C2C: Thinking back, do any particular cases stand out for you, and if so, why?
JM: Over about 14 years, there are a number of cases that stand out. However, two cases I will remember longer. The first is the Rodriguez case. This case involved a woman from Vancouver who wanted doctor-assisted suicide. She was a very elegant litigant. Her argument was a simple one. She wanted to live as long as possible, but when she could no longer continue, she wanted to die. From an emotional and sympathetic view, this case was remarkable. The case was very emotional and the decision was close: 5-4. I was in the majority. Our reasoning was that in this case, constitutional rights were not invaded by the Criminal Code of Canada. There was evidence from Scandinavia that doctor-assisted suicide was subject to abuse. The Supreme Court of Canada was full for the hearing, including those against assisted suicide who were physically handicapped and concerned about the possibility of assisted suicide for the disabled population. The majority answered that the Criminal Code could be amended. It was not a constitutional matter. However, it is not unusual for Parliament not to amend legislation after a Supreme Court of Canada decision, as is the case with this one.
The other significant case for me was the Quebec Secession Reference involving separation by Quebec from Confederation. This had never been assessed as to how or if it was possible. Every province has the right if certain procedures are followed. Some politicians say 50 per cent + 1 is necessary for separation, while others say it’s more like 65 per cent or more, as is often the case in corporate Canada when dealing with fundamental changes to the governance of a corporation. I am not sure this will come up for debate for a long time again.
C2C: Critics of the Court have suggested that several “bad” judgments, such as Delgamuukw and Marshall, etc., were a result of Supreme Court Clerks writing much of these judgments. Some suggest it’s the Clerks who are in many instances very influential in judgments issued. Care to comment?
JM: I think it’s been a myth in my view for many years that Clerks wrote judgments. This is not the case. Certainly not the case in the cases mentioned in your question. Clerks are invaluable for research and points of law they look up, but with very few exceptions, judges write their own judgments. There are probably cases where this hasn’t happened, but I wrote all my decisions and so did McLachlin, Binnie and Iacobucci and others while I was on the bench.
The Marshall case has been misunderstood in my opinion. They talk about a second Marshall case, but this is not true. The original Marshall case was a seven-member court, which I was not on. This case was limited. It held that Natives are entitled to reach a minimum standard of living – to fish out of season. There was an outcry and a second case – a separate application – and it had nothing to do with Marshall. In the second decision, Justice Binnie put some “barbed wire” around what he felt was a misinterpretation in the Marshall case.
Delgamuukw got a lot of publicity because of the oral evidence issue, but the majority on the Court felt that given the circumstances, if you couldn’t look at the oral history of Natives, then there was no evidence at all, so the case would have simply disappeared. Oral history was allowed in to the Court to give a fair hearing to the Natives.
C2C: 2012 is the 30th anniversary of the Canadian Charter of Rights and Freedoms. Any reflections you care to share?
JM: I’ve always felt that the Charter of Rights and Freedoms was a big step forward for individual rights in Canada. When the Charter was first introduced, provincial politicians were opposed to it, such as [then] Premier Blakeney. He felt legislatures were better suited to deal with individual rights than courts. But what ability does one have carrying a sandwich board on Parliament Hill to impact rights? The Charter was the first time Canadians had codified individual rights, and for the first time, they were part of the Constitution. I just don’t think that there is a serious argument to the contrary.
C2C: Section 7 of the Charter guarantees Canadians “life liberty and security of the person.” Do you have any misgivings on the course that section 7 has taken, i.e., omitting economic liberty and narrowing the scope of liberty generally?
JM: It was thought that when the Charter of Rights and Freedoms first came into prominence that section 7 was seen as providing such things as a right to bail; the right of individuals with respect to their freedom. The interpretation is broader than I personally thought it would go. I can’t say that the narrower view that I had would have worked. It would have been more restrictive. Whether it would have put legitimate control on the Constitution is questionable. I don’t see that it developed in a wrong manner even though this wasn’t my interpretation of it when I first saw section 7. A particular case can influence the meaning of section 7. It has been given a more expansive interpretation than you might think upon initially looking at its wording.
C2C: If you had the power to unilaterally amend the Charter of Rights and Freedoms, would you? If so, which section(s) would you delete, add or amend, and why?
JM: That’s a broad question. There is an argument that section 33 of the Charter of Rights and Freedoms (the “notwithstanding clause” that allows federal and provincial governments to override certain Charter rights and freedoms) means that you don’t really have a Constitution; it effectively nullifies the whole Constitution. There is an argument about the validity of section 33, and it has never been used outside Quebec. The chances of it being used today are slight, except in some things where there is strong public opinion, perhaps like child pornography. However, on most issues, I don’t think politicians would want to take the heat for overturning Charter rights. If I had the power, I think I would delete section 33.
C2C: After a long day on the bench, listening to complex constitutional arguments by lawyers and pouring over case law, how did you unwind? Favourite cocktail? Favourite record? Favourite dining destination in Ottawa?
JM: During the summer, we don’t hear a lot of cases. I play golf. There is no outside pressure to get decisions out fast, and you have time as a Supreme Court judge to be reflective. I personally was not aware of any inordinate pressure. I didn’t see this much in others, but Justice Le Dain was a perfectionist and highly intelligent, but he could never in a timely way decide, which caused him anxiety. The problem is that if judges become indecisive, they can’t get their judgments out. In the Supreme Court of Canada, you have eight other judges including yourself. If you are troubled by something, there are lots of other judges to discuss it with. This isn’t so at lower courts. You put serious effort into what you are doing, and then after you make a decision in a case, you have to let it go.
On November 13, 1992, the Honourable John C. (Jack) Major was appointed to the Supreme Court of Canada. In 2006, upon his return to private legal practice, the Honourable Jack Major rejoined the law firm Bennett Jones LLP in Calgary, Alberta, as a consultant.
