BRIAN DICKSON: A JUDGE'S JOURNEY

Vol. 14 No. 3 (March 2004)

BRIAN DICKSON: A JUDGE'S JOURNEY. By Robert J. Sharpe and Kent Roach. Toronto: University of Toronto Press for the Osgoode Society for Canadian Legal History, 2003. 624pp. Cloth $50.00 Ł40.00 ISBN 0-8020-8952-6.

Reviewed By Thomas M.J. Bateman, Department of Political Science, St. Thomas University. bateman@stu.ca

This biography is the latest in a series of studies of Canadian law and jurists published under the auspices of The Osgoode Society for Canadian Legal History. In keeping with other works in the series, it is thorough, detailed, well-written, and informative both for the intelligent general reader and academic specialist. The book is written very much in the spirit of JUDGING BERTHA WILSON (2001), a biography of one of Dickson's colleagues and kindred spirits on the Supreme Court in the 1980s, and another in the Osgoode Society series.

According to the authors, one a recognized and prolific professor of law and the other a legal academic appointed to the bench, Dickson's penultimate position as Chief Justice of the Supreme Court of Canada placed him "at the centre of the transformation of Canadian law and political life" (p.3). This begs the question: Did Dickson produce the transformation or was he swept up in its currents? The book, as this passage may suggest, does not offer a clear answer.

Brian Dickson was a prairie kid, born in Yorkton, Saskatchewan in 1916. His father was a junior bank manager, which meant that the family moved a fair bit, ending up in Winnipeg in the 1930s. It also meant that the family's income was modest but comfortable. Dickson enrolled in law school in Winnipeg and got a practitioner's education. Times were difficult upon graduation, and he was forced to sell insurance for a time before joining the war effort. In battle near Falaise, near the Normandy coast, on a "beautiful summer day" in August 1944, Dickson became the victim of friendly fire in a poorly-coordinated operation combining air and ground forces and lost his right leg.

Substantially recovered from his injuries and now with a young family, Dickson took up a legal career and became a successful and wealthy commercial lawyer in Winnipeg, throwing himself into all sorts of community service at the same time. Commercial law is an unlikely preparation for the bench, since the competence of commercial lawyers is measured in part by their ability to stay out of court-and Dickson was a good commercial lawyer. Nonetheless, his professionalism, reputation, and record of community service did not go unnoticed, and in 1963 he took a position on the Manitoba Court of Queen's Bench, much to the surprise of the Manitoba legal community.

The bench suited him, and he ascended to the Manitoba Court of Appeal and then to the Supreme Court of Canada in 1973. He became Chief Justice in April, 1984.

Dickson's ascent to the top of the Supreme Court of Canada coincided with the Court's foray into the age of the Charter of Rights. A great deal of the Charter bears his imprint. He wrote the decision in 1986 that framed the Court's interpretive approach to section 1 of the Charter, the provision which declares that Charter rights are subject to such reasonable limitations as can be demonstrably justified in a free and democratic society. He wrote one of the opinions in the second MORGENTALER (1988) abortion rights case that attempted a limited, procedurally-oriented invalidation of Canada's abortion law, allowing Parliament room to fashion another law more consistent with the priorities of women seeking abortions. The authors' review of Dickson's private papers reveals that he authored the Court's unanimous, unsigned judgment of the Court that struck down Quebec's unilingual commercial sign law. But the same decision essentially declared as a constitutional principle that Quebec is a distinct society possessing the constitutional room to preserve and promote its particular linguistic character in the Canadian federation.

These were among the most explosive decisions of the Charter era. Dickson's objective was to seek consensus on the Court, to redraft his own opinions to attract the concurrence of colleagues. Occasionally, his papers reveal, his post-hearing ruminations produced an about-face. At all times he tried to write clearly so the intelligent layperson, the trial judge, and the juror could all apply constitutional law consistently, and he was consistently praised for his legal writing.

As Chief Justice Dickson was an administrator of the Court's business. He immediately took command of a court weighed down with a backlog of cases due to the presence on the Court of a few very slow writers, whose delays annoyed colleagues who expected timely responses to their drafts. Illness produced more delays, and certain justices, like Willard Estey, did not resist government invitations to sit on royal commissions, drawing their attention away from their primary responsibilities. A larger problem was that complex Charter issues were before the Court, and settled case law was of little help in disposing of them. The Court, after all, felt irresistible pressure to shake itself from the conservatism and deference of its record on the 1960 Bill of Rights. Dickson himself wrote or concurred in many of the decisions of the pre-Charter era that Charter drafters and legal academics reviled. So Dickson and his colleagues had to think creatively about Charter issues, departing from the legal past while anticipating a cloudy legal future in which the Charter was sure to play a significant part. Not surprisingly, there were hints of reliance upon American solutions to constitutional problems, but the Justices also looked to European experience as well. A definably Canadian rights jurisprudence slowly formed out of the mix.

Among his attributes as Chief, Dickson had a real ability to cajole his colleagues toward consensus and to lead by example. He instituted some American-style procedural efficiencies, such as more expeditious leave application procedures and time limits on oral arguments. Dickson presided over the expansion of intervenors' status in constitutional cases, a reform, he thought, would stray the Court from the formal model of litigation. More to his liking were reforms opening proceedings to the media, allowing entrée to the Court for the odd documentary and providing pre-release access to judgments to improve accurate reporting.

Probably the most prominent theme in the book is how Dickson facilitated Canadian law's movement from an older, formalist model in which law was confined to formulaic adjudication of disputes between individuals, to the new era in which law is viewed as a tool for general social reform. His early decisions reveal a tendency to apply the letter of law positivistically, regardless of the fairness to the parties and in reverence to the common law tradition-follow precedent, decide disputes, dispense equitable justice within the confines of the fundamental principle of the rule of law, defer to the legislative branch.

But Sharpe and Roach are at pains to suggest throughout that Dickson had "progressive views" (p.77) all his life and needed only the correct legal influences to engage them in his decision making. Dickson was the product of a practitioner's legal education in Manitoba and spent his earlier career in isolation from the growing academic ferment in legal education. But his service on the bench introduced him to a second legal education, this time oriented to the academic study of law, a pedagogy that situates law in social and political context. Adjudication and judicial review necessarily possess a policy-making dimension, according to the new pedagogy, and law students are encouraged to pursue these connections. The new paradigm represents a functional approach.

Dickson's second legal education took place while he was on the bench, through the reading of academic analyses of law in submissions to the court and in his own research. His clerks, all of them recent products of contemporary legal education, were of tremendous assistance in this respect. But Dickson remained the bridge between the two worlds. He combined the contextualism of the new approach to law with the reverence for the rule of law - the need for simple, stable rules to guide all and sundry. His military formalism combined with his sensitivity to context in matters ranging from the definition of the "reasonable person" to the reception of new types of evidence in criminal cases to vitiate criminal responsibility. Of the latter, the use of the battered woman's syndrome in R. v. LAVALLEE (1990) is among the most instructive.

So Dickson's "journey", as the book's title indicates, is from an older, staid world of lawyers' law to the new world of academic, functional law in the service of social justice. But, since he was on the journey - neither at his point of departure nor at his destination - tensions abounded. What the authors call a "complex weave" of ideas reconciling individualist and communitarian views of law and the constitution can also be considered unresolved intellectual conflict. Generally, the progressive older Dickson stands in stark contrast to the narrower, more positivist, rule-bound, formalistic early Dickson. But the reader senses that Dickson's overarching concern for the reputation of the Court in the Charter era led him to suppress older instincts and adapt to the interpretive innovation of his younger colleagues and the wider legal community.

The tug of the legal academy on Dickson and the Court suggests a powerful institutional influence on decisional output. While the Court and its processes significantly changed under Dickson's leadership, the ancillary institutional structure - clerks, intervenors, academic legal scholarship - exerted significant influence on Dickson and the Court.

In keeping with the judiciary's notable political role in the Canadian polity, Dickson paid close attention to others' perceptions of the Court. He was an assiduous reader of newspapers and regularly circulated stories to his colleagues. Early on, before Peter Hogg and Allison Bushell (1997) popularized the idea, he averred that courts and legislatures properly engage in a "policy dialogue," suggesting that the Charter submits legislative products to "moral critique" (p.381).

This book has several merits. It is written in a lively narrative and spares the reader long, block quotes legal writers usually find too tempting to resist. It contains some truly dramatic stories of personality clashes. Unforgettable is a 1991 speech by former Prime Minister Pierre Elliott Trudeau at the opening of the Bora Laskin Library at the University of Toronto. Dickson sat in the front row while Trudeau, apparently without prior knowledge of Dickson's attendance, savaged the 1981 Supreme Court of Canada opinion on patriation of the constitution in REFERENCE RE AMENDMENT OF THE CONSTITUTION OF CANADA (also called the PATRIATION REFERENCE). Dickson concurred with the majority opinion which forced Trudeau to negotiate with the provinces before having the British Parliament entrench the Charter and turn the constitution over to Canada. Dickson could only sit in his chair and seethe (pp.277-81). Another tension-filled event occurred when retiring Justice Willard Estey issued an unseemly outburst against his colleagues and the Court upon leaving the bench (pp.427-30).

Sharpe and Roach omit, however, a discussion of the tangled web the Court spun on equality rights. Dickson participated in the signal human rights case of the era, ANDREWS v. LAW SOCIETY OF BRITISH COLUMBIA (1989), an appeal from a decision of a lower court which found that a requirement that lawyers be Canadian citizens violated section 15 of the Charter, but the authors do not mention it. Instead they cite earlier decisions on employment discrimination that reversed pre-Charter decisions applying formalistic definitions of equality to the dissatisfaction of women's groups and cultural minorities. ANDREWS was the first of a series of cases that made s. 15 well-nigh unintelligible, prompting the Court to revisit its interpretive foundations with the intent of clarification.

Also, while the authors indicate that Dickson was highly receptive to legal perspectives represented by his female colleagues - he was apparently talked out of his anger at Chantelle Daigle's calculated contempt for the Court and the rule of law in DAIGLE v. TREMBLAY (1989) by the recently-appointed Beverly McLachlin (pp.389-95) - they note that Bertha Wilson and Claire L'Heureux-Dubé were "coolly received" (p.300) by Dickson and others upon their appointments. Surely this is a matter worth some attention, especially since Supreme Court justices were informally consulted prior to the filling of vacancies on the bench. What, precisely, did Dickson have against these two appointees?

And, is it true that many of Dickson's decisions on the bench are related to his personal experiences? Did he grant high tort awards for pain and suffering because of his own war injury? Were his inclinations toward equal division of marital property at divorce a product of his estimation of his own wife's contribution to his career? Were his pro-environmental decisions a product of his own love of the outdoors? Were his decisions limiting police discretion a consequence of his childhood experience of watching a police officer shoot a cat? These associations make for good narrative, but do they have any other value?

Biographies like this are a welcome development in Canada. One hopes they prompt Canadians to inquire further into the operations of their courts and the people who command them. The authors may not have intended this, but the public education achieved by such books will almost certainly lead to calls for more open and accountable mechanisms for high court appointments. Indeed, Canada's new Prime Minister, Paul Martin, has promised precisely this and will be held to his word this year when his government will be required to appoint a new justice to the Supreme Court to fill the vacancy to be left by Madame Justice Louise Arbour's June, 2004 departure. Most Canadian legal academics oppose parliamentary hearings; they think public hearings are "political" or otherwise unseemly. What role the legal academy will have in such new institutional conditions will be an interesting development to watch.

REFERENCES:

Anderson, Ellen. 2001. JUDGING BERTHA WILSON: LAW AS LARGE AS LIFE. Toronto: University of Toronto Press.

Hogg, Peter, and Bushell, Allison. 1997. "The Charter Dialogue Between Courts and Legislatures: Or Perhaps the Charter Isn't Such a Bad Thing After All." 35 OSGOODE HALL LAW JOURNAL 75-124.

CASE REFERENCES:

ANDREWS v. LAW SOCIETY OF BRITISH COLUMBIA, 1 S.C.R. 143 (1989).

REFERENCE RE AMENDMENT OF THE CONSTITUTION OF CANADA, 125 D.L.R. (3d) 1 (1981).

R. v. LAVALLEE, 1 S.C.R. 852 (1990).

R. v. MORGENTALER, 1 S.C.R. 30 (1988).

TREMBLAY v. DAIGLE, 2 S.C.R. 530 (1989).

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