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Peter
Cory
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McLachlin
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LaForme
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Brian Dickson
Chief justice rued abortion
ruling, book says
Text based
on Dickson's private papers gives insight into Supreme Court
rulings
By KIRK MAKIN, JUSTICE
REPORTER, , Dec. 5, 2003
Years after he voted to reverse
Henry Morgentaler's 1974 jury acquittal on charges of performing
illegal abortions, chief justice Brian Dickson of the Supreme
Court of Canada began to regret his harsh decision, says a new
book on the late legendary judge.
He stepped down from the bench
in 1990 and died in 1998 at the age of 82.
"In retrospect, it may
not have been the wisest thing to do," chief justice Dickson
is quoted as saying in the book, based on interviews and 200
boxes of private papers.
He was privately horrified
by a defence strategy predicated on Dr. Morgentaler's belief
that an individual can ignore the law if his cause is sufficiently
virtuous, according to the authors of Brian Dickson: A Judge's
Journey .
When Dr. Morgentaler again
came before the court in 1988, chief justice Dickson suddenly
found himself holding the swing vote during a private conference
of the seven judges who heard the case. With his brethren deadlocked
3-3, the book says, chief justice Dickson saw a way to come full
circle.
This time, he voted to strike
down the abortion law. However, he based his decision on the
unconstitutionality of a cumbersome procedure for approving abortions,
allowing him to uphold the acquittal but avoid sanctifying Dr.
Morgentaler's decision to flout the law.
"Dickson now accepted
many of the same arguments that had failed to move him or any
member of the Court in the Morgentaler 1," say the authors,
Ontario Court of Appeal Judge Robert Sharpe and Kent Roach, a
University of Toronto law professor.
The story is one of many drawn
from the trove of private material. Others include disputes over
how broadly to interpret the Charter of Rights and a near-rebellion
that chief justice Dickson was forced to extinguish when a group
of Quebec lower-court judges became incensed about their low
salaries.
The Dickson Papers are housed
in the National Archives of Canada, and will become publicly
accessible in 25 years. However, chief justice Dickson permitted
Judge Sharpe, his former executive legal assistant, to have access.
As his co-author, Prof. Roach, a leading constitutional scholar,
was also given access.
In a preface, the authors spoke
of their anguish about how they ought to deal with memos written
by other judges.
"If every comment or tentative
thought were exposed to public view and scrutiny, discussions
among judges could be inhibited and judicial decision-making
might be adversely affected," they reasoned. "A judge
might well hesitate to explore ideas or test views with his or
her colleagues if no discussion could be kept private."
They said that they elected
to temper discretion with the public right to know.
Lorne Sossin, U of T associate
professor of law and one-time law clerk in the Supreme Court,
predicted yesterday that some judges will be nervous about the
precedent, but most will recognize the importance of demystifying
the court. He said the process of agonizing over rulings, trading
draft opinions and being "wracked by doubt" is an important
dimension of judging.
One of the most nerve-racking
cases the court dealt with involved constitutionality of patriating
the constitution. The book describes chief justice Dickson's
humiliation when then-prime minister Pierre Trudeau condemned
the ruling in a speech at which the chief justice was sitting
in the front row.
Chief justice Dickson later
angrily described the attack as "profoundly political, out
of date and superficial," the book says.
The book reveals a judge who
was well-attuned to public reactions and often plagued by rulings
he came to regret. "I got the feeling occasionally, [Dickson's]
judgments were written to catch the media," former judge
Gerard La Forest remarked to the authors.
In another important case involving
the rights of common-law spouses -- Pettkus vs. Becker -- judge
Dickson instructed a clerk to fine-tune his draft "in light
of comments, favourable and unfavourable," that came after
an earlier ruling had gone against a farm wife.
The repositioning of his argument
worked.
Several judges swung to his
approach -- in spite of a memo from judge Ronald Martland calling
it "palm tree justice."
© 2003 Bell Globemedia
Interactive Inc. All Rights Reserved.
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell