view to determining theextent to which these qualifications have served to excludewomen and other minorities from the bench in Canada.Particularly in light of the Canadian Charter of Rights andFreedoms, we need to assess what qualities are mostimportant for judicial office."Obviously, demands for increased gender representation on the benchwould have developed regardless of the Charter's entrenchment. Forexample, the absence of a gender equality clause in theConstitution of the United States has not precluded the developmentof a lively debate in that country regarding the need for morewomen judges.' Nonetheless, the Charter plays a pivotal role inthe debate and those promoting a more socially representative benchclearly feel its existence lends additional credence to their case.Before systematically examining the arguments in support of amore gender balanced Supreme Court, an important point must bemade. Thus far, the issues of gender representation on the SupremeCourt and courts in general have been discussed interchangeably.This has been done in part out of necessity. While commentatorssuch as Weinrib, MacKay and Bauman examine the Charter'simplications for Supreme Court appointments specifically, others,such as Grant and Smith, speak of appointment reform in general.Inasmuch as the latter's views will be discussed in detail, it is83 MacKay and Bauman, 96.84 Grant and Smith, 90.85 See, for example, Southern California Law Review 61(1988) and Journal of Law and Inequality 4 (1986). Bothissues are devoted specifically to this topic.44necessary to explain why arguments for increased genderrepresentation in general can properly be applied to the SupremeCourt specifically.First, as will become evident, the rationale behind thesearguments are not logically dependent upon the level of courtinvolved. Granted, on the basis of sheer numbers the Supreme Courtnever can be as representative as the judiciary as a whole.However, that fact in and of itself does not invalidate sucharguments. Second, and more importantly, those advocating suchreforms do not base their claims solely on the need to combatgender bias. They insist that reform can improve the judicialprocess and the development of the law in general, whileheightening public confidence in the legitimacy of the justicesystem itself. Surely, if such changes can accomplish theseimprovements, it is vital that the representativeness principle beapplied to the judicial body which has the final say in a multitudeof significant legal and constitutional matters.In our discussion of the case for increased genderrepresentation on the Supreme Court, we shall concentrate upon thearguments advanced in the article by Grant and Smith entitled"Gender Representation in the Canadian Judiciary." This particulararticle has been selected for three reasons. First, it is the mostcomprehensive and detailed scholarly treatment of this subject inCanada and includes virtually all the points usually put forward byadvocates of such reform. Second, and relatedly, by focusing on theargumentation in this single paper the major facets of the debatecan be analyzed in a concise and logical manner. Finally, it is asensible choice in that it apparently has become the standard45reference article on the topic." Grant and Smith suggest thatfour benefits can be derived from increasing gender representationon the bench, each of which, they conclude, would be accompanied byan improvement in the justice system as a whole and/or the judicialprocess.'i. Women deserve a place in a system to which they are boundThe authors argue that inasmuch as judges often are called uponto virtually make law in an unrestrained manner, it is appropriateto compare them to legislatures. Through the franchise and theright to seek and hold public office, women are entitled toparticipate in the legislative process. By contrast, "therecurrently is no entitlement, either through legislation, conventionor practice, for women to participate in the judicial process.There is no formal constraint on those who make judicialappointments to prevent them from appointing only men.""This argument is premised on a fallacy stemming from Grant andSmith's apparent confusion of legal rights and guarantees. Womenindeed have the legal right to vote in elections and hold publicoffice, just as they also have the legal right to become lawyersand to be appointed to judicial office. However, they are no moreguaranteed a presence in the House of Commons or provincial86 See, for example, Errol P. Mendes, "PromotingHeterogeneity of the Judicial Mind," in Ontario Law ReformCommission, Appointing judges: Philosophy, Politics andPractice (Toronto: Ontario Law Reform Commission, 1991) andChristine Boyle, "The Role of the Judiciary in the Work ofMadame Justice Wilson," Dalhousie Law journal 15 (1992).87 Grant and Smith, 63.88 Ibid., 64.46legislatures than they are on the bench.The other noteworthy feature of this first claim is theimplication that judges frequently act, in effect, as mini-legislatures. While the question of what judges actually do isextremely important, it can best be dealt with in Chapter Four,which examines the issue of jurisprudential theory and itsrelevance to the question of Supreme Court reform.ii. It would increase public confidence in the judicial systemGrant and Smith assert that better gender balanced, andtherefore more socially representative courts, would be more inkeeping with democratic norms and thus promote increased publicconfidence in the judicial system." The authors' claim that thisheightened public confidence would derive from the democraticelement which they assert is conjoined with socialrepresentativeness in general and gender balance specifically, isintriguing. Although the term, democracy, defies precise,singular definition, a couple of points can be made. First,democracy generally is thought of in procedural terms, the mannerin which political power is obtained and the way it is exercised.This idea received its classic formulation in Joseph Schumpeter'sCapitalism, Socialism and Democracy. He argues that democracy "isa political method, that is to say, a certain type of institutionalarrangement for arriving at political - legislative andadministrative - decisions."" For Schumpeter, the democratic89 Ibid.90 J.A Schumpeter, Capitalism, Socialism and Democracy(London: Geo, Allen and Unwin, 1943), 242.47method could be described as the "institutional arrangement forarriving at political decisions in which individuals acquire thepower to decide by means of a competitive struggle for the peoples'vote. ,,91Grant and Smith describe democratic norms in a manner at oddswith these traditional views. Granted, the concept of anindependent judiciary could be said to be vital to the democraticethos inasmuch as ensuring the rule of law is vital to a democracy.What seems odd is their description of the requisite factors for ajudiciary which can be said to be in keeping with democraticvalues. They suggest that democracy is a matter not only of howpeople derive positions of authority in the state, but also thepersonal characteristics of those who attain such office.Furthermore, they argue that mere independence of the judiciarydoes not satisfy the requirements of democracy, but rather that itmust also be representative in the sense which we have beendiscussing. These matters will be examined in greater detail inChapter Four, which discusses the relationship between the role ofthe judiciary and the concept of representation.Although we may be troubled by the authors' somewhat vagueappeal to democracy, on another level their point is well taken.Canadian law schools are graduating an increasing number of women.If, in the years ahead, women fail to be represented on the benchon a level commensurate to their representation at the bar,questions will rightfully be raised about the fairness of theappointment process. Perceptions that women are discriminated91 Ibid., 269.48against when appointments are made clearly would have thedeleterious effect of undermining confidence in the legitimacy ofthe justice systemiii. Women judges could serve as role modelsThe increased presence of women on the bench, it is argued,would set an example within both the legal community and othersectors of society in which women traditionally have beendisadvantaged. A more gender representative judiciary could sendan important message about the role of women in our society. 92This claim is premised on the belief that the courts are notmerely bodies which adjudicate legal disputes. Rather, thejudiciary is to play the broader role of sending a message tosociety through its composition. Thus, just as the Charter is saidto have both a practical aspect, in so far as it provides citizenswith the opportunity to make justiciable claims for equal treatmentfrom the state, as well a symbolic significance, in that itillustrates society's commitment to equality, the judiciary is toexecute the practical task of adjudication while performing thesymbolic function of exemplifying and promoting gender equality.This argument exemplifies the entanglement of social movementgoals and the development of a theory of the judicial role withinthe current debate. While the development of role models clearlyis a laudable goal, it is difficult to comprehend how this wouldserve to improve the judicial process or even add to the legitimacyof the justice system.92 Grant and Smith, 65.49iv. Women could make a unique and valuable contribution to theadjudicative processClearly, this is the most important element in the argument.Rather than describing how the presence of more women on the benchwould improve the justice system by enhancing its legitimacy, thislast argument suggests that such reform would actually improve thejudicial process, the manner in which actual cases are handled.Women, it is asserted, have a different set of life experiencesthan men, including those of being discriminated against on thebasis of gender. Owing to the fact that life experience shapesone's perspective - the view one adopts of the world, assumptionsabout others and one's approach to decision-making - by increasingthe number of women judges, a new and important set of perspectivescan be brought to the bench, thereby improving the judiciary as awhole.93Among the specific benefits to be derived from the presence ofthese perspectives is the fact that the stories of women litigantswould be increasingly put forward in the courts and would be morefrequently understood.94 It is suggested that u[i]n order for ajudge to effectively hear a litigant's story, it may be necessaryfor her to put herself in the place of the litigant in order toevaluate the merits of the case from the perspective of the partyinvolved."9' However, "[in some contexts, especially where thecase involves an issue unique to women, it may be easier for female93 Ibid., 66-67.94 Ibid., 73.95 Ibid., 74.50judges to put themselves into the shoes of female litigants."'Second, the increased availability of the perspectives of womenjudges could strike a significant blow against the problems ofgender bias discussed earlier. While conceding that the presenceof more women on the bench might not be able to eliminate bias inthe legal process altogether, Grant and Smith assert that womencould better identify and overcome its effects. They thus notewith approval Justice Wilson's comment that women judges could playa role in remedying unsound legal principles which are the resultof gender bias.97Finally, it is asserted that as a result of their lifeexperiences, women judges will have special expertise in thoseareas of law often referred to as "women's issues." This"understanding [of] issues about inequality and discrimination fromthe inside could assist in adjudicating Charter and human rightscases. u 9 8Although Grant and Smith do not refer to it specifically, thislast argument has particular relevance for appointments to theSupreme Court. Just as supporters of regional quotas suggest thatsuch guaranteed representation serves to ensure that the Court willpossess knowledge of all parts of the country, the gender-basedargument is grounded in the belief that women can bring specifiedknowledge to the bench. Advocates of increased genderrepresentation therefore might suggest that if it is vital to96 Ibid., 75. This conception of the judge's task will bediscussed in greater detail in Chapter Four.97 Ibid., 76-78.98 Ibid., 78.51ensure that judges of various regional backgrounds be present onthe Court, surely it is necessary to guarantee the presence ofgender-based knowledge and perspectives.Although we have thus far been concentrating on academicexaminations of, and recommendations for, increased genderrepresentation on the courts in general and the Supreme Court inparticular, it must be stressed that the issue also has been takenup by advocacy groups whose goals are the advancement of thebroadly defined interests of women. The importance such groupsattach to Supreme Court appointments became evident during theMeech Lake Accord process. As was noted in Chapter Two, theAccord's provisions relating to the Court responded only tofederalism concerns. As a result, a number of groups concernedwith issues of social representativeness and openness appearedbefore the joint parliamentary committee examining the Accord, inorder to propose changes. During such an appearance,representatives of the National Association of Women and the Lawargued that gender and minority representation on the Court isimportant becausethe Supreme Court of Canada, and in fact all institutions,should reflect Canadian society. It is not necessarily amatter of representation, but it is a matter of input,people coming from broad cross-sections, bringing differentexperiences."The Association therefore asked the committee to endorse the goalof eventual equal gender representation on the Supreme Court.no99 Minutes of Proceedings and Evidence of the Special JointCommittee of the Senate and of the House of Commons on the1987 Constitutional Accord, No.2, August 4, 1987, 87.100 Ibid.52Here we see in stark terms the similarities between thearguments made by those who stress the need for regional and genderdiversity on the Court respectively. The Association's claim thatit is vital to have people with different backgrounds (in thiscase, gender) and therefore life experiences on the Court and thatpositive state action should be taken to ensure such diversity, isexactly the same type of argument advanced by those who defendconventional regional quotas.The emotional nature of this debate did not become evidentuntil the retirement of Madame Justice Bertha Wilson in 1990, whichreduced to two the number of women on the Court. JusticeWilson, who among other things was the only member of the Court todeclare that a woman had a constitutional right to an abortionunder the Charter of Rights and Freedoms, had developed a strongfollowing in the feminist community. Consequently, her departurefrom the bench and potential replacement were viewed with greatconcern by feminist groups, who pressured the federal government toreplace Justice Wilson with another woman.The subsequent appointment of Frank Iacobucci drew immediateprotest from women's groups. Anita Braha of the NationalAssociation of Women and the Law called the appointment "aregression, a step backward"1°2 and argued that the government hadmissed an opportunity to promote the development of a Supreme Courtwhich reflected social diversity and to demonstrate a commitment to101 The other women on the Court were Justices ClaireL'Heureux-Dube and Beverly McLachlin.102 Toronto Star, December 22, 1990.53sexual equality. 103 Again we encounter the view that the Court,through its composition, should send a message about our society'scommitment to sexual equality.The reaction of Judy Rebick, President of the National ActionCommittee on the Status of Women, was even more blunt: "[w]e losta fighter for women's rights and for human rights and someone whowas incredibly sensitive and strong on our issues in a way thatonly a woman could be," and her replacement with Iacobucciconstituted, according to Rebick, "an insult to women. un4 Onceagain, we see a social advocacy group making an argument similar tothat of Grant and Smith; in this case the notion that in certaininstances, only women judges will be able to properly understandand dispose of cases involving women. While neither the NAWL norNAC formally argued that Justice Wilson's seat should have beentreated as a guaranteed "women's seat" on the Court, both clearlyappear to have believed that this should have been the case.When Justice Stevenson retired for health reasons from theCourt in June of 1992, the federal government clearly made aneffort to replace him with a woman and thereby once again bring thenumber of women on the Court to three. However, the three mostlikely candidates, Catherine Fraser and Mary Hetherington of theAlberta Court of Appeal and Ellen Picard of the Alberta Court ofQueen's Bench all let it be known they would turn down theappointment were it offered to them, citing the stress and workloadattached to the job and the hesitancy of spouses to make the103 Winnipeg Free Press, December 22, 1990.104 Toronto Star, December 22, 1990.54requisite move to Ottawa.1°5 As a result, the appointment went toJustice John Major of the Alberta Court of Appeal.Two points emerge from this incident. First, it appears thatattempts to improve the social representativeness of the Court maynot be as simple as merely finding qualified candidates. Second,and perhaps more important, it is noteworthy that when faced witha choice between appointing a qualified woman from another provinceor simply appointing a man from Alberta, the government chose thelatter. Thus, while it displayed an initial commitment towardplacing more women on the Court, the government was willing tosacrifice this objective once it came into conflict withconventions relating to regional representation.B. Ethnoculturalism and the CourtThere exists no body of literature relating to ethnoculturalrepresentation in the judiciary comparable to the scholarshippertaining to gender representation and the courts. Further,systematic attempts to illustrate the ways in which existing legalprinciples are biassed against members of ethnocultural minorities,owing to their exclusion from the process of establishing thoseprinciples, have not been carried out in the same way in whichfeminist legal scholars have attempted to do this in the case ofgender.That said, however, ethnocultural organizations have not failedto develop a position on appointments to the Supreme Court. Thesegroups frequently have demanded that the Court be more socially105 Toronto Star, August 20, 1992.55diverse in its composition and, like feminist legal scholars andwomen's advocacy groups, often base their claims on the presence ofthe Charter of Rights. In an appearance before the parliamentarycommittee examining the Meech Lake Accord, Thor Broda, Vice-President of the Ukrainian-Canadian Committee, stressed thatethnocultural minorities historically had been vastly under-represented on the Court and that thus far there had been noredress despite the existence of the Charter:we do not believe all levels of government throughout Canadahave been living up to the letter and spirit of the CanadianCharter of Rights and Freedoms set out in sections 15 and27.1" Why is it that in the history of Canada there hasbeen only one Supreme Court justice [former Chief JusticeBora Laskin] who is of a non French-Canadian or non-Britishbackground? They are beautiful words in that section, butmeaningless if governments do not live up to them:"To remedy this situation, the Ukrainian-Canadian Committeeexpressed the hope that the presence of section 27 in the Charterwould lead to conventions of equity and fairness in Supreme Courtappointments that would eventually attain the status of law. 108The Canadian Ethnocultural Council went even further, arguing thatminority representation on the Court should be entrenched in theConstitution, just as Quebec's right to three seats would have beenconstitutionally guaranteed under the Meech Lake Accord.Like women's groups, ethnocultural organizations have lobbiedthe federal government to appoint members of ethnocultural106 Section 27 states that "[t]he Charter shall beinterpreted in a manner consistent with the preservation andenhancement of the multicultural heritage of Canadians."107 Minutes of Proceedings and Evidence of the Special JointCommittee, No. 7, August 13, 1987, 99.108 Ibid., 99-108.56minorities to the Supreme Court. For example, in May of 1988, asa new appointment appeared imminent, Andrew Cardozo of theEthnocultural Council remarked that in a meeting with BrianMulroney a year earlier, the Prime Minister had promised that theCouncil would be satisfied with the next appointment. In the dayspreceding the appointment, those touted as the most likelyappointees all were members of ethnocultural minorities. While thenames of Justices Dubin and Tarnopolsky of the Ontario Court ofAppeal were mentioned most frequently, it went to John Sopinka, aCanadian of Ukrainian descent, and was greeted enthusiastically bya number of ethnocultural organizations.'"A question arises: if there is no sense that legal principlesexist which are fundamentally unsound due to the exclusion ofmembers of ethnocultural minorities from their development, nor abelief that judges from such groups could have an impact on"ethnocultural issues" before the Court in the same way that forexample, women's groups felt Bertha Wilson could have on "women'sissues", why are groups such as the Ethnocultural Council soconcerned about representation on the Court? To answer thisquestion, we must look to the symbolic importance of Supreme Courtappointments.Sociologist Raymond Breton has written about the concept of a"symbolic order" and its applicability in the Canadian context.The construction of such an orderentails, first, the definition of a collective identitywhich, with time, becomes articulated in a system of ideasas to who we are as a people. This identity is representedin the multiplicity of symbols surrounding the rituals of109 Winnipeg Free Press, May 25, 1988.57public life, the functioning of institutions, and the publiccelebration of groups, events and individuals. nOThis symbolic order consists in part of identity and is importantto individual members of society.[I]ndividuals expect to recognize themselves in publicinstitutions. They expect some consistency between theirprivate identities and the symbolic contents upheld bypublic authorities, embedded in the societal institutions,and celebrated in public events. Otherwise, individualsfeel like social strangers; they feel that the society isnot their society. illCultural tradition, which is based on values, norms and customs,is the second part of this order. Cultural norms are embedded, forexample, within the form of government and the manner in whichjustice is administered. 112 "As in the case of symbols ofidentity, individuals also expect to recognize themselves in thevalues and meanings incorporated in the culture of publicinstitutions."113 The concept of this symbolic order stresses theidea that societal actors will not be interested solely in materialinterests and other purely instrumental factors. They also will beconcerned with whether their value to society is recognized throughthe inclusion of themselves or those like them in its mostimportant institutions, thereby allowing them to feel more a partof that society.It is through this lens that the demands of ethnocultural110 Raymond Breton, "The Production and Allocation ofSymbolic Resources: An Analysis of the Ethnocultural andLinguistic Fields in Canada," Canadian Review of Sociologyand Anthropology 21 (1984), 125.111 Ibid.112 Ibid.113 Ibid., 126.58minorities to be represented on the Supreme Court can best beunderstood. The primary goal is not some type of law reform northe counteracting of existing biasses, as is the case in demandsfor greater gender representation, but rather recognition; thebelief of such groups that their numbers should be present inimportant institutions such as the Court. Their inclusion is thusseen as performing the dual function of conferring on them therespect and consideration they deserve, while simultaneously givingmembers of these groups a heightened sense of connection to thesociety in which they live.Before departing from this topic, a final, speculative pointmight be made. While the debate over ethnocultural representationon the bench has thus far concentrated on symbolic considerations,there is no reason to suppose this will remain the caseindefinitely. It would appear reasonable to hypothesize that inthe future, organizations devoted to promoting the interests ofvisible minorities in Canada may begin to articulate aninstrumental argument for a more representative judiciary. Ratherthan concentrating on the extent to which existing legal principlesmay be biassed toward these groups, however, the discourse likelywould focus on more basic fears of judicial bias. The potentialfor the emergence of this debate may be reflected by the fact thatwhile the Royal Commission on the Donald Marshall Jr. Prosecutionconcentrated on the maltreatment of an aboriginal Canadian by thejustice system, it included the recommendation that judges take aleading role in ensuring fairer treatment of blacks by the justice59system. 114C. Aboriginal Peoples and the CourtThus far, we have seen two different approaches to the questionof social representativeness and the Supreme Court. On the onehand, women assert that a more gender-balanced Court could performthe symbolic role of illustrating societal commitments towardequality while achieving the instrumental value of better ensuringthat the stories of women litigants will be heard and understood,and that steps will be taken toward the diminishment of gender biasin the judicial process and the law itself. Alternatively,ethnocultural groups urge that their numbers be represented on theCourt for reasons which are almost purely symbolic in the sensethat appointments to bodies such as the Court are viewed asrecognition of such groups' importance and contribution to Canadiansociety.The discourse on aboriginal peoples and their relationship tothe judicial system in general and the Supreme Court in particulardiffers markedly from these other debates. Specifically, whilewomen and ethnocultural minorities express the need for inclusionon the Supreme Court, a number of aboriginal organizations stressthat the answer to their grievances may lie in disengagement from,rather than strengthened connections to, the existing judicialprocess. Their claims have more in common with French Canadianswho once argued that rather than ensuring a Quebec presence on the114 Royal Commission on the Donald Marshall Jr. Prosecution:Digest of Findings and Recommendations, 1989 (Halifax: TheRoyal Commission, 1989), 12.60Court, it should simply have no jurisdiction in matters dealingwith Quebec law.Before proceeding further, it must be stressed that the term"aboriginal" is being used for purposes of convenience rather thanout of any sense that the term encapsulates a nation or quasi-nation. In constitutional nomenclature, this term includesIndians, Inuit and Metis and, as Cairns notes, pertains to an"indeterminate number of nations divided by tribe, treaty status,location, presence or absence of a land base, and a history ofseparate administration for status Indians that Inuit and Metislacked. .115 Furthermore, political leaders and scholars withinthe aboriginal community by no means constitute a monolith in theirviews on the matters under discussion here.Aboriginal demands for disengagement from, rather thanintegration into, the Canadian political and legal processes arereflected in demands for aboriginal self-government and a separateaboriginal justice system respectively. The nature of a futureaboriginal order of government and justice system remain, at best,ill-defined. However, the extent to which aboriginal self-government appears to be an inevitability is reflected by the factthat the product of the most recent round of constitutionalnegotiations, the Charlottetown Accord, called for theconstitutional entrenchment of an inherent right to self-governmentand its status as a third level of government. The Accordguaranteed that this right would be justiciable after five years115 Alan C. Cairns, "The Fragmentation of CanadianCitizenship," in William Kaplan, ed., Belonging: The Meaningand Future of Canadian Citizenship (Montreal: McGill-Queen'sUniversity Press, 1993), 188.61and included some description of the ways in which it would beexercised. 116 Although there were no provisions within the Accordfor the creation of an aboriginal justice system, it remains a highpriority among aboriginal groups.Aboriginal demands for a separate or parallel justice systemare premised upon the perception that the existing criminal justicesystem in Canada is culturally alien to aboriginal peoples. P.A.Monture-Okanee and Mary Ellen Turpel, for example, assert thattraditional elements of the criminal law, such as the separation ofthe subjective mental element of intent and the objective elementof action, are not present in traditional aboriginal conceptions oflaw. Further, while the Euro-Canadian concept of adjudicationstresses independent and impartial judges, aboriginals emphasizethe need for judges with personal knowledge of those involved in acase. 117 As a result, notes Michael Jackson, in the Euro-Canadiantradition law is highly professionalized and decision-making iscarried out by specialists, while in the aboriginal tradition "theprocesses of dispute resolution are integrally linked to bothsocial organization and cultural values and beliefs. “118The aboriginal and Canadian approaches to the treatment ofoffenders also differ markedly from one another. In its Report,116 Canada, Privy Council, Consensus Report on theConstitution, Part IV.117 P.A. Monture-Okanee and Mary Ellen Turpel, "AboriginalPeoples and Canadian Criminal Law: Rethinking Justice,"University of British Columbia Law Review Special Editionon Aboriginal Justice (1993), 244-46.118 Michael Jackson, "In Search of the Pathways to Justice:Alternative Dispute Resolution in Aboriginal Communities,"University of British Columbia Law Review Special Edition onAboriginal justice (1993), 166-69.62the Aboriginal Justice Inquiry of Manitoba states that while theCanadian criminal justice system stresses punishment as a means ofpromoting conformity with the law and protecting other citizens,aboriginals traditionally have concentrated upon the need for re-establishing community equilibrium and reconciling offenders tothemselves and to their victims.119As problematic as these differing conceptions of law andcorrection may be, proponents of a separate aboriginal justicesystem claim that the more significant difficulty is therelationship between aboriginals and the existing system.Commenting on the Royal Commission Report on the Marshall case,Turpel argues that "institutionalized racism" against aboriginalsin the justice system and elsewhere "is a by-product ofcolonization, of the forced imposition of an alien legal, politicaland cultural regime onto communities."120 The Report similarlyasserts that aboriginals face systemic discrimination in thejustice system and that for them "the essential problem is that theCanadian system of justice is an imposed and foreign system. "121Critics often point to this cultural bias and discrimination asprimary factors leading to the over-representation of aboriginals119 Report of the Aboriginal Justice Inquiry of Manitoba:The justice System and Aboriginal People (Manitoba: 1991),12,22.120 Mary Ellen Turpel, "Further Travails of Canada's HumanRights Record: The Marshall Case," International journal ofCanadian Studies 3 (1991), 42.121 Report of the Aboriginal justice Inquiry of Manitoba,252-53.63in correctional facilities. 122A number of governmental inquiries into the relationship betweenaboriginal peoples and the justice system have determined that somesort of separate justice system should be established. TheManitoba Report concludes thatthe most appropriate course to follow is not simply toestablish a system of Aboriginal courts in Manitoba, but toestablish a fully functional justice system, complete withappropriate and related police and justice programs, supportservices and legal systems.123In its Report, the Law Reform Commission of Canada similarlyrecommends that those aboriginal communities which are willing andcapable should have the authority to establish separate justice systems . 124Finally, in its Report on the Marshall case, the RoyalCommission claims that Marshall, a Nova Scotia Micmac who servedeleven years in prison for murder before being acquitted by theNova Scotia Supreme Court, had been the victim of "a miscarriage ofjustice" and that "the fact that Mr. Marshall was a Native was afactor in his wrongful prosecution and imprisonment."125Commission Report stresses that "Native Canadians have a right toa justice system that they respect and which has respect for them,122 For a discussion of the high incidence of aboriginalincarceration in Canada, see Michael Jackson, "Locking UpNatives in Canada," University of British Columbia Law Review23 (1989).123 Report of the Aboriginal Justice Inquiry of Manitoba,256.124 Law Reform Commission of Canada, Report on AboriginalPeoples and Criminal justice: Equality, Respect and theSearch for justice (Ottawa: Law Reform Commission of Canada,1991), 16.125 The Royal Commission on the Donald Marshall Jr.Prosecution, 19.64and which dispenses justice in a manner consistent with, andsensitive to, their history, culture and language. u126 Althoughit does not go as far as the Manitoba Report or the Law ReformCommission, the Royal Commission recommends that as a five- yearpilot project, Nova Scotia establish a Native Criminal Court,including native justices of the peace, mediation services and theinstitution of community work projects as an alternative to finesand imprisonment. 127The consequences of the move toward aboriginal self-governmentand/or a separate justice system are unclear, partly because bothmatters have been left in something of a limbo since the rejectionof the Charlottetown Accord. However, there are a number ofadditional issues at stake. For example, Cairns asserts that aparadox has developed in the sense that while aboriginal groupsendeavour to extricate themselves from the legislative control offederal and provincial legislatures, they simultaneously demandstrengthened representation in parliament. He notes that thoseattempting to resolve this paradox argue that such representationwould reflect aboriginal peoples' special position within areformulated federation or, alternatively, that they would beacting in a quasi-ambassadorial capacity. 128This paradox has obvious relevance for appointments to theSupreme Court. If a system of aboriginal self-government were not126 Ibid., 11.127 Ibid.128 Cairns, "The Fragmentation of Canadian Citizenship,"199-200.65accompanied by a largely separate justice system, aboriginaldemands for representation on the nation's highest court clearlywould be a logical request. However, if such a separate systemwere constituted and the Supreme Court's jurisdiction removed,demands such as those of the Metis National Council that a Metis beappointed to the Supreme Court "at the government's earliestopportunity"129 would appear nonsensical. The justificationsoffered for guaranteeing an aboriginal presence in the House ofCommons despite self-government could not easily be transposed tothe judicial realm.The paradox of aboriginal disengagement from the Canadianpolitical system existing simultaneously with an increasedaboriginal presence in existing institutions clearly was evident inthe Charlottetown Accord. Cairns recognizes that the Accord"sanctioned an extraordinary degree of institutional andconstitutional separateness," most importantly through therecognition of inherent self-government.1" However, part ofthis separateness also derived from the manner in which aboriginalswould be represented in existing institutions. Under theprovisions of the Accord, aboriginals would have voted for specialaboriginal Members of Parliament, while specified representation inthe Senate would have ensured that aboriginal Senators were in noway linked to particular provinces. Thus, not only would129 Metis National Council, "MNC Response to the FederalProposal," 4. Cited in Cairns, "The Fragmentation ofCanadian Citizenship," 208.130 Alan C. Cairns, "The Charlottetown Accord: MultinationalCanada vs. Federalism." Paper prepared for the ColoradoCollege Colloquium, November 13-14, 1992, 23.66aboriginal representation in existing institutions have beenenhanced, but would have been premised on the notions that theaboriginal population of Canada could only be represented by otheraboriginals.'Given there were no provisions for a separate justice system inthe Charlottetown Accord, combined with its explicit stipulationthat the Charter of Rights was to apply to aboriginal governments,although as we shall see in a somewhat attenuated form, it isperhaps not surprising that the Consensus Report includedprovisions for a later political accord outlining a role foraboriginal peoples in the Supreme Court appointment process.Specifically, this involved developing a procedure for obtainingthe views of aboriginal groups prior to the provincial submissionof lists of potential appointees to the federal government, theright of aboriginal peoples to make representations to the federalgovernment about potential appointees and an examination of theproposal that an Aboriginal Council of Elders be entitled to makesubmissions to the Court in cases affecting the interests ofaboriginals 132Before departing from this topic, a significant final pointmust be made. We have thus far noted that the presence of theCharter plays a role in the demands of both women's andethnocultural groups for representation on the Court. For someaboriginals, however, the Charter serves instead as yet anotherexample of why a separate justice system is required. Turpel131 Ibid., 24,32.132 Canada, Privy Council, Consensus Report on theConstitution, sec.20.67argues that the liberal conception of justice, exemplified by theCharter, stresses individual rights, self-interest and theprotection of private property. By contrast, aboriginal life ispremised upon community, mutual responsibility and the belief thatthere is no exclusive, individual realm of existence.'33Louise Mandell claims that as a result of these incongruousworld views, "it is questionable whether the courts can or shouldsettle issues involving aboriginal rights."34 She suggests thecourts could help to lay the foundations for political negotiationsbetween aboriginal nations and the Crown, but only if the judiciarywould make a concerted effort to understand aboriginal views."5Those who argue that the differing cultural values and worldviews of aboriginals and non-aboriginals may lead to judicialdecisions which are detrimental to the former have found a rallyingpoint in the case of Delgamuukw v. B.C. The action, brought byfifty-one hereditary chiefs of the Gitksan and Wet'suwet'ennations, was the largest aboriginal title case in Canadian history.After a lengthy trial, which included a great deal of oral andwritten testimony from anthropologists specializing in the study ofaboriginal peoples in British Columbia, Chief Justice McEachern ofthe British Columbia Supreme Court ruled that the plaintiffs had no133 Mary Ellen Turpel, "Aboriginal Peoples and the CanadianCharter: Interpretive Monopolies, Cultural Difference," inMichelle Boivin et al., eds., Canadian Human Rights Yearbook(Ottawa: University of Ottawa Press, 1990), 16, 29-30.134 Louise Mandell, "Native Culture on Trial," in Martin andMahoney, 365.135 Ibid.68title to the lands in question.'Justice McEachern's ruling has been widely criticized by anumber of scholars, including those who participated in the trial.He has been charged with basing his ruling upon the biassed notionthat aboriginal societies were primitive, while simultaneouslyappearing "singularly blind to the assumptions of his ownculture."137 One anthropologist who testified during the trialasserts that McEachern completely dismissed the evidence providedby experts, and instead created a personal anthropological approachwhose central tenet was the notion of a progressive societalevolution which began with the primitive and ended with hisconception of his own, modern society. In developing anevidentiary basis for his approach, McEachern disregardedaboriginal oral tradition as a historical tool and saw validityonly in traditional archival documentation."Despite the fierce debates occasioned by rulings such asMcEachern's in a high-visibility case like Delgamuukw v. B.C. itmust be remembered that aboriginal complaints that the tenets ofthe Canadian legal system, particularly the Charter, areantithetical to traditional aboriginal conceptions of justice, arepolitically as well as culturally motivated. More specifically,many aboriginal leaders136 Bruce G. Miller, "Introduction," B.C. Studies 95 (1992),4,5. The entire issue is devoted to the ruling in thiscase.137 Robin Ridington, "Fieldwork in Courtroom 53: A Witnessto Delgamuukw v. B.C.," B.C. Studies 95 (1992), 17.138 Julie Cruikshank, "Inventing Anthropology in BritishColumbia's Supreme Court: Oral Tradition as Evidence inDelgamuukw v. B.C," B.C. Studies 95 (1992), 26.69view the Charter from the perspective of present or futurepolitical executives charged with the responsibility ofnourishing their minority national communities in athreatening, assimilating environment. They see theCharter, therefore, not as a liberation, but as aconstraint. These elites see parliamentary supremacy andexecutive power not from the vantage point of marginalizedminorities fearful of state power, but as leaders ofmajorities seeking to use power on behalf of theirpeoples 139Aboriginal leaders' misgivings about the Charter are reflected inthe agreement they helped negotiate in Charlottetown. While theAccord stipulated that the Charter of Rights would apply toaboriginal governments, 140 there were three significant caveats.First, the Accord stated that Section 25 of the Charter, the "non-derogation clause"should be strengthened to ensure that nothing in the Charterabrogate[d] or derogate[d] from Aboriginal, treaty or otherrights of Aboriginal peoples, and in particular any rightsor freedoms relating to the exercise or protection of theirlanguages, cultures or traditions. 141Second, aboriginal governments were exempted from the democraticvoting rights provisions of the Charter, thereby allowing for thesegovernments' employment of traditional leadership selectionmethods 142 Finally, the Accord specified that aboriginalgovernments would be able to invoke the s.33 "notwithstandingclause" in a manner similar to the other governments of the139 Alan C. Cairns, "Reflections on the Political Purposesof the Charter: The First Decade," in Gerald A. Beaudoin,ed., The Charter: Ten Years Later (Cowansville: Editions Y.Blais Inc., 1992), 78.140 Canada, Privy Council, Consensus Report on theConstitution, s.43.141 Ibid., s.2.142 Cairns, "The Charlottetown Accord: Multinational Canadavs. Federalism," 25.70federation."'The Charter is not without its adherents in the aboriginalcommunity, however. The Native Women's Association of Canada hasargued vehemently that the Charter must apply fully to futureaboriginal governments. Their support for the Charter isconditioned in part by the fact that its presence led to changes inthe Indian Act which had been long sought by aboriginal women. TheAct had stipulated that Indian women who married non-Indians wouldlose their Indian legal status, while the reverse was not true forIndian men. Indian women had unsuccessfully challenged theseprovisions in court, while the National Indian Brotherhood,precursor of the present Assembly of First Nations, sided with thefederal government. Thus, these provisions were not modifieduntil 1985, when the government took action so that the Act wouldnot violate the Charter's section 15 equality guarantees, whichcame into force in that year. 144The National Indian Brotherhood's attempt to preserve practiceswhich aboriginal women viewed as discriminatory, clearly has leftthe Native Women's Association suspicious of the potential actionsof future aboriginal governments. More particularly, it fearsaboriginal governments may attempt to employ the section 25 "non-derogation clause" as a means of justifying the infringement ofindividual rights in aboriginal communities.' Given these143 Canada, Privy Council, Consensus Report on theConstitution, s.43.144 Native Women's Association of Canada, "Native Women andthe Charter: A Discussion Paper," 1-2.145 Ibid.,9.71misgivings, it is not at all surprising that the Associationopposed the Charlottetown Accord provisions allowing aboriginalgovernments to invoke the section 33 "notwithstanding clause,"especially since it had previously argued that the clause shouldnot be available to these governments. 146Although there clearly are divisions within the aboriginalcommunity on matters such as the future application of the Charter,our fundamental conclusion about the relationship of aboriginals tothe Supreme Court warrants reiteration. The debate surroundingaboriginal representation on the Court is fundamentally differentfrom those relating to the representation of women and members ofethnocultural minorities. While the latter two groups stress thesymbolic and functional benefits to be derived from theirrepresentation on the Court, many aboriginals question the value ofstrengthened connections with the Canadian legal process andsuggest instead that separation may be the more viable solution totheir grievances.The Openness DimensionWhile the mere existence of the Charter leads to demands thatthe Supreme Court be more socially representative, its presence,and the judiciary's responsibility for its interpretation, raiseadditional considerations about the Court and the manner in whichits judges are appointed. This dimension of the debate stresses146 Native Women's Association of Canada, "Native Women andSelf-Government: A Discussion Paper," 4,10,14. Cited inCairns, "Reflections on the Political Purposes of theCharter," 187.72the Supreme Court's role as arbiter of citizen-state relations andtherefore is based more on practical than symbolic considerations.The adoption of a federal system in Canada necessitated aformal written constitution. However, in keeping with the Britishconstitutional tradition, the British North America Act did notinclude a codified bill of rights similar to those in theconstitutions of the United States and a number of Europeannations.'47 However, over the course of a series of casesinvolving civil liberties, a number of judges on the Supreme Courtof Canada began to promote the concept that the British NorthAmerica Act's establishment of a parliamentary system, combinedwith its preamble stating that the Constitution was to be "similarin Principle to that of the United Kingdom" created an "impliedbill of rights" protecting those activities which are vital to thefunctioning of a liberal democracy. 148 This view never commandeda majority on the Court, and when it did strike down lawsthreatening basic civil liberties, the Court did so on othergrounds, usually the division of powers."9The passage of the Canadian Bill of Rights in 1960 by theDiefenbaker Government did little to alter this situation. It wasa statute of the federal Parliament and therefore could be alteredor even abolished at any time. Furthermore, the Bill of Rights wasto apply only to federal jurisdictional matters. Most importantly,147 The Act did, however, include some specific guaranteesin terms of language and education rights.148 See, for example, Reference re Alberta Statutes, (1938)S.C.R. 100 and Saumur v. Quebec, (1953) 2 S.C.R. 299.149 See, for example, Switzman v. Elbling, (1957) 1 S.C.R.285.73"judges proved reluctant to use an instrument of less than fullconstitutional status to invalidate federal legislation"150 and asa result the Supreme Court struck down only one piece of federallegislation on the basis of the Bill of Rigts.151Not surprisingly, the Court's treatment of individual rightshas changed dramatically under the Charter. Unlike the Bill ofRights, the Charter is a constitutionally entrenched document andis applicable to both federal and provincial statutes.Furthermore, Section 52 of the Constitution Act, 1982 statesexplicitly that "[t]he Constitution of Canada is the supreme law ofCanada, and any law that is inconsistent with the provisions of theConstitution is, to the extent of the inconsistency, of no forceor effect."In its early Charter judgments, the Court explicitlyacknowledged its new and expanded role as a result of theConstitution Act, 1982. In the Court's first Charter decision,Justice Estey stated:[t]he Charter comes from neither level of the legislativebranches but from the Constitution itself. It is part ofthe fabric of Canadian law....With the Constitution Act,1982 comes a new dimension, a new yardstick ofreconciliation between the individual and the community andtheir respective rights, a dimension which, like thebalance of the Constitution, remains to be interpreted andapplied by the Court.152Later, in Hunter v. Southam, Chief Justice Dickson explained thatthe Court would have to move in a new direction in interpreting the150 Rainer Knopff and F.L. Morton, Charter Politics(Scarborough: Nelson Canada, 1992), 19.151 The Queen v. Drybones, (1970) S.C.R. 282.152 Law Society- of Upper Canada v. Skapinker, (1984) 1S.C.R. 357.74Charter:[t]he task of expounding a constitution is cruciallydifferent from that of construing a statute. A statutedefines present rights and obligations. It is easilyenacted and as easily repealed. A constitution, bycontrast, is drafted with an eye to the future. Itsfunction is to provide a continuing framework for thelegitimate exercise of governmental power and, when joinedby a Bill or Charter of rights, for the unremittingprotection of individual rights and liberties....Thejudiciary is the guardian of the Constitution and must, ininterpreting its provisions, bear these considerations inmind. 153These principles of interpretation set the stage for a completerethinking of civil liberties issues on the Court.The Court's Charter decisions have reflected this new, lessdeferential approach. In its first one hundred Charter of Rightsdecisions, 35% of Charter claimants were successful.154 Althoughmany Charter "victories" have involved executive conduct such aspolice activity, eight federal and eleven provincial statutes werenullified on Charter grounds.155 Furthermore, cases involving theCharter are becoming an increasingly large part of the Court'swork. In 1984, 6% of the Court's rulings were in Charter cases,while in 1989, 23% of its decisions were Charter-related.156However, the Court's expanded role has not been accompanied byalterations in the way its judges are appointed. In fact, those153 Hunter v. Southam, (1984) 2 S.C.R. 145.154 Morton et al., "The Supreme Court's First One HundredCharter of Rights Decisions," 4.155 Ibid., 13-14.156 Ibid., 2. Commenting on the effects of its Charterdecisions, the Supreme Court's annual report for 1988-89notes that "for better or worse, our judgments oftenseem to affect the lives, spirit and aspirations of allCanadians." Supreme Court of Canada, Supreme Court ofCanada: 1988-89 Annual Report (Ottawa: 1989), 1.75changes in the appointment process which have been implemented overthe last quarter of a century occurred in the period before theCharter's entrenchment and actually have had little effect on theSupreme Court appointment process. In 1967, then Justice MinisterPierre Trudeau instituted the practice of referring the names ofpotential federal judicial appointees to a committee of theCanadian Bar Association for a pronouncement on theirqualifications. The committee's recommendations were non-binding,however, and potential Supreme Court nominees were not included inthe process, likely because they would come largely from appellatecourts. In 1974, Justice Minister Otto Lang created the officeof a Special Advisor who would gather names and information aboutthe qualifications of potential appointees to federal courts.However, this process has had little effect on appointments to theSupreme Court.158 Thus, the process remains a largely closedaffair in which the Governor General in Council, in practical termsthe Cabinet, after receiving non-binding advisory input, makesappointments to the Supreme Court. Furthermore, although theCabinet theoretically holds the appointing authority, theprerogative ultimately lies with the Prime Minister.159Although different groups and commentators criticize theexisting process on a variety of grounds and offer divergentreasons for instituting a more pluralistic and participatory157 Jacob S. Ziegel, "Federal Judicial Appointments inCanada: The Time is Ripe for Change," University of TorontoLaw journal 9 (1987).158 Weinrib, 118.159 Baar, 145.76appointment mechanism, their claims have a common element: to agreater or lesser extent, each argues that their proposed reformsare necessitated either by the language of the Charter or the factthat the courts, especially the Supreme Court, have taken on newresponsibilities and importance as a result of the Charter.Those who concentrate on the Court's capacity as arbiter ofcitizen-state relations under the Charter, rather than as umpire ofthe federal system, insist it is this task which should beconcentrated upon when developing a new appointment process. Thesecritics argue that inasmuch as the Court is to mediate disputesbetween the state and the citizenry, it is inappropriate for thestate to so completely dominate the appointment process. Theytherefore call for a more pluralistic and participatoryprocedure. 160 A parallel clearly exists between the federalismand openness challenges to Supreme Court legitimacy. Althoughthese criticisms are grounded in differing visions of the Court'sprimary role, each is based on the idea that one of the parties todisputes has an inordinate amount of control over who adjudicatesclaims.The reform proposal advanced by MacKay and Bauman is anexcellent example of this view of the Court. Although the specificproposal will be discussed in detail in the following chapter, therationale for reform offered by MacKay and Bauman is relevant tothe present discussion. Before outlining a new mechanism whichwould drastically reduce government power and involvement in theprocess in favour of a more pluralistic Appointing Council, they160 Banting, 31,52.77attack the traditions of regional quotas and argue that[t]he role of the Court as a panel that adjudicatescultural, economic and social issues, both in constitutionalcases and in other disputes involving broad questions ofjudicial law-making, makes it imperative that a method ofselection be devised to ensure that all relevant qualitiesof a potential appointee be assessed. We must find some wayout of the recurrent debate over the role of political andregional patronage in the appointment of federal judges.The model described below is designed to overcome thisproblem in respect of appointments to the Supreme Court ofCanada. It is based upon the unique place that the Courthas traditionally occupied as the final arbiter ofintergovernmental disputes, as well as on its emergingrole as the ultimate referee of legal relations betweengovernment and the governed. 161Two related ideas are at work here. First, it is stressed that theappointment process must reflect the fact that the Court nowadjudicates citizen-state relations as well as the federal divisionof powers. Second, it is asserted that without a more pluralisticprocess that takes other significant factors into consideration, wecannot be assured that those most qualified to carry out theimportant task of interpreting the Charter will be appointed to theSupreme Court.The testimony of the National Association of Women and the Lawbefore the parliamentary committee on the Meech Lake Accordperfectly illustrates the conception that because of the Charter,for reasons of fairness, non-governmental actors must have a rolein the appointment process. The submission is interesting in thatit clearly is conditioned by the terms of the Accord itself. TheAssociation argued that just as the Accord called for provincialgovernments to submit lists of potential appointees to the federalgovernment, so too should women's groups and other interested161 MacKay and Bauman, 79.78organizations be able to submit names. 162 The assumption is thatwhile governments deserve a voice in the appointment process, itshould not be a singular one, but instead should be put on an equalfooting with others whose interests will be affected by decisionsof the Court.The second argument advanced in favour of a more open andparticipatory appointment procedure is related to demands for amore representative judiciary. A number of scholars and advocateshave argued that a more open process, usually one involving someform of nominating commission which canvasses a number of potentialappointees and then submits lists of nominees to the government,which then would make an appointment from the list, would betterensure a more representative Court, with the attendant benefitsdiscussed in the previous sections. Jeremy Webber argues, forexample, that "institutionalized consultation with groupsrepresenting Canadians living in poverty, women's groups andrepresentatives of native or other cultural communities.. .163.would be valuable in that they could play a role in improving therepresentativeness of the judiciary. MacKay and Bauman go evenfurther, suggesting that if the Court is not more sociallyrepresentative, it will be unable to properly fulfil itsresponsibility for interpreting the Charter. 164162 Minutes of Proceedings and Evidence of the SpecialJoint Committee, No. 2, August 4, 1988, 83-87.163 Jeremy Webber, "The Adjudication of Contested SocialValues: Implications of Attitudinal Bias for the Appointmentof Judges," in Ontario Law Reform Commission, AppointingJudges: Philosophy, Politics and Practice (Toronto: OntarioLaw Reform Commission, 1991), 27.164 MacKay and Bauman, 96.79Not surprisingly, feminist legal scholars and advocates expresssupport for a more pluralistic process for similar reasons. Grantand Smith urge that nominating committees be created for allfederal judicial appointments. These committees would havemandatory representation requirements and members would beappointed after consultation with groups representing women andminorities. The creation of such committees, they argue, wouldresult in a more socially representative judiciary in Canada.165The third rationale behind calls for reform of the appointmentprocess is based not on concerns of social representativeness orthe conception that the Court's new role requires the presence ofnon-governmental actors in the process, but rather on the premisethat the existing system is overly susceptible to abuse in terms ofjudicial appointments based on patronage and partisanship ratherthan merit. The reform proposals of the Canadian Bar Association(CBA) and the Canadian Association of Law Teachers (CALT) bestreflect this element of the debate. 166Both proposals are directed at federal judicial appointments ingeneral. Their claims that patronage and partisanship continue toplay a role in judicial appointments has been borne out through165 Grant and Smith, 89-90.166 Canadian Bar Association, Report of the Canadian BarAssociation Committee on the Appointment of Judges in Canada; Canadian Association of Law Teachers Special Committee onthe Appointments of Judges, "Recommendations," in CanadianAssociation of Law Teachers, Judicial Selection in Canada:Discussion Papers and Reports (Toronto: Canadian Associationof Law Teachers, 1987).80subsequent empirical study. 167 Although each proposal includesprovisions for reforming the Supreme Court appointment processthrough the use of nominating councils, both organizations concedethat appointments to the Supreme Court of late have been largelybereft of patronage and partisan considerations, 168 a sentimentechoed by scholars who concentrate on the Canadian judiciary. 169Nonetheless, the CBA argues that reform should be undertaken so asto ensure that such political considerations may never again playa significant role in future appointments to the Supreme Court.17°Before proceeding to a discussion of the actual contents ofthese proposals, it should be stated that while neither suggeststhe Charter mandates a more socially pluralistic appointmentprocess and socially representative Court, nor the idea that theCourt's new responsibilities under the Charter should be thedecisive factor in designing a new mechanism, the Charter does play167 See Peter H. Russell and Jacob S. Ziegel, "FederalJudicial Appointments in Canada: An Appraisal of the FirstMulroney Government's Appointments and the New JudicialAdvisory Committees," University of Toronto Law Journal 41(1991).168 Canadian Bar Association, Report of the Committee on theSupreme Court of Canada (Ottawa: Canadian Bar Foundation,(1987), 47-48 ; Canadian Association of Law Teachers, 212.The CALT is perhaps not as unequivocal on this point as theCBA, but it does say that patronage has played a role "untilonly recently....," suggesting a belief that this no longeris the case.169 See, for example, W.R. Lederman, "Current Proposals forReform of the Supreme Court of Canada," Canadian Bar Review57 (1979), 699 ; Peter H. Russell "Meech Lake and theSupreme Court," in Swinton and Rogerson, 105.170 Canadian Bar Association, Report of the Committee on theSupreme Court of Canada, 48.81at least a partial role in their arguments. The Bar Associationstates, for example, that[t]he introduction of judicial considerations of socio-political issues as a result of the Charter, as well as thepossibility of reviewing cabinet decisions, have heightenedconcerns over the involvement of actual or perceivedpolitical influence in the appointment of judges.Political issues are now to be justiciable.171In appearances before the Special Committee examining the MeechLake Accord, representatives of both the CBA and CALT criticizedthe Accord's Supreme Court appointment mechanism and offered asalternatives their respective nominating council schemes.Interestingly, both groups placed far more emphasis on the Court'snew role as arbiter of citizen-state relations under the Charter asa rationale for reform than was the case in their earlier, writtenreports.Bryan Williams, President of the Canadian Bar Association,argued that "what should have been recognized in the Accord [was]the need to involve people outside of government in the process ofselecting the arbiter of their rights. "72 Similarly, JacobZiegel, Co-Chair of the CALT, argued the Court's primary role isnow the interpretation of the Charter and as a result "theselection of judges to the Supreme Court should reflect the manypurposes and diverse roles the Supreme Court serves, and willcontinue to serve in the future."173 Thus, although neither grouphad modified its proposed reforms, they added the Charter as an171 Canadian Bar Association, Report of the Committee on theAppointment of Judges in Canada, 61.172 Minutes of Proceedings and Evidence of the SpecialJoint Committee, no.9, August 18, 1987, 117.173 Ibid., no.15, August 31, 1987, 8.82additional justification for their implementation.In terms of specific proposals, the Bar Association recommendedthat an Advisory Committee on Federal Judicial Appointments becreated in each province and territory, composed of the ChiefJustice of the province or territory (or his or her delegate),appointees of the federal Minister of Justice and the provincialAttorney-General, two lawyers and, finally, two lay people chosenby the other members of the Committee. With the exception of theChief Justice, Committee members would serve terms of no more thanfive years.Under this plan, a provincial committee would be informed bythe federal government as soon as a court vacancy was created inthat province. The Committee would consider candidates suggestedby both levels of government and other interested organizations, aswell as conduct its own search. A list of no fewer than threenames would be submitted to the federal Minister of Justice, whocould either appoint someone from this list or request additionalnominees. Although final appointment authority would remain withthe federal government, it would have to choose someone nominatedby the Committee. In the case of Supreme Court appointments, therelevant Committees in the region from which the appointment was tocome would be consulted and the same procedure would befollowed.174Although the CALT recommends a system of provincial nominatingcommittees similar to those proposed by the Bar Association'',174 Canadian Bar Association, Report of the Committee on theAppointment of Judges, 64-70.175 Canadian Association of Law Teachers, 101-15.83there are two major differences. First, the CALT asserts that itmight be unconstitutional to fetter the federal government's finalappointing authority and therefore recommends that it be permittedto ignore the Nominating Council's [the term used by the CALT)recommendations after providing a reason for its action.176Second, it asserts that in keeping with the national character ofthe Supreme Court, a separate Nominating Council containing bothnational and regional representatives should act as the nominatingbody for Supreme Court appointments.177A final point emerges from our examination of demands forreform of the appointment process. Although there is a diversityof opinion as to why reform is needed, there is near-unanimousendorsement for some system of nominating committees and littlesupport for confirmation hearings or other mechanisms which couldincrease public awareness of the Court and its membership. Groupssuch as the National Association of Women and the Law, and scholarslike Grant, Smith, MacKay and Bauman are concerned largely withgaining assurances that representatives of various existing socialorganizations have input into the process. For their part, the CBAand CALT are concerned largely with eliminating patronage andpartisan appointments. One cannot help but conclude that even ifthe reforms discussed in this section were put into place, theappointment process would continue to be an elite-driven affairwhich would remain largely outside of the public eye.176 Ziegel, "Federal Judicial Appointments in Canada: TheTime is Ripe for Change," 58.177 Ibid., 59-60.84Chapter 4 - The Implications of the Debate for Reform of theSupreme CourtTensions Between the Legitimacy ChallengesAlthough we have distinguished between two broad challenges tothe legitimacy of the Supreme Court of Canada, one based onconcerns of federalism and the other upon issues of socialrepresentativeness and procedural openness, it is worthwhilereiterating that in the course of our discussion we have identifiedsome similarities within these alternative discourses. Forexample, it was observed that some of the arguments advanced infavour of increasing the number of women on the Court arestrikingly similar to those proffered by defenders of conventionalregional representation quotas.There also are similarities between federalism and openness-oriented criticisms of the existing appointment mechanism. Just asthe provinces traditionally have argued that it is inappropriatefor the umpire of the federal system to be appointed solely by thefederal government, so too have those who concentrate on theCourt's work as interpreter of the Charter of Rights contended thatit is improper for the state to have singular control over theappointment of judges who act as the final arbiter of citizen-staterelations under that document.We also have witnessed some of the argumentation whichcharacterized the earliest part of the federalism debate re-emergein the discourse on social representativeness. Claims byaboriginal leaders that their peoples' grievances can best be met85not through increased representation on bodies such as the Court,but rather through a separate justice system, are reminiscent ofpast demands of those in Quebec who once argued that rather thanplacing more Quebecers on the Court, its jurisdiction overprovincial law matters should be removed.Yet, while there may be some resemblance among the arguments ofthose challenging the legitimacy of the Court, the actual goals ofthose concerned with federalism-oriented reform and critics pre-occupied with questions of representativeness and openness aresignificantly different and, in fact, conflict with one another.This conflict arises from the fact that the demands for reform areconditioned by differing visions of the Court's primary role. Thusthe provinces, which stress its role as federal umpire, demandreforms which they believe will increase the Court's legitimacy inthis capacity; those who concentrate on its role as arbiter ofcitizen-state relations articulate the need for changes whichreflect this new responsibility. Keith Banting has described thisconflict as "competing bases of legitimation" and succinctlydescribes the resultant complications for reform.From the perspective of federal-provincial relations, anational court is one composed of members from the diverseregions of Canada and appointed jointly by the two levels ofgovernment that are the primary contestants before it. Fromthe perspective of a general court of appeal charged withthe interpretation of human rights, however, a nationalcourt is one representative of, or at least sensitive to thecultural complexity of a different Canada, one defined bygender, ethnicity, race, language, aboriginal and immigrantstatus. This national court would be appointed through amore public process of debate and participation in whichgovernments would have a less privileged position.'The conflict between these two visions of the Court and the178 Banting, 52.86accompanying demands for reform are obvious. While it may be anoverstatement to suggest that any attempt to compromise betweenthese two visions would result in a simple zero sum game, it isclear that simultaneously legitimizing the Court in the eyes ofboth groups will be difficult.Banting argues that the two groups' alternate views of theCourt's primary function result in reform proposals which areinsensitive and even hostile to the interests of one another. Byway of example, he compares the Supreme Court reform provisionscontained in the Meech Lake Accord with the aforementioned reformproposal of A. Wayne Mackay and Richard Bauman.179 In ChapterTwo, it was noted that the Accord, which would haveconstitutionally entrenched the Court and Quebec's guarantee ofthree judges, while reforming the appointment process, respondedsolely to concerns of federalism. There exists no recognition inthe Accord that the Charter's presence necessitates newconsiderations about the composition of the Court and theappointment process.180 While it would have increased thelegitimacy of the Court in the eyes of provincial governments, theAccord's provisions would have heightened the suspicions of thosewho focus on its Charter functions. Not only did the Accord offer179 Ibid., 52-54.180 Cairns, "Who Should the Judges Be?' 71. The assumptionthat the presence of an entrenched rights document need notlead to new considerations about Supreme Court reform has alengthy pedigree. As Cairns notes, although a charter wasincluded in its 1978 constitutional reform proposal, theaccompanying document on the Supreme Court did not suggestthat its existence raised new concerns about the Court'scomposition and the appointment process. Such reformprovisions were similarly absent in the federal government's1980-82 unilateral package. (69)87no solace to groups demanding a more socially representative Court,but also by granting sole nominating authority to the provinces, itgave a great deal more influence to the level of government wherea restricted view of the Charter was likely to be most popular. 181Interestingly, the Accord's insensitivity to concerns about amore socially representative Court are highlighted by a 1988federal government discussion paper outlining the new federaljudicial appointment process adopted in that year. One of thestated objectives of the new process is the development of a morerepresentative judiciary, which is to be achieved throughencouraging the appointment of women and members of ethnoculturalminorities to the bench. 182 Supreme Court appointments wereexempted from the new process, owing to the existence of theAccord. A noticeable dichotomy was thus created. While thefederal government was publicly promoting the objective of a moresocially representative judiciary, its desire to respond tofederalism demands through the Meech Lake Accord resulted in aconstitutional reform package whose provisions relating to thenations's highest court were completely oblivious to suchconsiderations.Lying at the opposite end of the spectrum from the Meech LakeAccord is the MacKay-Bauman plan. As we noted in the previous181 Banting, 51.182 Grant and Smith are critical of the new appointmentprocess for federal judges, noting that while a morerepresentative judiciary is to be encouraged, there areno assurances of gender balance, nor an opportunity for thevetting committees in the new process to seek out qualifiedwomen. The committees are only to evaluate those candidateswhose names are forwarded to them (89).88Chapter, they concentrate on the Court's role as interpreter of theCharter and therefore advocate a more representative Court, themembership of which would be determined in a more pluralistic andparticipatory fashion. They therefore recommend that an AppointingCouncil be created to develop lists of potential candidates andactually make appointments to the Court. The thirteen memberCouncil, at least seven of whom would have to be women, would bechosen from among nominees of the federal and provincialgovernments. In addition to the gender representation requirement,the Council also would reflect social diversity in terms ofvocation (although there would always be seven members with legaltraining,) age, socio-economic status, race, ethnicity, regionalorigin and ideological orientation. All potential Council memberswould have to be acceptable to the federal government and at leastfour provinces. Finally, Council members would serve ten-year,staggered non-renewable, terms •183MacKay and Bauman are critical of conventional regionalrepresentation quotas on the Court. With the exception of Quebec,whose civil law system necessitates its being guaranteedrepresentation, they argue that local knowledge is not easilydiscernible and difficult to bring to the fore in the Court'sdecision-making. In addition, they claim its diminishing role asfederal umpire and burgeoning Charter responsibilities make suchrepresentation less relevant. Thus, while conceding that someassurance of regional representation on the Appointing Councilwould be acceptable, they believe the convention of regional quotas183 MacKay and Bauman, 79-84.89on the Court itself should be abandoned. In fact, they go so faras to suggest that it should not be considered problematic if amajority of its members were to come from a single region.184Banting recognizes that this proposal is hostile to thegovernments of the federation in that they would be denied anydirect input into the actual appointments. Further, MacKay andBauman's assertion that regional origin should be eliminated isantagonistic to concerns of regionalism:[s]uch an appointment procedure might well enhance thelegitimacy of the Court in the eyes of social groups seekingto use the Charter to advance their interests. It would donothing for federal Canada, however, and would makeprovincial governments very nervous.'Although it must be reiterated that Supreme Court reform need notnecessarily be a zero sum game, the Meech Lake Accord and theMacKay -Bauman proposal clearly illustrate that different visions ofthe Court's primary role can result in proposed reform mechanismswhich are openly hostile to the interests of those with alternativeviews.Structural Problems Within the Debate: Jurisprudential Theory,Representation and the CourtAlthough reconciling the demands of those with differingvisions of the Supreme Court's main function may be the largestpractical obstacle to modifying the appointment process and thecomposition of the Court, the nature of the present debate hasadditional, and largely unexamined, consequences. Before a reform184 Ibid., 74-75, 83.185 Banting, 53.90agenda can be adopted, two important questions must be answered.First, how is the adjudicatory process to be understood? Second,how can the concept of representation properly be applied to thejudiciary, whose legitimacy and moral authority stem from theperception of its independence and impartiality? The manner inwhich groups demanding change answer these questions will affectperceptions of the Court and thus will have implications for itsreform. While these questions obviously are intimately related,in our discussion we shall endeavour to disentangle them, if onlyfor the purpose of increased clarity.A. Jurisprudential Theory and the Current DebateAt the heart of demands for a reformed appointment process andchanges to the composition of the Court lies the belief that itmatters who judges, not in the mere sense that they possessspecified legal qualifications, but that the personal attributesand beliefs of potential jurists will be of some consequence forthe actual decisions they reach. However, if people are to makethis claim, be they members of governments, scholars or activists,it would seem to be incumbent upon them to articulate a vision ofthe adjudicatory process. Because the current debate focuseslargely on questions of the Court's role as umpire of the federaldivision of powers under the Constitution Act, 1867 and arbiter ofcitizen-state relations under the Charter of Rights, the keyquestion is that of the nature of interpreting legal texts.Attempts at answers to questions such as these are found withinthe realm of jurisprudential theory, or the philosophy of law.91Jurisprudential theory canvasses a wide array of subjects. As theAmerican legal theorist Ronald Dworkin, whose work we will discussin greater detail momentarily, has noted, jurisprudential theoristsin England traditionally concentrated on analytical questions oflegal doctrine, including the definition of the term, law,itself. lE By contrast, in the United States, where "courts hadplayed a larger role...in reshaping nineteenth-century law to theneeds of industrialization, and [the] constitution made legalissues out of problems that in England were political only,"jurisprudential theorists focused on the process of adjudication,specifically the question of how judges decide difficult cases.'It is this question with which we primarily are concerned. Ifwe are to discuss the approaches taken to this matter, or lackthereof, by current participants in the debate over Supreme Courtappointments, it will be helpful to first briefly discuss the mostprominent approaches to adjudication within the community ofjurisprudential theorists. It should be stressed that these willonly be rough outlines and will focus almost entirely on thissingle question in the philosophy of law.i. Hart's Legal PositivismH.L.A. Hart's The Concept of Law, widely acknowledged as one ofthe most important works on jurisprudential theory ever written,remains the classic explication of the theory known as legalpositivism. Hart's legal positivism is based upon the notion that186 Ronald Dworkin, Taking Rights Seriously (Cambridge:Harvard University Press, 1977), 2.187 Ibid., 3.92law itself is a union of primary and secondary rules. The primaryrules, which are rules of obligation, generally involve"restrictions on the free use of violence, theft anddeception...together with a variety of others imposing onindividuals various duties to perform services or to makecontributions to the common life. u188The existence of only primary rules agreed to by a looseaffiliation of people would be problematic, however. Such ruleswould be uncertain, in that they would not be systematic and theirscope indeterminate, static, in that there would be no precisemeans of adapting, eliminating, or adding rules, and inefficient,owing to constant disputes over the meaning of rules and theabsence of a body vested with the power to make authoritativedecisions as to whether they have been violated.' For a truelegal system to come into being, a scheme of secondary rules,establishing "the ways in which the primary rules may beconclusively ascertained, introduced, eliminated, varied, and thefact of their violation conclusively determined" must therefore bepresent.' The main secondary rules are a "rule of recognition,"which specifies criteria for determining whether a given primaryrule is one supported by the group and its transgression thereforeproperly accompanied by sanctions of some sort, "rules of change,"which describe specified procedures for altering eliminating orcreating primary rules and "rules of adjudication," which identify188 H.L.A. Hart, The Concept of Law (Oxford: OxfordUniversity Press, 1961), 89.189 Ibid., 89-91.190 Ibid., 92.93by whom and by what procedure authoritative determinations will bemade as to whether primary rules have been transgressed.'Hart's theory of adjudication is a consequence of hisconcentration on the concept of rules as the basis of law. Heargues that in the vast majority of cases, judges will be involvedsimply in applying determinate rules contained in statute orprecedent.' That said, however, he rejects the theory of legalformalism, which suggests that the proper approach is to "freezethe meaning of...[a] rule so that its general terms must have thesame meaning in every case where its application is inquestion."" Legal formalism has elsewhere been described as thebelief that "the function of the judge... [is] to discoveranalytically the proper rules and precedents involved and to applythem to the case as first premises... [thereby] deciding the casewith certainty and uniformity. "'94For Hart, legal formalism is a misleading oversimplification.He claims that while the language of statutes and precedents willbe determinative in the vast majority of cases, the open-texture ofall human language, including legal language, will result in casesin which the statute or precedent cannot be applied in thisfashion. Some uncertainty is inherent in "the use of generalclassifying terms in any form of communication concerning matters191 Ibid., 92-94.192 Ibid., 132.193 Ibid., 126.194 Edward A. Purcell Jr., The Crisis of Democratic Theory:Scientific Naturalism and the Problem of Value (Lexington:The University Press of Kentucky, 1973), 75.94of fact."195 Hart asserts that the presence of such open-texturedlanguagemeans that there are, indeed, areas of conduct where muchmust be left to be developed by courts or officials strikinga balance, in the light of circumstances, between competinginterests which vary in weight from case to case. None theless, the life of the law consists to a very large extent inthe guidance both of officials and private individuals bydeterminate rules which, unlike the application of variablestandards do not require from them a fresh judgment fromcase to case.196Hart's theory of adjudication, which concedes that on someoccasions judges must perform a quasi-legislative function, standsas a compromise between strict legal formalism and the school oflegal realism.ii. Legal RealismIn the early 1920s, a group of American legal scholars who cameto be known as the "legal realists" rose to prominence by mountinga frontal attack on the dominant legal formalism of the time.'"The realist movement was inspired by Oliver Wendell Holmes, who, aquarter of a century earlier, had argued that adjudication was notthe process of deductive reasoning described by formalists, butrather entailed a conscious or unconscious decision as to whatwould be the most socially desirable resolution to a legal dispute,a decision which inevitably would be based upon the judge's ownpersonal beliefs. For Holmes, the formalists' mechanicaldescription of judging was illusory and hid the fact that the role195 Hart, 125.196 Ibid., 132.197 Our discussion of legal realism is drawn from Purcell,ch. 5.95of the lawyer really was to predict how courts would rule in acertain case and to advise clients accordingly.'"By the close of the 1920s Holmes and the precepts of legalrealism had attracted a number of adherents, two of the mostprominent being Karl Llewellyn and Jerome Frank. Llewellyn arguedthat abstract legal concepts were simply attempts to impose anorder on a reality which experience had illustrated lacked suchcoherence. Thus, there always would be a gap between the supposedrules in a given case and its actual resolution.'"Legal realism was carried to its logical extreme by Frank.Unlike other realists, Llewellyn among them, who believed legalrules and precedents played at least some role in judicialdecisions, Frank argued that they had no impact at all. Judges, heclaimed, decided cases on the basis of "hunches" and then soughtout favourable rules and precedents to rationalize their rulings.Thus, for Frank, the law relating to a specific subject did notexist until a court had ruled on that matter. 200For legal realists, then, the distinction later drawn by Hartbetween cases which could be decided purely on the basis ofexisting legal rules and precedents and those in which the existingstatute or precedent was open-textured and therefore required thejudge to strike a balance on the basis of what he or she thinks198 Oliver Wendell Holmes Jr., "The Path of the Law," in MaxLerner, ed., The Mind and the Faith of justice Holmes (NewYork: 1943), 72-76. Cited in Purcell, 76.199 Karl N. Llewellyn, "A Realistic Jurisprudence - The NextStep," Columbia Law Review 30 (1930), 443-44. Cited inPurcell, 81-82.200 Jerome Frank, Law and the Modern Mind (New York: 1930).96best for society, is unsatisfactory. Moderate realists would arguethat Hart underestimates the extent to which judges will have to gobeyond the law, while radicals like Frank would suggest that judgesact for the most part as legislatures i miniature, while trying todisguise this fact by obfuscatory references to legal doctrinewhich they believe or pretend to believe serve as the basis fortheir decisions.Dworkinian JurisprudenceWith his 1977 essay collection, Taking Rights Seriously,American jurisprudential theorist Ronald Dworkin began challengingthe theory of legal positivism and Hart's concept of adjudication,which had risen to such prominence after the publication of thelatter's book. Dworkin argues Hart's claim, that the open textureof legal language at times forces judges to act as a legislaturewrit small creating new legal rules, misses an importantdistinction, that of arguments of policy versus arguments ofprinciple 201.According to Dworkin, arguments of policy can be defined asthose "that justify a political decision by showing that thedecision advances or protects some collective goal of the communityas a whole," while those of principle "justify a political decisionby showing that the decision respects or secures some individual orgroup right. "202 While it is completely appropriate for alegislative body to base its decisions on both arguments ofprinciple and policy, Dworkin claims that when judges must decide201 Dworkin, 82.202 Ibid.97"hard cases," rulings can be and are based on matters of principle,rather than policy. If judges were to take into considerationarguments of policy and thus begin to act like legislatures, theiractions would be inappropriate for two reasons. First, decisionson matters of policy can be made more legitimately by legislatures,since they, unlike judges, are elected, and more efficientlybecause the political process is more likely to identify thoseinterests which must be taken into account when making the type ofcompromise which is inherent in decisions based on policyconsiderations 203The second argument in support of judicial decisions based onprinciple is premised on Dworkin's "rights thesis." He claims thatin appealing to principle, judges attempt to discover the rights ofthe parties involved. He or she is discerning existing rights,rather than creating new ones. If a judge acted simply as alegislature endeavouring to reach a decision which he or she feelsis simply the best compromise, the losers in court cases couldargue that they are being punished not because they violated anexisting rule, but rather because a new one had been created by thejudge. By contrast, when the judge discovers existing rights, thevictor in any hard case, be it civil or constitutional, can declarethat he or she had a right to win and the loser cannot claim to bethe victim of failing to meet newly- imposed obligations. 204Before moving on, however, it is important to note that inasserting that there always exists a "right answer," even in hard203 Ibid., 84-86.204 Ibid., 81-84.98cases, Dworkin is not advocating the mechanical legal formalismdiscussed earlier. In fact, he concedes that reasonable lawyersand judges could disagree about legal rights. The adjudicatoryprocess he depicts "describes the questions that judges and lawyersmust put to themselves, but it does not guarantee that they willall give these questions the same answer."'Clearly, demands for more women and aboriginals on the SupremeCourt are premised in part on the belief that personal backgroundand life experience play a role in judging and that women andaboriginal litigants therefore could expect a more sociallyrepresentative Court to be more cognizant of their concerns andexperiences of discrimination. Ultimately, the presence of theseperspectives and sensitivities would be reflected in the Court'sdecisions. The question, then, is the extent to which thebackgrounds and personal views of judges have an impact upon thedecisions they reach. For example, are they completelydeterminative, as legal realists would suggest, or, alternatively,is the task of adjudication one in which the judge searches forexisting principles and legal rights and thus the concept of judgeas legislator is inappropriate, as is argued by Dworkin?It might be claimed that arguments for reform are just that,and that they need not include discussions of jurisprudentialtheory. This view is, to say the least, problematic. Whileadvocates of a more representative Court need not be expected tosystematically develop a theory of adjudication, it behooves them205 Ibid., 81.99to state a position on this matter, even if it is merely areiteration of existing theories. If one fails to articulate aclear vision of what a judge actually does, claims as to who shouldserve in this capacity will be logically untenable at best.It is perhaps ironic that former Supreme Court Justice BerthaWilson's aforementioned speech, "Will Women Judges Really Make aDifference?" is one of the best illustrations of the problemscreated when clear statements of jurisprudential theory are absentfrom a discussion of the composition of a judicial body. JusticeWilson begins by admitting she was somewhat unnerved by the highexpectations among women which greeted her appointment, since sherealized that "[c]hange in the law comes slowly and incrementally"and that "[it responds to changes in society; it seldom initiatesthem. “206 Although as a woman judge she was anxious to respond tosuch societal changes, Wilson wondered about the extent to whichshe "would be constrained in [her] attempts to do so by the natureof judicial office itself."207Wilson next describes the traditional debate over judicialimpartiality and whether it is in reality possible. This isfollowed by a discussion of judicial gender bias studies in theUnited States and programs designed to combat such biasses. 208 Itis at this point that Justice Wilson arrives at the crux of hertopic: in what sense will women judges be able to counteract thegender bias within the law while adhering to precepts of judicial206 Wilson, 507.207 Ibid.208 Ibid., 507-15.100impartiality? Her answer to this question, quoted earlier, issomewhat vague and unsatisfying: "[t]here is no reason why thejudiciary cannot exercise some modest degree of creativity wheremodern insights and life's experience have indicated that the lawnhas gone awry. 209Justice Wilson next recounts the other arguments in favour ofincreased gender representation on the bench, which were discussedat length in the previous chapter. Like Grant and Smith, shestresses the point that judges must endeavour to "enter into theskin of the litigant and make his or her experience part of [their]experience and only when [they] have done that...judge. "no Thisconcept of the judicial role raises more questions than it answers.What is to be accomplished by this imaginative exercise? Moreimportantly, if Grant and Smith are correct in the assertion thatwomen will be better able to conduct this exercise than men in thecase of women litigants, and vice versa, what effect would thisendeavour have on judgments? Might it not be deleterious? FormerJustice Wilson answers the question of "Will Women Judges ReallyMake A Difference?" in the affirmative, yet the rationale for herconclusion is at best vague and leaves a number of importantquestions unanswered.In fairness to Justice Wilson, it must be remembered thatsitting judges, especially Supreme Court judges, face a number ofoperational limitations when addressing public gatherings.Offering detailed descriptions of one's personal views, or even209 Ibid., 516.210 Ibid., 521.101worse, discussing cases currently or recently before the Court, areconsidered unjudicial. Justice Wilson clearly was constrained inthe type of argument she could develop and present. 211Grant and Smith's brief discussion of adjudication is even moretroubling than Justice Wilson's. While outlining their argumentthat women deserve a place on the bench just as they are guaranteedaccess to the legislative process, they claim[i]t is no longer controversial to describe judges as, onoccasion, "making law." For the purposes of this argumentit is not necessary to discuss the extent to which thedescription is accurate, or the extent to which judgesshould determine issues about our fundamental values.Accepting that judges do make law, in some instances withvery little constraint, a comparison between judges andlegislatures becomes apt. [emphasis added] 212This statement is problematic in two respects. First, the authorsappear to assert that the extent of judges' discretion inadjudication is not germane to their overall argument. Yet, as wenoted earlier, a careful description of what judges actually do iscrucial if one is asserting, as they do, that personalcharacteristics play an important role in the adjudicative process.Grant and Smith conclude that women can "make a unique and valuablecontribution to the adjudicative process," yet the statement justcited, combined with their support for Justice Wilson's concept ofputting oneself into the position of the litigant, are the onlydescriptions of the adjudicatory task offered by the authors.There is a second, and more important consequence to Grant and211 The potential for controversy in an address such asWilson's soon became evident, when REAL Women, a sociallyconservative women's group demanded that she be removed fromthe bench as a result of the speech.212 Grant and Smith, 64.102Smith's argument.^In their attempt to compare judges tolegislators, they fail to articulate a concrete vision of thedifference between the two, and, furthermore, assert that doing sois largely unnecessary within the context of their argument. Thisis troubling, given the fact that when judges nullify statutes onthe basis of an entrenched rights document like the Charter, theyeffectively are thwarting the will of the democratically electedrepresentatives of the people. If judges, who are unelected andalmost completely unaccountable, are to undertake such action,there must be something in the nature of adjudication whichdistinguishes it from the legislative and executive function.Judicial review is generally defended on the grounds that thereis something distinctive about the work of a judge. We saw aversion of this argument in Dworkin's delineation between argumentsof policy and principle and his claim that while legislatures mayappropriately base their decisions on both, judges may onlyproperly focus on the latter. In his celebrated 1959 OliverWendell Holmes Lecture at the Harvard Law School, Herbert Wechslermade this point forcefully:The courts have both the title and the duty when a case isproperly before them to review the actions of the otherbranches in the light of constitutional provisions, eventhough the action involves value choices, as invariablyaction does. In doing so, however, they are bound tofunction otherwise than as a naked power organ; theyparticipate as courts of law. This calls for facing howdeterminations of this kind can be asserted to have anylegal quality. The answer, I suggest, inheres primarily inthat they are - or are obliged to be - entirely principled.A principled decision, in the sense that I have in mind, isone that rests on reasons with respect to all the issues inthe case, reasons that in their generality and theirneutrality transcend any immediate result that is involved.When no sufficient reasons of this kind can be assigned foroverturning value choices of the branches of the Government103or of a state, those choices must, of course, survive.213In his book on the political role of the United States SupremeCourt, Alexander Bickel argues that judicial review is necessaryprecisely because it can deal with issues of principle in a waythat legislatures cannot:Our system...calls for the evolution of principle in novelcircumstances, rather than for only its mechanicalapplication. Not merely respect for the role of establishedprinciples but the creative establishment and renewal of acoherent body of principled rules - that is what ourlegislatures have proven themselves ill equipped to give214US.Though there are differences among the arguments of theorists suchas Dworkin, Wechsler and Bickel, and not everyone would agree withthe conclusions they reach about specific cases (they in factdisagree among themselves), it is safe to say that there is acommon thread in all their arguments which has widespreadacceptance. Specifically, if judges are to wield the significantpower which inheres in judicial review, they must be expected toact in a manner distinct from the elected representative whosedecisions can and should be based on considerations such asexpediency and personal perceptions of what would be the optimumcompromise in a given situation.This, then, is the problem with Grant and Smith's rathercavalier comparison of judges and legislatures. Ironically, intheir attempt to illustrate that the courts must be more213 Herbert Wechsler, "Toward Neutral Principles ofConstitutional Law," in Principles, Politics and FundamentalLaw: Selected Essays (Cambridge: Harvard University Press,1961), 27.214 Alexander M. Bickel, The Least Dangerous Branch: TheSupreme Court at the Bar of Politics, Second Edition (NewHaven: Yale University Press, 1962), 25.104representative if they are to best perform their functions,including the interpretation of the Charter, Grant and Smithpresent an argument which, if accepted, might threaten thelegitimacy of judges' performance of the task of judicial review inthe first place.However, in fairness to the authors it might be remarked thattheir comments could be given a different reading. Specifically,it could be argued that their point is that regardless of theactual level of discretion inherent in judicial decision-making,the increased presence of women on the bench will have the otherbenefits they describe. Nonetheless, Grant and Smith's argumentdisplays the dangers inherent in comparing too casually the tasksof judging and legislating.The problems evident in the argument of Grant and Smith alsoare apparent in the MacKay-Bauman reform plan. At the beginning ofthe article, the authors assert that for the purposes of theirstudy, they "shall assume that there is something distinctive aboutthe process of judging that distinguishes it from such otherpolitical processes as legislating or administering. uns Yet,during their discussion of the proposed Appointing Council, MacKayand Bauman claim that[t]he arrival of Charter litigation will reveal in starkterms our judges' stand on fundamental issues of political,social and economic liberty....With this in mind, a processthat puts greater emphasis on ascertaining the policyorientations of prospective appointees [one of the tasks ofthe Appointing Council] should be welcomed.21 6There is no attempt elsewhere in the article to reconcile these two215 MacKay and Bauman, 39.216 Ibid., 83.105statements, nor any indication that such a reconciliation is at allnecessary. Thus, while asserting that there is something specialabout adjudication, the authors' later comments about theimportance of the personal policy views of judges, whose effectsthey appear to set no limits upon, would suggest otherwise.Thus far, we have been discussing the extent to which questionsof jurisprudential theory are addressed ambiguously or ignored bythose advocating a more socially representative Supreme Court.This is not to suggest, however, that the federalism-orientedreform proposals which have emerged over the years have not beenplagued by similar difficulties. Quite the contrary; they too lacka sense of the importance of questions of jurisprudential theory asthey relate to the Court. Furthermore, their language underminesrather than protects the legitimacy of the Court as umpire of thefederal system.A lack of concern for the legitimacy of the Court clearly isevident in the earlier discussed reform proposals of the BritishColumbia and Alberta Governments. Each implies that because all ofits judges are appointed by the federal government, the provincescannot be confident of the Court's impartiality, and thatcountervailing provincial input into the appointment process istherefore required. The Alberta proposal goes so far as to suggestthat there must be an assurance judges understand the views ofprovincial governments.The acceptance of views such as these about the workings of theSupreme Court could cast serious doubt on its legitimacy in itsrole as umpire of the federal system. If it were merely an106institution in which the biasses of federal and provincialappointees must be balanced against one another, the Court wouldcease to be an adjudicatory body and instead become merely a newforum for federal-provincial bargaining. If, as these proposalssuggest, the Court cannot serve as an impartial interpreter of theconstitutional division of powers, and the best that can be hopedfor is that biasses are counterbalanced, it would be difficult tooffer principled reasons in support of its continued performance ofthis particular function.Federal government proposals have not called into question thelegitimacy of the Court in the same manner as provincial reformproposals. However, as was noted earlier, while successive federalproposals have suggested reforms, they have been largely bereft ofprincipled discussions of why change is needed. Furthermore, thefailure in successive proposals to acknowledge that the existenceof an entrenched rights document may necessitate new considerationsabout the appointment process indicates the lack of an awarenessthat the Court's new-found ability to nullify statutes on thegrounds that they conflict with such a document, requires novelconsiderations about the role of judges in our society.B. The Application of the Concept of Representation to a JudicialBody and the Emergence of Ideological ConsiderationsThroughout this thesis, we have been discussing the argumentsof critics who claim that the Supreme Court must be a morerepresentative body either in social terms or in the sense thatboth levels of government must have input into appointments to theCourt. However, while we have analyzed the specific arguments107employed, and the benefits which such advocates claim can bederived, we have not as yet endeavoured to determine theimplications of applying the concept of representation to ajudicial body like the Supreme Court. Specifically, how can theterm be properly applied to a body whose legitimacy is derived fromperceptions of its independence and impartiality as well as thebelief that it is in no way involved in the protection or promotionof the interests of specified societal actors, be they governmentsor social groups?Confusion stems in part from the fact that the term,representative, is complex and carries with it a number ofdifferent meanings. A.H. Birch, for example, claims that the termcommonly is used in three different senses. It may be applied inreference to an agent or delegate "whose function is to protect orif possible advance the interests of the individual or group onwhose behalf it is acting. u217 Used in this context, the termrelates to the function of the representative, rather than themethod of selection or extent of the representative's personaldiscretion in that capacity. Clearly, the role of a judge isincompatible with this type of representation. The adjudicatoryprocess is based upon judicial independence and impartiality, whichwould become functional impossibilities if judges were seen to beadvancing the interests of a specific group in society. Advocatesof a more representative judiciary therefore assert that they arenot using the term in this context.217 A.H. Birch, Representative and Responsible Government:An Essay on the British Constitution (Toronto: University ofToronto Press, 1964), 14.108Second, a body may be considered representative if its membersare freely elected. Obviously, the Supreme Court, whose membersare appointed, cannot be considered representative in this way, noris there a strong movement to elect judges in this country.Furthermore, as Birch notes, even if a given institution's membersare elected, it cannot be said to be representative unless itsmembers have some obligation to promote the interests of theelectors. 218 The only way judges could claim to be promotingconstituent interests in this manner would be in the sense thatthey advance society's interest in an equitable adjudicatoryprocess. If judges were seen to be promoting the specializedinterests of those who elected them, for example a provincialpopulace, the problems associated with the first type ofrepresentation again would be present.Finally, an institution can be called representative if itmirrors the main characteristics of the larger whole of society.Hanna Pitkin has termed this "descriptive representation," andnotes that it concerns not what a representative does, but ratherfocuseson the representative's characteristics, on what he or sheis like, on being something rather than doing something.The representative does not act for others; he "stands for"them, by virtue of a correspondence or connection betweenthem, a resemblance or reflection. In political terms, whatseems important is less what the legislature does than howit is composed.219While they are concentrating on a court rather than a legislature,advocates of a more representative Supreme Court generally assert218 Ibid., 15.219 Hanna Fenichel Pitkin, The Concept of Representation(Berkeley: University of Los Angeles Press, 1967), 61.109that they are using the term in this last fashion.In some respects, of course, the insistence on a descriptivelyrepresentative Court is related to the symbolic element of SupremeCourt appointments. As was noted in the discussion of women's, andmore particularly, ethnocultural groups' demands for representationon the Court, appointments can be viewed as a means of displayingcommitments toward equality and as a designation of who and what isimportant in society. These concerns may have little to do withthe actual activities of a judicial body.Pitkin notes that the features of descriptive representationhave been most clearly formulated by advocates of proportionalrepresentation in legislatures. The fundamental principle behindproportional representation is that the legislature must reflect,as accurately as possible, all the divisions in the electorate sothat different interests will be represented on the basis of theirpresence within the populace. 220 While the main concern ofproportionalists is the composition of the legislature, thisconsideration is related to their interest in its functioning;"they care about its composition precisely because they expect thecomposition to determine the activities."221However, there is a significant caveat to the majority ofproportionalist theorists' concern with descriptive representation.Proportionalists such as John Stuart Mill contrasted the task of arepresentative assembly, whose job is to reflect public opinion,with the actual activities of governing and law-making. Thus, the220 Ibid., 61-63.221 Ibid., 63.110function of a representative assembly is to scrutinize the work ofthe government and make its activities known to the public, ratherthan actually making or executing public policy. 222Advocates of a more representative Supreme Court appear toaccept the first part of the theory of descriptive representationdeveloped by these theorists, but not the second. Like theproportionalists, advocates of a more representative Supreme Courtexpress the belief that various societal interests and socially-based perspectives must be present. However, many assert,explicitly or implicitly, that the Court can and should have apolicy-making role which transcends the responsibilitiesproportionalists claim are the proper domain of the representativeassemblies they advocate.Further, the descriptive representation envisioned forassemblies cannot be translated to a body like the Supreme Court.Given its limited size, it is difficult to imagine how it couldachieve anything approaching mirror representation. The fact thatcitizens possess multiple identities relating to gender, ethnicity,class and region of residence, all in varying combinations, servesonly to complicate matters further. If the Supreme Court is to bea mirror of Canadian society, it will at best be a highly imperfectone.The difficulties in applying the descriptive theory ofrepresentation developed by proportionalist theorists to a smalljudicial body is not the only problem, however. Attempts toengineer a Court which meets specified representational norms to222 Ibid., 63-64.111ensure diverse perspectives derived from varying life experiencescould be considered legitimate only so long as the Court continuedto be perceived as an adjudicatory body acting in the principledway discussed earlier. However, when demands for such arepresentative Court are accompanied by the claim that judges oftenact as mini-legislatures, there exists the potential for theperception that such a Court would be acting as a brokerage, ratherthan adjudicatory body. It might simply be viewed as anotherpolicy-making forum in which all relevant interests should berepresented before compromises are reached. Once again, we seethat attempts at reform conceivably could have the paradoxicaleffect of undermining the legitimacy of the Court rather thanresulting in its improvement.There is a final consideration about representation on theCourt and its operational consequences for actual decisions. Theperception which appears to be evident among some women's advocacygroups that women judges will be more likely to reach decisionsconsistent with these groups' policy objectives, has not been borneout by experience. In a recent Charter case which could fairly becalled a quintessential legal issue pertaining to the interests ofwomen, federal legislation which limited the extent to which a rapevictim could be questioned about her sexual history during a trial,was challenged on the grounds that it violated the rights of theaccused. In its decision, the Supreme Court struck down the so-called "rape-shield" law in an 8-1 ruling. In her dissent, JusticeL'Heureux-Dube argued that the rights of crime victims must beprotected, while the only other woman on the Court, JusticeMcLachlin, wrote for the majority, stressing the need to protect112the rights of the accused.At this point we might be criticized for unfairly extrapolatingfrom a single decision. To make this criticism would be to missthe point entirely. The Court can hear only a limited number ofCharter cases during a given year and thus decisions in individualcases will be extremely important in terms of the way in which thelaw of the Charter is developed. Furthermore, the number of caseswhich have special significance for women, such as the rape-shieldcase, will be even smaller still. Thus, the rulings of specificjudges in particular cases will be of great importance for womenwho believe the Charter can play an important role in righting pastwrongs.It seems clear that demands of some groups for a more sociallyrepresentative Court are based in part on the hope that such aCourt would undertake law reform activities supported by thosecalling for change. However, as the behaviour of Justice McLachlinin the rape- shield case demonstrates, the desired results may notbe achieved simply because members of a certain social group arepresent on the bench. It seems probable that this fact, combinedwith the perception among some of these same critics that the givenpolicy orientations of judges will play a significant role in theirdecisions, will produce a transformation of the discourse on theappointment process and composition of the Supreme Court.Questions of judicial philosophy and ideology likely will supplantconcerns of social representativeness as the focus of the debate.For a variety of reasons, Alan Cairns also argues that in theyears ahead questions of judicial philosophy likely will replaceboth social representativeness and federalism-oriented concerns as113the appropriate focus for the debate over Supreme Courtappointments. First, he asserts that although there is animportant symbolic content, the concentration on region of originand ascriptive characteristics has "always been somewhat of asurrogate for the judicial philosophies to which they are thoughtto be linked. u223 As has just been noted, the fact that thegender of judges clearly has not been the determinate factorwomen's advocacy groups hoped it would be, likely will lead them toemphasize ideology more explicitly than they have in the past.Earlier, we remarked that because the Supreme Court is arelatively small body, it never can be a particularly good mirrorof Canadian society. Cairns suggests that this too will increasethe likelihood that judicial philosophy will become the pre-eminentconsideration in appointments, since a few judicial philosophiescan act as an umbrella for a much larger group of social categorieswhich cannot all receive representation on a nine member Court. 224Peter Russell asserts that as Charter-related cases moveincreasingly to the fore, the ideological views of potentialnominees will become increasingly important. He concludes thatjudges cannot be separated from their own orientations in thisregard and therefore the goal must be the creation of a Courtcharacterized by ideological pluralism and diversity. Russellargues that owing to the great influence Supreme Court judges willhave on individual rights and governmental powers, the public hasa right to some knowledge about a prospective appointee's views on223 Cairns, "Who Should the Judges Be?' 81.224 Ibid.114constitutional principles and the role of the judiciary. 225Cairns, meanwhile, concludes that by concentrating on questions ofjudicial philosophy, we would be "differentiat[ing] candidates interms of criteria that are appropriate to the functions performedby courts in the constitutional division of labour - a functionthat is judicial. H226Some may be troubled by any hint that judicial philosophy andideology should be a consideration in the appointment process,fearing the Court may become a highly politicized body whosemembers are appointed not on the basis of merit, but rather becauseof ideological conformity with the appointing authority. Yet,there is one other benefit to be derived from such considerationsbecoming the main focus of the appointing process. As has beendemonstrated, the federalism, social representativeness andopenness challenges to the Court's legitimacy are characterized byarguments which are often vague, obfuscatory and even internallycontradictory. We would be better served by a debate in which theparticipants are forthright in stating their intentions andobjectives, rather than masking them behind traditional argumentsof federalism and representativeness. This may indeed create thepotential for an increased politicization of the process. However,as we have concluded, it is unlikely that these issues will remainoutside the debate indefinitely. Ultimately it will be healthierfor these matters to be scrutinized by legislators, scholars andthe public, rather than remain artificially submerged, where their225 Russell, "Meech Lake and the Supreme Court," 102-10.226 Cairns, "Who Should the Judges Be?" 81.effects on the process might operate largely undetected.115116Chapter Five - ConclusionFor most of its history, the Supreme Court of Canada hasoperated on the periphery of the Canadian consciousness. Duringthe first seventy-five years of its existence, the Court wassupreme in name only, subordinate to the Judicial Committee of thePrivy Council in Britain, to which its rulings could be appealedand by whose precedents it was bound. In the years following itsdesignation as the nation's highest appellate body in 1949, theCourt's judgments in high-profile division of powers cases receivedpublic attention and its reference decision on theconstitutionality of Prime Minister Trudeau's attempt at unilateralconstitutional reform thrust the Court onto the national politicalstage in a way that had never before been the case. However, suchevents were exceptional and, for the most part, the Court carriedout its responsibilities in relative obscurity.The addition of the Charter of Rights and Freedoms to theConstitution in 1982 clearly altered this situation. For the firsttime, the Court was to determine not only which government had theauthority to enact a given piece of legislation, but also whetheror not certain actions lay beyond the constitutional competence ofany level of government. Thus, in addition to its otherresponsibilities, the Court would now be called upon to renderdecisions on questions of political morality and the legitimate useof state power.Its expanded powers of judicial review, which have led torulings on such questions as abortion, the freedom to promote117hatred against identifiable social groups and even theconstitutionality of Canadian defense policy, have greatly enhancedthe Court's prestige and public awareness of its activities.Analyses of the Court's decisions no longer are only the purview ofpolitical science and law journals; they frequently receivesignificant media attention and are debated in the editorial pagesof the nation's newspapers and on the public airwaves.Appointments to the Court have become the focus of publicspeculation and, once appointed, Justices no longer languish inanonymity in Ottawa; they are profiled in the national print andbroadcast media.For its part, the Supreme Court appears supportive of a greaterpublic awareness of its work. In 1989, the Court for the firsttime released an Annual Report "to inform Canadians on itsoperation and activities beyond the text of its decisions publishedin the Supreme Court Reports. u227 The Report is described as ameans of "mak[ing] more Canadians aware of an institution thattouches so many aspects of their lives. u228 More recently theCourt has taken a far bolder step in promoting public understandingof its workings by authorizing live television transmission of itsproceedings.However, as this thesis has demonstrated, the fact that theCourt's enhanced public profile has been a relatively recentphenomenon should not be taken as evidence that as an institutionit has been completely ignored. On the contrary, there always have227 Supreme Court of Canada: Annual Report, 1988-89, i.228 Ibid.118been those who believe it may have a salutary or contrary influenceon their interests and therefore begin to focus upon the Court.Since its very creation, the Supreme Court's structure, status andcomposition have been the subject of waxing and waning levels ofcontroversy. Even at the time of its founding in 1875, QuebecMembers of Parliament were critical of granting the Court appellatejurisdiction in provincial law matters, arguing that it would beinappropriate for a Court dominated by lawyers trained in thecommon law to overrule civil law judges in the province of Quebec.These critics were joined by a minimal number of Members fromEnglish Canada who criticized the appellate jurisdiction ondifferent grounds, asserting that it violated the federal principleand that there should be a judicial division of powers parallel tothe federal one.Controversy again arose in 1949 when the Supreme Court replacedthe Judicial Committee of the Privy Council as Canada's court oflast resort. Successive Quebec provincial governments beganarticulating the critique that it is a violation of classicalfederalism for the Supreme Court to be the product of a federalstatute and thereby subject to its sole discretion. Thisinjustice, they argued, is compounded by the fact that its members,who act as the arbiters of the federal division of powers, areappointed by only one of the parties to jurisdictional disputes.For much of the period following the abolition of JudicialCommittee appeals, Canadian federalism was characterized byintergovernmental cooperation through the processes of executivefederalism, and, as a result, the Court's role as federal umpirewent into decline. Consequently, the other provinces largely119eschewed the criticisms voiced by Quebec. However, following abreakdown in the relations of the governments of the federation,the Court re-entered division of powers controversies in the 1970s,deciding a number of important cases in favour of the centralgovernment. These rulings, combined with concurrent constitutionalnegotiations, resulted in the question of Supreme Court reformbecoming yet another item on an ever-burgeoning constitutionalagenda. Notably, reform proposals put forward by the provinces inthese years began to voice the classical federalism-basedcriticisms which Quebec had begun to assert three decades earlier.Relatedly, questions of duality and regionalism have been apart of the debate surrounding the Court. A Quebec demand that thedualist nature of the Court, already reflected in statutoryguarantees of three Quebec "seatsll on the Court, be strengthened,has periodically reappeared. In the other provinces, there havebeen continual demands that the Court be representative in regionalterms. A convention to this effect has developed, with itssupporters arguing that regional diversity ensures a moreknowledgeable Court, while detractors complain this either isunnecessary or inappropriate.The presence of the Charter has added an entirely new dimensionto the debate. Its enumeration of a variety of social categoriesrelating to gender, race and ethnicity has played an integral rolein creating demands that the Court be more socially representative.The insistence on such representativeness has taken differentforms, however. Advocates of a more gender balanced judiciary ingeneral and Supreme Court in particular argue that the increasedpresence of women on the bench will perform the symbolic function120of illustrating societal commitments to equality, whileaccomplishing the more significant task of improving the legal andjudicial processes by combatting judicial behaviour and existinglegal principles which are biassed against women.By contrast, those promoting a more diverse Court in terms ofethnocultural background concentrate almost exclusively on thesymbolic, arguing that appointing members of ethnoculturalminorities displays an awareness of the values of the Charter andacknowledges the contributions of members of these groups to thedevelopment of the nation. However, the fact that this debate thusfar has been dominated by symbolic considerations and largelybereft of commentary on the instrumental values which might beachieved by such reform, should not be taken to mean that this willremain the case indefinitely.The discourse on the relationship between aboriginal peoplesand the Supreme Court differs markedly from these first two.Unlike women's groups and ethnocultural organizations, manyaboriginal leaders argue that their peoples' grievances may best besoluble within the context of a separate justice system, ratherthan further integration into the existing one. They assert thecriminal justice system in Canada is culturally alien to aboriginalpeoples and that the liberal assumptions of the Charter areantithetical to their conceptions of justice. Aboriginal demandsfor a parallel justice system have been bolstered by academics whohave studied the matter and by the conclusions of a number ofgovernment inquiries. The question of an aboriginal presence onthe Supreme Court will thus be a consequence of the eventualrelationship which develops between aboriginals and the Canadian121justice system as a whole.In addition to creating novel concerns about the composition ofthe Court, the Charter has led to new considerations about the wayits judges are appointed. Those who concentrate on its role asarbiter of citizen-state relations under the Charter argue that itis inappropriate for the state to have singular control overappointments and thus advocate a more pluralistic and participatorymechanism. This type of reform is advocated not only by proponentsof a more socially representative Court, but also those who believethe existing procedure is overly susceptible to political abuse.However, the presence of the new discourse on the SupremeCourt's composition and the appointment process which has developedsince the entrenchment of the Charter has not meant that pre-existing federalism concerns have disappeared. The Court retainsits role as umpire of the federal system, not to mention the factthat its Charter decisions often will have federalism implications.Consequently, provincial governments will have an interest in theappointment of judges who will allow for some legislative diversitywithin the confines of the Charter.Thus, the debate over the Supreme Court appointment process inthe post-Charter era is dominated by two competing and conflictingdiscourses which are in turn grounded in differing visions of theCourt's primary function. Provincial governments, whichconcentrate on the Court's role as federal umpire, argue it isinappropriate for the federal government to have sole control overappointments and therefore demand input into the process. Bycontrast, those who focus upon the Court's responsibility for theinterpretation of the Charter insist the state already improperly122dominates the process and that what is required is a morepluralistic and participatory mechanism, rather than yet moregovernmental input. These two differing conceptions of the Courtresult in reform proposals insensitive to the interests of oneanother. For example, the reform provisions in the Meech LakeAccord, which was designed to respond to traditional federalismconcerns, in no way acknowledges that the presence of the Charterneed result in novel considerations about the Court's compositionand the manner in which its judges are appointed. Alternatively,such critics as A. Wayne MacKay and Richard Bauman proposeappointment mechanisms which are hostile to the interests ofgovernments in appointments, as well as concerns about regionaldiversity on the Court.The complications for reform engendered by these differingconceptions of the Court are exacerbated by structural problemswithin the debate itself. Meaningful analyses of the SupremeCourt's composition and demands that certain types of people beappointed as judges must include the examination of questions ofjurisprudential theory. More specifically, what is involved whenjudges interpret the provisions of a constitutional document? Whatconstitutes the legitimate performance of this task? Relatedly,the question of how the term, representation, can properly beapplied to the judiciary, whose moral authority and legitimacy area consequence of its perceived independence and impartiality, mustbe answered. By and large, however, the participants in thedebate, be they governments, scholars or advocacy groups, eitherhave ignored these questions or answered them in such a way as toundermine the legitimacy of the very body whose reform they seek.123As a concluding observation, it might be noted that some of theconclusions we have reached about historic debates over SupremeCourt reform can be expressed in an alternative manner. In hisbook, Exit, Voice and Loyalty, Albert 0. Hirschman advances anargument which, though it begins by discussing firms which producegoods for sale to consumers, "will be found to be largely - and, attimes, principally - applicable to organizations.. .that provideservices to their members without direct monetary counterpart. u229Hirschman asserts that if a product or organization should begin todeteriorate, consumers or members will display their displeasure inone of two ways. First, they may "exit" by ceasing to purchase theproduct or discontinuing their membership in the organization.Alternatively, they may exercise the "voice" option and endeavourto convince the management to respond to their concerns by bringingforward their complaints or staging general protests.23°The exit option traditionally is viewed as being part of theeconomic realm, in which market forces are utilized to protectwelfare. By contrast, the voice option is linked to the politicalsphere and involves clear articulation of the need for change,rather than the secret vote of consumers who attempt to extricatethemselves from an existing situation.231 The tendency ofpolitical scientists to ignore the exit option and for economiststo eschew the voice approach is decried by Hirschman, who claims229 Albert 0. Hirschman, Exit, Voice and Loyalty (Cambridge:Harvard University Press, 1970), 3.230 Ibid., 3-4.231 Ibid., 16,30.124that if complex social processes are to be understood, theanalytical tools of both political science and economics must beemployed."The applicability of the exit-voice distinction to ourdiscussion of the Supreme Court may not be immediately apparent.Potential litigants cannot remove themselves unilaterally from theCourt's jurisdiction in the same fashion that a consumer maydiscontinue the purchase of a certain product or a member of anorganization rescind his or her membership. As Hirschman himselfremarks, within the confines of the state, voice may often be theonly option.'However, although there can be no choice between exit and voiceas regards the Supreme Court, the distinction is relevant in termsof the way in which participants in the debate on the Courtexercise the voice option. While some critics demand more inputinto its workings through a more pluralistic, participatoryappointment process and/or the presence of their numbers on theCourt, an approach reminiscent of the voice option, others advocatethe removal of their affairs from its jurisdiction, a tactic moreconsistent with the exit alternative.Most of the participants in the Supreme Court debate have takenthe voice approach. Although they have varying objectives, theprovinces, women's groups and organizations representingethnocultural minorities all stress the need for some type ofinclusion on the Court and in the appointment process. However,232 Ibid., 18.233 Ibid., 33.125there continue to be forces in Quebec, now joined by aboriginalpeoples, who stress disengagement rather than heightenedintegration. 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