The Honourable Malcolm Rowe's questionnaire

Under the new Supreme Court of Canada Judicial Appointments Process announced by the Prime Minister on August 2, 2016, any interested and qualified Canadian lawyer or judge could apply for such appointment by completing a questionnaire. The questionnaires were used by the Independent Advisory Board for Supreme Court of Canada Judicial Appointments to review candidates and submit a list of 3 to 5 individuals for consideration by the Prime Minister. Candidates were advised that part of their questionnaire could be made available to the public should they be chosen as the Prime Minister’s nominee.

Below are Parts 3, 4, 5, 6, 7, and 10 of the questionnaire completed by the Honourable Malcolm Rowe (view Bio).


Questionnaire for the Supreme Court of Canada Judicial Appointment Process

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PART 3 - STATUTORY QUALIFICATIONS

Bar Membership(s):

Bars, Call dates, Reason for cessation of bar membership (i.e. resigned, appointed to the bench, other) and date of reinstatement (if applicable).

  • Law Society of Newfoundland and Labrador1978;
  • Law Society of Upper Canada 1986;
  • I ceased to be a member of the Bar upon appointment to the Supreme Court of Newfoundland and Labrador, Trial Division. 1999.
Judicial Experience (if applicable)

(Include all dates of appointment)

  • Supreme Court of Newfoundland and Labrador, Trial Division 1999
  • Court of Appeal of Newfoundland and Labrador 2001
RESIDENCE

(Please confirm the following mandatory requirement statement)

  • The Supreme Court Act requires that all justices shall reside in the National Capital Region or within 40 kilometers thereof. I confirm that I either currently meet this requirement or that if appointed, I will move my residence to the National Capital Region or within 40 kilometers thereof.

PART 4 - LANGUAGE

Please note that in addition to the answers to the questions set out below you may be assessed as to whether you are functionally bilingual

Without further training, are you able to read and understand court materials in:

  • English: Yes
  • French: Yes

Without further training, are you able to discuss legal matters with your colleagues in:

  • English: Yes
  • French: Yes

Without further training, are you able to converse with counsel in court in:

  • English: Yes
  • French: Yes

Without further training, are you able to understand oral submission in court in:

  • English: Yes
  • French: Yes

PART 5 - EDUCATION

Name of institutions, years attended, degree/diploma and year obtained:

  • Memorial University of Newfoundland, 1970-1975, B.Sc., B.A.
  • Osgoode Hall Law School, 1975-1978, LL.B.
Continuing Education:
  • Numerous courses in continuing legal education offered to judges by the National Judicial Institute and the Canadian Institute for the Administration of Justice, on average 2-3 annually.
Academic Awards:
  • Gold medal for Political Science 1975 (Memorial University);
  • Birks medal for student leadership 1975 (Memorial University);
  • Labour law prize 1978 (Osgoode Hall).

PART 6 - PROFESSIONAL AND EMPLOYMENT HISTORY

Please include a chronology of work experience, starting with the most recent and showing employers' names and dates of employment. For legal work, indicate areas of work or specialization with years and, if applicable, indicate if they have changed

Legal Work Experience:
  • Newfoundland and Labrador Court of Appeal 2001-present;
  • Newfoundland and Labrador Supreme Court, Trial Division, 1999-2001;
  • Gowling and Henderson (Ottawa) 1984-1996 (associate, partner);
  • Department of External Affairs 1980-1984 (foreign service officer).
  • House of Assembly, Newfoundland and Labrador, Clerk Assistant 1979-1980
Non-Legal Work Experience:
  • Government of Newfoundland and Labrador, Clerk of the Executive Council and Secretary to Cabinet 1996-1999
Other Professional Experience:

(List all bar associations, legal or judicial-related committees of which you are or have been a member, and give the titles and dates of any offices which you have held in such groups.)

  • Chair Advisory Committee on Federal Judicial Appointments for Newfoundland and Labrador, 2006-2012;
  • Member of Council/Member of the Board of Directors, Canadian Superior Courts Judges'Association 2005-present;
  • Chair International Law Section, Canadian Bar Association 1994-1995.
Pro Bono Activities:
  • Action Canada (leadership development program) advisor, mentor, member National Selection Committee 2002-2016
Teaching and Continuing Education:

(List all legal or judicial educational organizations and activities you have been involved with (e.g. teaching course at a Law Faculty, National Judicial Institute, Canadian Institute for the Administration of Justice, etc).

  • Lecturer University of Ottawa Law School public/constitutional law (with Prof. Jamie Benedickson) 1991-1993
Community and Civic Activities:

(List all organizations of which you are a member and any offices held (with dates).

Honours and Awards:
  • Queen's Counsel 1992

PART 7 - SKILLS ASSESSMENT

1 - List and forward, in separate e-mails for each document, five decisions, legal documents (factums, etc) or publications that you have written that demonstrate your analytical skills, your ability to resolve complex legal problems and your excellence in legal writing. Provide, below, a synopsis of no more than 300 words for each decision/document/publication and explain your reason for selecting it

Synopsis 1:

  • "What is the Constitution of a Province"(with Michael Collins, a clerk of the Newfoundland and Labrador Court of Appeal) in "Provinces", edited by Prof. C Dunn, 3rd ed., 2015, University of Toronto Press. "What is the Constitution of a Province" is a chapter in the leading Political Science text on provincial governments. In it I deal principally with the main constitutional conventions that operate in all provinces, as well as the Government of Canada. Other major topics include quasi-constitutional statutes (e.g. elections legislation), rules for the operation of legislatures and selected jurisprudence, including structural argumentation. The chapter touches briefly on the division of powers with the federal government, but does not deal with the Charter of Rights and Freedoms or with aboriginal and treaty rights. "What is the Constitution of a Province" deals with the wide range of constitutional rules not dealt with in the Constitution Act, 1867 and the Constitution Act, 1982. It is unique in dealing with this range of topics in a single work.

Synopsis 2:

  • R. v. Oxford, 2010 NLCA 45 The judgment was issued "By the Court", but I was the author, with input from the other panelists, Chief Justice Green and former Chief Justice Wells. The case dealt with three main issues: palpable and over-riding errors in findings of fact and in inferences drawn from such findings; joint submissions on sentence; and totality. The decision is the culmination of a sequence of decisions that I wrote on joint submissions, beginning with R. v. Druken, 2006 NLCA 67. It remains the definitive statement by our Court on joint submissions. The decision concludes with a brief discussion of stare decisis.

Synopsis 3:

  • R. v. J.J., 2004 NLCA 81. This case dealt with the use of a sentencing circle for an indigenous offender. It remains the leading authority in this jurisdiction for the use of a sentencing circle. Fallowing a review of jurisprudence from other provinces, a four-part test was set out to determine whether a sentencing circle should be used. This test was then applied to the facts of the case. While it was held that a sentencing circle should not have been used (as the complainant had been effectively coerced to participate) and the sentence imposed was demonstrably unfit in light of the seriousness of the offence, nonetheless the appeal against sentence was dismissed, as the offender had reformed and become a responsible and law-abiding member of his community.

Synopsis 4:

  • Council of Independent Pharmacists v HMTQ (Newfoundland and Labrador) 2013 NLCA 32. The case dealt with whether Cabinet was authorized by legislation to enact regulations for the province's pharma-care program. Government and the owners of small pharmacies were locked in a dispute over dispensing fees. The Pharmaceutical Services Act provided that pharmacies could opt out of a fee arrangement fixed by government. A number of pharmacists gave notice of their intention to opt out. Shortly before the opt out date, Cabinet approved regulations, purportedly to ensure that elderly and indigent persons would not have their supply of medication interrupted. In response, the pharmacists did not opt out, stating that the administrative burden imposed on them if they opted out made that course of action impractical. The pharmacists launched a challenge to the regulations. The structure of the legislation was examined, as were the procedures for ensuring that vulnerable persons would continue, as a practical matter, to receive their prescribed medications. In the result, part of the regulations was held to be intra vires as they constituted a bona fide measure to further a valid purpose of the legislation, being the uninterrupted provision of prescriptions. Part of the regulations was held to be ultra vires as they were not for a bona fide purpose, but rather constituted an artificial impediment to the pharmacists exercising their right to opt out, which right was set out in the legislation and could not be undermined by Cabinet.

Synopsis 5:

  • Newfoundland and Labrador (Consumer Advocate) v. Newfoundland and Labrador (Public Utilities Board) 2015 NLCA 24. This case involved a direct appeal (as per statute) from a decision of the Public Utilities Board (PUB) interpreting an Order in Council which directed that a refund be made from an electricity rate stabilization fund to ratepayers. The issues included: standard of review; whether a true question of jurisdiction existed; the application of the reasonableness standard; and having quashed the PUB decision, whether the issue should be referred back to the PUB or should the Court make a determination. A number of the issues dealt with by the Supreme Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 were addressed in the case.
2- Describe the five (5) most significant cases or matters that you dealt with while in legal practice or as a judge and how you dealt with them:
  • I Would refer you to the decisions referred to immediately above. From my time in practice, the work that was of greatest significance related to resolution of disputes with France and with the European Union (EU) concerning Atlantic fisheries. The dispute with France included arbitration of the maritime boundary around St. Pierre et Miquelon; the arbitral decision was very much in Canada's favour. The dispute with the EU concerning Spanish and Portuguese overfishing on the high seas just outside Canada's 200 mile Exclusive Economic Zone was protracted and complex. One part of the strategy involved creating new (conventional) international law concerning high seas fisheries through the United Nations (UN). Another part involved a robust assertion of our rights at international law to take enforcement action on the high seas, as a temporary response to an emergency situation given the collapse of fish stocks. The crisis that this gave rise to made possible an agreement with the EU that met Canada's conservation goals. I Was involved in this work throughout at the strategic level.

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PART 10 - THE ROLE OF THE JUDICIARY IN CANADA' S LEGAL SYSTEM

The Government of Canada needs to appoint judges with a deep understanding of the judicial role in Canada. In order to provide a more complete basis for evaluation, candidates are asked to offer their insight into broader issues concerning the judiciary and Canada's legal system. For each of the following questions, please provide answers of between 750 and 1000 words.

1. What would you regard as your most significant contribution to the law and the pursuit of justice in Canada?
  • I will address this question in reverse chronological order, having regard to: 1999-present, 1996-99 and 1986-95.
  • In 1999, I was appointed to the Newfoundland and Labrador Supreme Court, Trial Division. As a trial judge, I wrote dozens of decisions. In December 2001, I was appointed to the Court of Appeal. As an appellate judge, I have written scores of decisions. For much of this time, I have dealt with criminal cases. More than any other aspect of criminal law, I have dealt with sentencing, concerning which I have written more than anyone else on the court.
  • Sentencing is often more complex than it seems. There are rules for joint submissions, consecutive and concurrent sentences, adjustment of sentences for totality, among many others. The Supreme Court has made clear that the trial judge has discretion in imposing sentence and deference is to be accorded. My decisions have focused on defining the methodologies for sentencing and determining whether those methodologies have been applied properly.
  • Courts of appeal deal with a wide range of issues. Their jurisdiction is plenary, save for matters assigned to specialized courts, notably the Federal Court and the Tax Court. Thus, I have rendered decisions in cases involving torts, contracts, administrative law, family law, insolvency, municipal institutions, workers compensation, wills and estates, the validity of provincial regulations, the interpretation of Orders in Council, public interest standing, among many others. Since 1999, my most significant contribution to the law and the pursuit of justice has been the decisions that I have rendered.
  • From 1996-99, I served as Secretary to the Cabinet and Clerk of the Executive Council. This position had three components: first, Deputy Minister to the Premier; second, the senior official responsible for the operation of Cabinet; and third, head of the public service. Neither of these is a legal role. During my tenure, I made one significant contribution to the law, a constitutional amendment.
  • In 1997, a crisis arose in the school system. It had deep historical roots. When Newfoundland entered Confederation in 1949, it had no public school system; rather, it had separate systems operated by the major churches. This arrangement was constitutionally protected by Term 17 of the Terms of Union. In 1996, following a referendum, Term 17 was amended, limiting but not eliminating the role of the churches. In 1997, the government and two of the churches reached an impasse in the operation of the reformed system. The government decided that a public education system was needed. A further referendum was held in 1997 to abolish the denominational system in favour of a public system. Under the direction of the Premier, as head of the public service, I coordinated efforts to achieve the constitutional amendment to Term 17, which was approved by the Newfoundland and Labrador legislature and Parliament in 1998.
  • In 1984, I left the Foreign Service and entered private legal practice at Gowling and Henderson in Ottawa. I served as junior to Brian Crane, QC assisting him in preparing applications for leave to appeal to the Supreme Court of Canada. In 1986, on behalf of Hon. John Crosbie, Q. C., I became part of a team dealing with disputes between Canada and France concerning a 1972 fisheries treaty and also the maritime boundary around St. Pierre and Miquelon. The team was led by Yves Fortier, QC. We negotiated an interim fisheries agreement with France and a treaty to send the maritime boundary dispute to arbitration. I then joined the litigation team in the boundary arbitration as junior to Yves Fortier, QC and Ian Binnie, QC. Following the boundary decision in 1992, I worked with Roger Tasse, QC to negotiate a further fisheries agreements with France covering the 1972 treaty and also shared fish resources around St. Pierre and Miquelon.
  • Overlapping this, starting in 1989, I joined a team seeking to end over fishing by Spanish and Portuguese vessels outside Canada's 200 mile limit. This team was led initially by Ambassador Alan Beesley, QC. He and I published articles outlining Canada's position under international law. We also led efforts by Canada to launch negotiations for a new UN convention on high seas fisheries (to complement the Law of the Sea Convention). With Ambassador Beesley's retirement, I continued to work on the new UN convention, as well as initiatives in the UN Food and Agriculture Organization and negotiations with the EU. By 1994, matters had reached a crisis with the collapse in Canada's Atlantic fishery. Under the direction of Hon. Brian Tobin, I formulated the strategy for the ''turbot war", that included the arrest of a Spanish vessel on the high seas.
  • Complex legal issues were involved, including a reservation to Canada’s accession to the jurisdiction of the International Court of Justice (ICJ) in the Hague.
  • I participated throughout the negotiations that led to the end of the ''turbot war'' and the agreement at the UN for a new convention on high seas fisheries. The final chapter was a successful defence by Canada against Spain in the ICJ (on jurisdictional grounds) of a claim relating to the "turbot war''. By then head of the provincial public service, I served in the Hague as advisor to Canada's litigation team.
  • Thus, from 1986-95, I played an important role in advancing Canada's interests in its Atlantic fisheries, through the application and development of international law. During this period, I regularly worked in a francophone environment. Around 2004, I was tested and received an exemption for written comprehension. In August 2016, after a long absence, I attended an immersion course in French. My teachers, Isabelle Duval and Louis Gauthier, prepared a report on my ability, dated August 12, 2016. It is available from the Judges' Language Training Program of the Office of the Commissioner for Federal Judicial Affairs.
2. How has your experience provided you with insight into the variety and diversity of Canadians and their unique perspectives?
  • I gained my greatest insight into diversity in Canada through my work over 14 years (2002-16) with Action Canada. This program had as its goal development of leaders for the future. Each year, up to 20 young Canadians (average age around 30) participated in a 10 month intensive program to enhance their skills, broaden their knowledge of the country and deepen their commitment to contribute to its future. The program was funded by Heritage Canada and private donors.
  • Action Canada involved (most years) five conferences, in Atlantic Canada, Quebec, northern Canada, Vancouver (the program's home base) and a final conference in Ottawa. Each conference included achieving a better understanding of the region where it was held. It was structured around interaction with senior persons in government (federal, provincial and municipal), business, academia, the arts, the media, environmental groups and non-profit organizations. In most instances, the conference dealt with indigenous peoples in the region.
  • I was involved in Action Canada from its inception until the decision early this year to conduct a major review to consider future directions. Throughout much of the 14 years, I served in three capacities: member of the National Selection Committee, advisor on the operation of government, law & public policy; and, as mentor to Fellows. In all, more than 150 young persons went through the program.
  • In the National Selection Committee, our goal was to choose outstanding candidates, but also to make choices that mirrored the diversity of Canada. There was balance by gender. There was a significant number of francophones. Almost always there was at least one indigenous person. Ethnic backgrounds were highly diverse, many Fellows being either immigrants or the children of immigrants, especially from Vancouver and Toronto.
  • In all, I attended about 50 Action Canada conferences across Canada. While the focus was on the Fellows, too gained a broader understanding of our country. I did so not for one year ... as was the case for the Fellows ... but over 14years. Each year my attendance at Action Canada conferences took up nearly a month. Thus, I spent about one year in total traveling throughout Canada, meeting and interacting with a wide variety of senior persons from a multiplicity of backgrounds, as well as many hundreds of ordinary residents.
  • This was valuable for me to understand the circumstances of persons outside the three places in which I have studied or worked: St. John's, Toronto and Ottawa. Three perspectives were of greatest value. First, the francophone reality in Quebec and outside Quebec. Second, the situation of First Nations and Inuit (less so Metis), both on their traditional lands and in urban areas. Third, the differences among major metropolitan areas, notably Quebec City, Montreal, Ottawa/Hull, Toronto, Winnipeg, Calgary and Vancouver.
  • My deepest sense of the country came from being in the North, in Nunavut, Yukon, the Northwest Territories, Haida Gwaii and Nunatsiavut (Labrador). Listening to Inuit elders in Resolute Bay, Kugluktuk and Pangnirtung or First Nations leaders, such as the seasoned Guujaww in Skidegate (Haida Gwaii) or the young Justin Ferbey in Carcross (Yukon), gives an insight difficult to obtain otherwise. Similarly, discussing problems of indigenous people in places like Vancouver and Winnipeg provides other important perspectives.
  • In many ways, the most valuable source of insight into the diversity of Canadians arose from the Action Canada Fellows themselves. What was it like coming from Rwanda or the Punjab as a young person? What was it like being a non-status Indian in Saskatoon or being Metis in Winnipeg? How do young Quebecois see their society and the rest of Canada? What challenges face young leaders in the arts or in scientific research? What impediments face young entrepreneurs in a tech start up? How do young journalists deal with the decline of print and broadcast media? Is the public service seen as a meaningful career? Do young lawyers educated in the post-Charter world see their role differently? What is the future of the trade union movement? What expectations and aspirations do young women have with the many demands of career and, possibility, family? What are the issues now for gays and lesbiens? Are young physicians seeing their role differently than an earlier generation? What’s it like operating a communications business in both Canada and China? In many conversations over 14 years, I learned much about Canada.
  • Finally, I have a deep knowledge of my own province. I have been in almost every community ... including in Labrador ... and have spoken with persons from all backgrounds and walks of life. While I was born in St. John's, my father was brought up in Seldom, on Fogo Island. He began work as an inshore fisherman. My mother was from another small fishing community, Lamaline. As a child I spent part of each summer with my grandparents in these communities. When first I visited, Seldom had no roads and no electricity. In both villages, I saw hard manual labour, financial uncertainty and sometimes want, as well as a deep sense of community.
  • It was my good fortune to be born a Newfoundlander four years after Confederation. I have watched as my province progressed from a poor and isolated new member of the Canadian family to become more prosperous and well integrated, while remaining a unique part of Canada. I have come to understand through being head of the provincial public service and through my travels throughout the province the serious challenges that people continue to face, none more so than First Nations and Inuit in Labrador.
  • From cultural, historic and economic perspectives I know my own province well. I also understand how it relates to the rest of Canada. I lived for almost 20 years in Ottawa and Toronto. In recent years, I have traveled extensively throughout Canada. Newfoundland and Labrador is the part of Canada that I will always know best, but all of Canada is my home.
3. Describe the appropriate role of a judge in a constitutional democracy
  • The role of a judge has common elements at all levels, but there are major differences in what the three levels of courts do in practice. There are also differences as to the roles of the courts depending on the area of the law being dealt with.
  • First, I will deal with the level of the court. Trial judges are very largely occupied with hearing evidence and finding facts, then applying settled law to the facts as found. Court of appeal judges are mainly occupied in deciding whether errors (of law or principle) have been made by trial judges. In so doing, they seek to maintain consistency in the statement and application of the law in their jurisdiction. From time to time, they also reformulate the law
  • The Supreme Court is not, primarily, a court of correction. Rather, the role of the Court is to make definitive statements of the law which are then applied by trial judges and courts of appeal. Through the leave to appeal process, the Court chooses areas of the law in which it wishes to make a definitive statement. Thus, the Supreme Court judges ordinarily make law, rather than simply applying it. The Court deals more with constitutional, public law and criminal matters, as well as aboriginal and treaty rights and less with private law. Nonetheless, it remains important for the Court to tum its attention to private law, especially where jurisprudence among the courts of appeal is inconsistent. A further responsibility is to serve as the final court of appeal on matters relating to Quebec's Civil Code. Finally, for issues of over-arching significance for the country, the Court provides an authoritative decision that only it can provide.
  • I turn now to differences in the role of judges from the perspective of different areas of the law. Judges have a unique role as regards the common law, as it is judge-made. Thus, it is our role to adapt the common law to novel facts and changes in society. This can be contrasted with the role of judges concerning the interpretation of statutes. Applying the proper methodology, the role of judges is to give effect to the will of the legislature, as the making of statute law is the role of elected representatives. The Civil Code does not conform to this common law paradigm and must be dealt with in the structure of analysis of the civilian system.
  • The role of judges as regards criminal law involves statute law (mainly the Criminal Code), common law (e.g. mens rea) and the Legal Rights guaranteed by sections 7-14 of the Charter. I have addressed common law and statute law. I turn now to the Charter.
  • The Charter is an affirmation of those rights and liberties that are to be defended against infringement by the state. Judges decide whether such infringement has occurred and, if so, what remedy should follow. This is a profound change in the role of judges. In the past 34 years, Canadians have come to accept and embrace this enhanced role for judges. The wisdom and well-founded principles that have informed this role in the jurisprudence of the Supreme Court reflect favourably on our country. Charter interpretation will always be a work in progress, albeit one in which foundational concepts that have been set out should be maintained.
  • In addressing the role of judges vis-a-vis aboriginal and treaty rights, one should begin by recognizing that these rights are sui generis. Conceptually, they are distinct, albeit they must be given practical effect in the context of other areas of the law. The historical context should inform decisions related to these rights, as should the realities today of Indigenous peoples, both on and off their traditional lands. Concerning foundational issues (e.g. inherent right to self-government), the Supreme Court has chosen to seek to encourage, facilitate and guide governments and indigenous peoples to give full expression to aboriginal and treaty rights, rather than the Court making definitive statements. Doing so prematurely could undermine efforts toward nation to nation resolution of issues directed to the goal of reconciliation. Development of the law, including indigenous law, will be a process with many steps. This does not detract from the need to continue to develop and apply the law relating to such topics as the interpretation and application of treaties, as well as land claims and the protection of aboriginal rights in lands subject to a claim. Thus, in many ways, the role of judges differs as regards aboriginal and treaty rights.
  • The division of powers between the federal and provincial governments involves issues as old as Confederation. Much of the jurisprudence that still governs is from the period when the Judicial Committee of the Privy Council (JCPC) was the final court of appeal for Canada.
  • Among the goals of stare decisis are predictability and stability in the law. At the same time, we have embraced the idea (ironically initially stated by the JCPC) that ''the constitution is a living tree". Relatively few recent cases deal with the division of powers. (The securities legislation reference is an exception.) Judges have a role in such cases that requires them to be mindful of changes in society (often driven by technology) that can mean that to be effective regulation must be at the federal level. Is what Viscount Haldane wrote a century ago how we should determine whether actions of the federal or provincial governments are within or beyond their jurisdiction? In this regard, judges should have regard to changes in the role of governments relating especially to the economy and technology in dealing with such issues. On occasion, revisiting the division of powers might well induce governments to pursue cooperative federalism, which is often beneficial.
  • Finally, I would note the role of judges as guardians against the improper use of authority conferred by the legislature on the executive or a regulatory authority. It is fundamental that a citizen can seek redress against the improper use of authority. This is largely a matter of administrative law. In this role the judge should respect the proper exercise authority by the executive, e.g. a Minister, or a regulatory authority, while not hesitating to quash or require remedial action where such authority has not properly been exercised. This is necessary to uphold the rule oflaw.
4. Who is the audience for Supreme Court of Canada decisions?
  • The audience for a Supreme Court of Canada decision depends on the issues in dispute, the impact on the parties and the implications for others of general statements of law contained in the decision. Thus, the audience is contextual.
  • The most limited audience tends to be when the Court disposes of an appeal as of right in a criminal case. Frequently, the decision is based on the application of settled law in the circumstances of the case. Accordingly, it has significance only for those directly involved.
  • Private law issues can have a limited or a wider audience. A decision relating to product liability may have significant effects for the parties, while the general statement of the law in such a decision may have broad impacts for other manufacturers and their insurers. A decision whether a life form can be patented, nominally an issue of private law, is one with profound societal implications and, thus, would have a wider and more diverse audience.
  • Criminal law issues can relate to the Criminal Code (and other statutes), relevant provisions of the Charter or the common law. Criminal law is multifaceted and can be complex. The many counsel and judges who are engaged in criminal law matters are acutely attuned to guidance from the Supreme Court. Criminal law will remain one of the most closely watched areas of the Court's jurisprudence, given the large number of criminal cases that are always underway and the relatively frequent restatements of law that occur. Beyond the Bar & Bench, there are, of course, the accused, those affected by crime and various advocacy groups. As well, journalists have found that the public has an appetite for reporting on criminal matters.
  • Public law issues span a wide spectrum. Many involve deciding whether authority conferred by the legislature on the executive or regulators has been exercised properly. Ensuring that such authority is properly exercised is part of the rule of law. Many administrative law decisions relate to narrow matters, obscure to a broader audience. Others, such as environmental regulation and the granting of permits for development, can attract wide attention as they can affect major investments and employment opportunities, as well as having significant implications for environmental quality and land use. There can also be an overlay with aboriginal and treaty rights.
  • Aboriginal & treaty rights are sui generis. They are of unique importance for indigenous peoples and have significance for the whole country. Issues relating the Indian Act are becoming of lesser significance. Rather, the actions (or failure to act) of the federal and provincial governments having regard to aboriginal and treaty rights are greater significance. Increasingly, recognition of indigenous law and the authority of Indigenous self-governments will be subjects for the Court. The primary audience for such Supreme Court decisions is comprised of Indigenous peoples and the federal and provincial governments.
  • A secondary audience is comprised of leaders in the economy, academia, the arts, the media and NGO's. The process of reconciliation will be aided greatly by a better understanding by the broad public of the Court's decisions on aboriginal and treaty rights.
  • Decisions by the Court concerning the division of powers between the federal and provincial governments are of enduring significance, but have been relatively uncommon in recent years (the reference on securities regulation is a notable exception). The audience for such decisions is the governments themselves, as well as parties directly affected. A major shift in the division of powers in a politically sensitive area, e.g. social policy, would attract wide public attention.
  • Charter issues span the range dealt with in Sections 1-34 of the Constitution Act, 1982. The Fundamental Freedoms in s.2 tend to be dealt with as a "shield" against unwanted regulation, e.g. freedom of association and trade unions. The audience is largely the group seeking to strike down the regulatory measure in question. Legal Rights in s.7-14 in the main relate to criminal law (though s.7 has been given a wider scope). Equality Rights in s.15 have a variety of audiences, depending on the group that says its equality rights have been infringed. However, given the importance of such decisions for how Canadian society sees itself, the audience can readily be the broad public. As for Official Languages and Minority Language Rights, the audience tends to be minority francophone communities seeking services in their language.
  • Supreme Court decisions involving structural argumentation are rare, most arising from a reference to the Court. Two prominent cases are the Patriation Reference, [1981] 1 S.C.R. 753 and the Quebec Secession Reference, [1998] 2 S.C.R 3. In the former, the issue was the degree of provincial support that was needed, as a matter of law and/or convention, for the federal government to call upon the British Parliament to amend (what was then a UK statute) the British North America Act. In the latter, the issue was whether and if so in what circumstances Quebec might secede from Canada. These were existential issues for Canada. The audience was the broadest possible, albeit understanding of the decisions by many would have been limited. Nonetheless, most Canadians know that the Court had decided issues vital to Canada's future.
5. To what extent does the role of a Supreme Court of Canada Justice allow for the reconciliation of the need to provide guidance on legal questions of importance to the legal system as a whole with the specific facts of a case which might appear to lead to an unjust result for a party?
  • Most decisions of the Supreme Court serve the dual function of providing a definitive statement of the law and also doing justice according to law in the immediate dispute. (In criminal appeals as of right, often the purpose is limited to doing justice in the immediate dispute.) The dispute between the parties offers a platform for the Court to speak authoritatively as to the law on issues that warrant such a statement. The Court having set out a general statement of relevant law, it then has to apply the law to the facts of the case. One would expect that a just result would follow from the proper application of the law to the facts of a given case. Where the court is giving effect to the Charter or developing the common law, it has considerable leeway in decision-making. The Court's role is more constrained as regards decisions of the legislature and of the executive, e.g. a Minister.
  • The legislature may have enacted provisions of a statute that give rise in a given case to a sense of harshness or unfairness. The Supreme Court, like any court, looks to the rules of statutory interpretation. As well, where circumstances indicate, the Court will consider whether the statutory provisions are constitutional, having regard to the Charter. Beyond this, it is the duty of the Court to give effect to the decision of the legislature. Similarly, concerning a decision of the executive, if it is accordance with law, then the Court has no role to substitute its view of the public good for that, for example, of a Minister. Each branch of government has a role that should be respected by the others, under the rule of law.
  • In its role as the ultimate guardian of the rule of law, the Court is required to give authoritative answers to questions like the following: What authority appertains to the federal government and what to provincial governments? When can one level of government legally exercise its jurisdiction notwithstanding that in so doing it encroaches on the jurisdiction of the other? What are the limits of state conduct established by the Charter? Seen another way, what rights are held by individuals or groups that, ordinarily, cannot be derogated from by government? In what circumstances would such derogation be warranted, under Section 1 of the Charter? Where issues arise critical to the country that require legal clarification, what guides exist for governments to act, examples being the Patriation Reference (1982) and Secession Reference (1995)?
  • A separate body of jurisprudence has arisen in the context of s.35 of the Constitution Act, 1982. Aboriginal and treaty rights, protected by s.35(1), are sui generis. They are being recognized and affirmed in ways that are not yet fully defined. On issues such as the inherent right to self-government and indigenous law, the Court has a unique role with a different dynamic, less engaged in formulating definitive statements, more in setting out guide posts for on-going negotiations between governments and indigenous peoples. The Court's role will almost certainly evolve as part of a broad effort to achieve reconciliation. This will occur while the law relating to treaties, as well as aboriginal title will continue to develop with the jurisprudence.
  • The Supreme Court maintains and develops the structure of law in Canada. Stability and predictability are important to maintain that structure. But, adaptation to changes in society, including changes in shared goals, is critical to the law's development. It is important to operate from first principles, while also considering practical results. It is no less important to eschew ideological positions. Should the Court lead or mirror a shared sense of justice? The answer is, of course, both. Generally, it should lead when the time is ripe to do so, having regard to the needs and aspirations of Canadians.

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