Court Party

Response from Chief Justice McEachern

Chief Justice McEachern's Response No. 35; November 14, 2000 - "The Court Party"

A message asks for comments on two recent news stories: first, the published views of University of Calgary Political Science Professor Ted Morton about the "Court Party"; and second, the direction of the Chief Justice of Canada to law professors not to send their published or unpublished writings on legal matters to the court's law clerks. These are related, controversial matters upon which I can only offer some information.

First, Professor Morton has coined the term "Court Party" to describe unstructured collections of persons with well known agendas who, he suggests, wish to influence the judges of the Supreme Court of Canada (and other judges as well) towards a particular ideology. Generally speaking, these views tend to support a Charter-activist approach to social issues. The so-called "feminist" movement is but one of the leading groups identified by Professor Morton. His view is that these "movements" prefer judicial activism -- bringing controversial cases to the Court-- to the more conventional political or parliamentary approach to social change through legislation. Hence the description "Court Party". No such party, of course, exists in any of the usual forms by which we would usually identify a political party.

There is no doubt that the trend of judicial decisions, led largely but not entirely by the Supreme Court of Canada, has been to expand "Charter rights" and to use the Charter for social purposes. Whether this is what the law really requires, or whether it constitutes, in some cases, an intrusion into the proper role of Parliament and the legislatures is a question that is being much debated at the present time. In some cases, the Court may be doing only what it is expected to do, that is to decide the cases before it. In other cases, some think the Court has gone too far and should leave social reform to elected legislators. On that question I express no opinion because to do so would require me to agree or disagree with some Court decisions, and I should do that only in the context of a case I am required to decide.

I can, however, give an example. In Mrs. Rodriguez's case, I held that a section of the Criminal Code was unconstitutional because it purported to prohibit her from getting assistance to commit suicide when her illness reached the stage when she no longer wished to live. I thought this breached some of her Charter rights. Mine, however, was a dissenting opinion. Both our Court of Appeal and the Supreme Court of Canada, by majorities, upheld the validity of the Criminal Code section. Was I being impermissibly "activist" or was I just deciding the case as I thought it should be decided? Remember, those who say these matters should be left to Parliament would give Mrs. Rodriguez no remedy during her lifetime even if the Charter could be interpreted to give such a right to her.

The judges of the Supreme Court of Canada and all other judges, of course, are fully aware of the views of Professor Morton and others who share his views. Some will regard some judicial decisions as impermissibly "activist", and others will say the judges are just deciding the case before them. It must be expected that judges will continue to decide cases as they think the cases should be decided, and Parliament will always have the last word, if it wishes, either by changing the law, or by exercising the "notwithstanding" clause in the Charter. For a description of this clause, see Chapter 8, section 33 of the Compendium that can be found on the home page of the British Columbia courts at: http://www.courts.gov.bc.ca.

Turning to the second question of professorial influence, there can be no doubt that the Supreme Court relies very heavily upon academic writing. Unlike the lower courts, where academic writings are seldom mentioned, the decisions of the Supreme Court are replete with references to what various professors have said about the subject of the case being decided. In many cases the judges cite more articles than decided cases as authorities for the views they express, even though counsel may not have mentioned the articles in their arguments as the case progressed through the courts. This is a marked change from the former view that a judge should never rely upon the views of a living author because he or she might undergo a change of mind. Reliance upon academic opinion, however, is probably too well entrenched in our law to be avoided.

Law clerks are graduates of law schools who have not yet been called to the bar. Each judge of the Supreme Court of Canada has at least three law clerks to assist in preparing for hearings and in drafting reasons for judgment. This is now the rule in the American federal justice system where the judges have both law clerks and staff lawyers to assist them, but this practice is largely unknown in England. In Canada some provincial superior courts have very few or no law clerks. In British Columbia, most appeal court judges usually share the services of one clerk with another judge, but some judges do not use law clerks at all. In our superior trial court, there is usually one law clerk to assist four or five judges.

Law clerks are not expected to participate in the decisional process. They are intended to be research assistants. One of the job functions of law clerks in the Supreme Court of Canada is to bring relevant academic writings to the attention of the judges because, as already mentioned, counsel do not usually rely on academic writings to support their arguments. They are usually more concerned with the particular facts of their cases and the existing law. More and more, however, the Supreme Court of Canada, and indeed the justices of the Supreme Court of the United States seem to be more influenced by the views of social scientists than by the views of the lower courts or by the arguments of lawyers.

What seems to have happened is that some professors, knowing which cases are pending before the court, have sent some of their published or unpublished writings to law clerks who may be known to them, obviously for the purpose of informing or influencing them. Whether any such information has been passed on to judges by the clerks is not known. If it was, it may have breached the well-known rule that no one should attempt to influence a judge. It must be remembered, however, that published opinions may have been discovered by law clerks anyway because that is one of the things they are expected to do.

It is understood, however, that sending material to law clerks only happened on a very few occasions, and once the practice became known, the Chief Justice acted swiftly in directing the academic community to discontinue sending any material to law clerks. Presumably, this direction will be respected.