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“It’s the law!” What does that mean? If the law is “broken,” especially the criminal law, then there may be a penalty, such as a fine or jail time, or community service, or conditional release. But who makes the law? Is it the government? How can a legislature draw clear lines, for example, in imposing individual responsibility?

Consider a fifteen-year-old victim of school bullying. He has “had enough.” He takes his father’s gun from a locked closet, loads it, and goes to school, where he shoots and seriously wounds one of his bullies. He is apprehended and charged. But how is he to be tried and, if found guilty, sentenced? Is he to be treated as a young offender or as an adult? If convicted, will he have a record that will follow him through high school and university, and into the job market? Is it really enough to say that a court will make the decisions?

The central issue explored in Youth and the Law is how a court makes such decisions. We will find that, like most laws intended to carry forward important public policy, those relating to young offenders significantly depend upon the courts to give such policy meaning in specific applications. Public policy has not varied for decades: protect and guide the young — and, at the same time, protect society. How is a court to interpret this policy in legal decisions? After all, isn’t the only real meaning of the law how it is applied in specific cases?

The several thousand courts in Canada operate under certain principles or guidelines. A primary source of those principles is the Supreme Court of Canada. That is our jumping-off point: specific cases decided by that final arbiter, the Supreme Court of Canada. It may take five or more years for the Supreme Court to hear and decide an appeal. Yet, once the Supreme Court decides the case, it becomes the law. The majority decision of the nine justices of the Supreme Court is binding not only on the parties to the case, but on all people living in this country. The Court’s ruling is the law of the land. It binds lower courts, legislatures, citizens, and residents of Canada. Only with considerable difficulty can a legislature overturn a Supreme Court ruling.

The Court generally does not make law; rather, it interprets the law in a specific case. In doing so, the lower court’s findings are reviewed, and the Court then applies those findings to its own interpretation of the law. The parties to a case get an answer to their conflict: yes, no, or maybe. Sometimes the case is returned to the lower court for further proceedings on issues outlined but not resolved by the Court. For the most part, the parties are not interested in much else other than an answer.

The decision that is binding on the nation is how the Court explains itself — how it defines the issues and its reasoning in bringing them to conclusion. In this book, every effort has been made to present the Court’s reasoning objectively and clearly. Readers will be given citations to access the Court’s decisions online and will be left to critique judgments.

Let there be no doubt that public opinion can and does play a role in shaping law enforcement policy. Occasionally, if a Supreme Court decision is seen as moving too far from public acceptance, the government may decide that the decision should be clarified or redefined by new law. This is what happened when the Young Offenders Act was recast as the Youth Criminal Justice Act, which exposes youth offenders to adult sentences.

Still, both the Court and the legislature must operate in the context of the Charter of Rights and Freedoms, part of the Constitution of Canada and, as such, the supreme law of the nation. This is partly what is meant by Canada being a nation of law. The Charter, enacted in 1982, can be seen as a firewall against popular sentiment. For example, the Charter tends to inhibit any government action that limits the rights of minority groups, such as the incarceration of Japanese-Canadians during the Second World War.

This book presents many case studies that focus on specific situations applied to the Charter. Through these decisions, we become aware of our responsibilities and our rights as citizens. And we see, as the Supreme Court must see, that process never ends. New cases, reflecting new facts, will continue to be presented, and their outcomes will be measured against the law, both constitutional and statutory.

Who Are the Judges?

A few words must be said about the judges (or justices, as Supreme Court of Canada judges are called). Who are they? How are they chosen? How do they go about coming to decisions? The answer to these questions may help us better understand the decisions that we will be examining.

In 1989, Beverley McLachlin, then chief justice of British Columbia, received a telephone call from the prime minister of Canada. He asked if she would consider a new position: that of a justice of the Supreme Court of Canada.

It was within the power of the prime minister, accepted by his Cabinet, to offer the position. The appointment of a justice of the Supreme Court of Canada did not have to go through parliamentary committee or parliamentary consent, as such — a process enormously different from that of the United States where the president nominates and the Senate, following hearing, either gives the nomination a stamp of approval or rejection. (If the Senate rejects, then the candidacy of that person comes to an end.)

Justice McLachlin thanked the prime minister, accepted his offer, and became a justice of the Supreme Court of Canada. On January 7, 2000, the prime minister offered Justice McLachlin the position of chief justice of the Supreme Court, and she accepted.

There are nine justices who make up the Supreme Court of Canada. The conditions for their appointment are few, but they are important. They are appointed through the prime minister and the Governor in Council. In this regard, the “pool” for appointment by law is comprised of superior court judges or barristers with at least ten years in practice in a province or territory.

Once named to the Supreme Court, a justice cannot be removed from office so long as the justice carries out her/his duties in accordance with the law. But, at the age of seventy-five, there is forced retirement. (However, many retired justices are called back to serve in chairing special commissions.) A serving justice can only be removed from office for bad conduct or incapacity (such as illness).

By law, the prime minister is required to appoint three justices from Quebec. By tradition, the prime minister also appoints three justices from Ontario, two from the West, and one from Atlantic Canada.

How the prime minister goes about selecting a justice for the Supreme Court, given the broad limits described, is for the prime minister to determine. In 2012, Prime Minister Stephen Harper set new guidelines. He named a panel of five members of the House of Commons: three Conservatives (the prime minister’s governing party), one New Democrat, and one Liberal. Their task was to review a list of qualified candidates put forward by the federal justice minister in consultation with the prime minister, the chief justice of the Supreme Court of Canada, the chief justice of Quebec (where the next justice was to be selected), the Attorney General of Quebec, and provincial and territorial bar associations (as well as public suggestions).

The panel was instructed to submit a list of three recommended candidates — unranked — to the prime minister and he would select one from that list. A public hearing before a special parliamentary committee would be held before the prime minister finalized the appointment.

The first justice selected through the process described above was Richard Wagner, who was a long-time trial lawyer before becoming a justice of the Quebec Court of Appeal. In an interview with the Globe and Mail, Justice Wagner said, “I might surprise you, but I liked the [hearing] process. There is nothing to hide. I think a judge should follow the directions of society, and that means to explain to citizens what we do, how we do it, and why we do it. I think it’s fair and it’s reasonable.”

A central concern, said Justice Wagner, is ensuring access to the justice system for all Canadians.

Some Facts

On the whole, it can be said that justices of the Supreme Court of Canada historically do not like to talk about themselves. But, there are some facts that may give rise to questions going to the makeup of the Court:

 There have been no persons “of colour” appointed to the Supreme Court of Canada.

 There have been no persons from among the “first peoples” (First Nations, Métis, and Inuit) appointed to the Supreme Court of Canada.

The fact is that white men, drawn from an elite part of the legal profession, constituted the “pool” from which justices of the Supreme Court of Canada were drawn — at least until 1982. In that year — at the time the Charter of Rights and Freedoms, an important part of the Constitution of Canada, came into effect — the prime minister named the first woman to the Supreme Court: Bertha Wilson. She had emigrated to Canada with her husband John, a Presbyterian minister in Scotland, in 1949.

Justice Wilson had received an M.A. in philosophy at the University of Aberdeen. Once in Canada, she applied for admission to the law program at Dalhousie University in Halifax. She recalled an interview with the dean of the law school, and chuckled about it later. The dean advised her to “go home and take up crocheting.” She didn’t. She entered the Dalhousie law program in 1955 and was called to the Nova Scotia Bar after graduation.

In 1959, Justice Wilson moved to Toronto where she found employment with a leading law firm and later became head of research for that firm. Her job consisted in no small measure of writing opinions for members of the firm — a task that went a long way toward preparing her for work as a judge.

Justice Wilson received an invitation in 1979 to sit as a judge on the Ontario Court of Appeal. Her immediate response was surprise — and then laughter when, as a judge whose opinions reflected women’s rights, she said, “I’ll have to talk it over with my husband.” She accepted the position on the Court of Appeal and served there until her appointment to the Supreme Court of Canada.

Justice Wilson was a Supreme Court justice from 1982 to 1991, retiring at the age of sixty-eight. There, she had an important role in interpreting the then newly-established Charter of Rights and Freedoms, including decisions relating to a woman’s right to abortion (R. v. Morgentaler [1988] 1 Supreme Court of Canada Reports 30) and a spouse’s right to claim self-defence to murder based on physical abuse by her/his spouse (called in law the battered wife syndrome) (R. v. Lavallée [1990] 1 Supreme Court of Canada Reports 852).

Since the appointment of Justice Wilson, a number of women have served as justices of the Supreme Court of Canada. In 2012, after serving as a justice for what she called ten “intense” years, Justice Marie Deschamps of Quebec resigned at the age of fifty-nine. (At that time, there were four women sitting as justices.) In an interview with CBC News a week after her resignation, Justice Deschamps was asked about “gender balance” of the Court. She answered, “I think every court should aim for half and half…. It’s important that [the Court] is balanced…. I hope that the government will maintain at least four women on the Court. Whether the next candidate is a woman or it’s the one that follows it will be for the government to decide.”

In fact, the prime minister named Justice Richard Wagner of Quebec to the Court, thus lowering the number of women justices (at least for the time) to three.

It should be noted that the chief justice at the time of Justice Deschamps’ resignation was Beverley McLachlin.

How are Judges to Decide?

May emotion play a role in decision-making? For us, in reviewing decisions of the Supreme Court of Canada (or the decisions of any court, for that matter), an important question is whether justices can decide a case largely on the facts and the law as given. Can they remove (or largely isolate) any individual bias?

There are two parts to the answer — at least as applied to the Supreme Court of Canada:

1 No single justice decides a case. If the Court sits as a panel, there usually are seven justices who meet, discuss, and work toward an opinion that the chief justice usually assigns to a specific justice. If there is disagreement that cannot be otherwise resolved, then the way is open to a written dissent or a concurring opinion. (Often the justices are able to work out their disagreement to form a majority or a unanimous opinion.)

2 A case may be one that summons enormous emotion. Such was the case of Robert Latimer, a Saskatchewan farmer charged and convicted in the “mercy” killing of his disabled daughter. Twice the case went on appeal to the Supreme Court of Canada. The second time, the appeal was from a judgment of the Saskatchewan Court of Appeal that had increased a sentence of one year to ten years.

In a decision by the Court as a whole — not one attributed to any particular justice — the Supreme Court of Canada affirmed the judgment. The role of emotion in coming to decision was minimized.

Justice Ian Binnie, on his retirement after serving fourteen years on the Court, commented on the Latimer case in an extensive interview with Kirk Makin of the Globe and Mail:

The Robert Latimer case was a hugely controversial case, but to me, the legal outcome was straightforward. You can’t have people making their own judgments as to whether their child should live or die.

In saying that, I make no moral judgment about what Latimer did. I accept his word that he did it because he thought it was best for his daughter.

But the legal decision wasn’t his to make. But the law is clear. When you talk about judges applying the law and not making it up, if the Criminal Code is clear about the penalty that follows from the crime of homicide, then that is the penalty that follows. You can’t apply the law differently from case to case depending on a judge’s personal view of whether a constitutional exemption is warranted.

So, there is no necessary correspondence between how much you agonize over a decision and what the moral implications or the controversy is outside the courtroom. My only function in that case is the right legal result. In that case the legal result was clear. My personal views of whether it was a good outcome or a bad outcome were irrelevant.

References and Further Reading

Fitzpatrick, Meagan. 2012. “Supreme Court Should Have Four Women Says Retiring Justice,” CBC.ca, August 15.

Makin, Kirk. 2011. “Justice Ian Binnie’s Exit Interview.” Globe and Mail, September 23.

_____. 2012. “Supreme Court Judge Warns of ‘Dangerous’ Flaws in the System.” Globe and Mail, December 12.