Heightened Expectations, 1982-2004
by Philip Girard*

The adoption of the Canadian Charter of Rights and Freedoms on 15 April 1982 had important ramifications for all branches of government and for Canadian society as a whole. Unlike the very modest power granted to Canadian courts under the 1960 Canadian Bill of Rights to review legislation for consistency with fundamental constitutional rights, the Charter provided a full-blown power of judicial review of legislation and a remedial power limited only by judicial creativity. It brought an unprecedented addition to judicial responsibilities, and with it an entirely new level of public scrutiny. The Trudeau government hoped to signal the beginning of the ‘Charter era’ with some symbolic judicial appointments: that of Bertha Wilson on 4 March 1982 as the first woman on the Supreme Court of Canada, and that of Constance Glube as Chief Justice of the Trial Division, and the first female chief justice of a s. 96 court in Canada, a week later.

On 29 March 1982 there occurred another event rich with symbolic resonance for both the Charter era and the NSSC. Inmate 1997 at Dorchester Penitentiary in New Brunswick, Donald Marshall, Jr., cleaned out his cell for the last time. He was being released on parole, but hoped the imminent reopening of his case would free him permanently. Marshall, son of the Grand Chief of the Mi’kmaq Nation, had been found guilty in 1971 of the murder of a black acquaintance, Sandy Seale, at the age of seventeen. The young man steadfastly maintained his innocence and in 1981 information came to light pointing conclusively to the identity of the real killer. On 16 June justice minister Jean Chrétien referred Marshall’s case to the Appeal Division of the NSSC under s. 617(b) of the Criminal Code, which requires it to hear the case ‘as if it were an appeal by the convicted person.’ The Appeal Division duly acquitted Marshall in May 1983 but in the course of its decision blamed him for being the author of his own misfortune and stated that any miscarriage of justice was ‘more apparent than real.’ The judges blamed Marshall for concealing from police that he and his friend had badgered the murderer and his companion for money in the lead-up to the murder. They were not aware of the extensive police and Crown counsel misconduct which led to Marshall being charged, and then to a failure to follow up on credible allegations as to the identity of the real murderer.



Finally, under pressure from the public (principally the national rather than local media) and federal authorities, the provincial government reluctantly agreed to an inquiry by three out-of-province judges. The Commission itself strayed into controversy in carrying out its mandate. Perhaps disoriented by descending into deeper waters than any comparable Canadian inquiry, it violated the most fundamental tenet of judicial immunity by attempting to force the judges on the 1982 Marshall appeal to testify before it, an attempt rebuffed by the Supreme Court of Canada.1 When released on 26 January 1990, the Report of the Royal Commission on the Donald Marshall, Jr., Prosecution, had harsh words for the entire justice system, including its judicial component.

The commission declared flatly that Justice Leonard Pace, who was attorney general at the time of Marshall’s initial conviction, should not have sat on the 1982 appeal and placed some responsibility on Chief Justice MacKeigan for assigning him to the case. Attorney general Thomas McInnis subsequently requested the Canadian Judicial Council to inquire into the conduct of the five judges in order to ascertain if there were grounds for their removal. Former Chief Justice MacKeigan and Justice Pace both retired before the inquiry began, so that only the conduct of the three remaining judges was investigated. The inquiry committee said it could not ‘condone or excuse the severity of the Reference Court’s condemnation of Donald Marshall, Jr., and in particular its extraordinary observation that any miscarriage of justice was “more apparent than real”,’ but found that neither these comments nor other impugned statements involving either legal errors or findings on credibility constituted grounds for removal.2

In the wake of the Marshall Inquiry, morale at the NSSC was probably at an all-time low. Lorne Clarke, chief justice since 1985, proved to be the right person to take on the task of rehabilitation and received the full support of Chief Justice Glube of the Trial Division in this task. They faced an enormous burden through the 1990s: responding to the concerns raised by the Marshall Commission, repairing the judges’ own sense of self-esteem, coordinating a major expansion of the court consequent upon its absorption of the county courts, and dealing with a major shake-up of court facilities and registries around the province. Chief Justice Clarke embarked on an ambitious campaign designed to make the Nova Scotia courts national leaders in judicial education, public accessibility, and accountability. He aimed constantly to reach out to others: to other courts, to the bar, to academe, to the public at large, with the goal of making the courts more transparent and learning where they could improve. One of his first acts as chief justice was to organize a judicial education conference for all Nova Scotian judges, whether s. 96 or provincially appointed, and this practice has continued ever since. (The status divisions between provincially and federally appointed judges run very deep in Canada, and most judicial programs still envisage only one or the other of these groups and not both.) Chief Justice Clarke promoted continuing education for judges on substantive law issues and was an early leader in the field of social context education, initially resisted by many judges across the country. He arranged for the televising of proceedings before the Court of Appeal, for a ‘stand-alone’ Court of Appeal and for a pilot project for the evaluation of judicial performance by lawyers.3 Most importantly, Lorne Clarke’s humanity, empathy and common touch had a therapeutic effect on his court and helped begin the process of restoring Nova Scotians’ confidence in their judiciary. The title of a symposium arranged in honour of his 1998 retirement spoke to his principal preoccupations: ‘Law, Justice and Community.’

This is not to say that the NSSC did not face further challenges in the post-Marshall era. The Westray mine disaster of 9 May 1992, which killed 26 miners, revealed a legal apparatus seemingly incapable of bringing to justice the corporate agents alleged to be responsible for the deaths. The constitutionalization of criminal procedure in the wake of the Charter demanded a heightened level of expertise and professionalism from police and prosecutorial authorities, one they found difficult to attain while labouring under at times severe resource constraints. Negotiating the co-existence of a public inquiry with the laying of criminal charges proved to be a legal nightmare, as other provinces were finding out at the same time. The NSSC itself was not the main problem in the Westray prosecutions, but a mistrial on the criminal charges occurred when it was revealed that the trial judge, Justice Robert Anderson, had secretly telephoned the head of the prosecution service in an attempt to get the lead Crown prosecutor on the case removed. The problem this time was not, as in the past, excessive deference to corporate capital, but an excess of zeal on the part of a judge who believed the Crown prosecutor was not up to the job. The Court of Appeal found that there were grounds for an appearance of bias against the Crown, and ordered a new trial, but one was never held.4 On the positive side, Justice Peter Richard conducted a probing public inquiry into the disaster which ‘made solid findings of blame and far-reaching recommendations for change.’5 One of these was for amendments to the Criminal Code making corporate officials criminally responsible for knowingly maintaining unsafe workplaces, legislation which finally passed in the fall of 2003.6

Issues of race and aboriginal rights came to national attention again in the later 1990s as two important cases worked their way through the Nova Scotia courts to the Supreme Court of Canada. In R v. R.D.S. an Afro-Nova Scotian Youth Court judge made a credibility finding against a white police officer in a case involving his handling of a black youth, in the course of which she made a generalization about interactions of this kind. The Crown appealed the acquittal on the basis that the judge’s remarks revealed an appearance of anti-white racial bias, an argument accepted in the Court of Appeal. The Supreme Court of Canada restored the acquittal and in doing so issued a landmark decision on the meaning of judicial impartiality.7 In R v. Marshall the same Donald Marshall who had spent 11 years in jail as a result of legal error decided to try and vindicate what the Mi’kmaq had always understood as their right to fish as their ancestors had done, based on a 1762 treaty. He deliberately courted a conviction for catching eels out of season, but his treaty defence was unsuccessful in the Nova Scotia courts. The Supreme Court of Canada allowed it in a 5-2 decision which revived the long dormant treaties of Jonathan Belcher’s day. The Supreme Court attempted to draw a line between a permissible ‘modest living’ and an impermissible commercial exploitation which caused considerable confusion in the short term and resulted in a virtually unprecedented ‘clarification’ of the ruling two months later.8

The Marshall Inquiry unleashed a spate of law reform and court restructuring initiatives. The very month that the Commission submitted its report, the Nova Scotia Court Structure Task Force began its work. Chaired by former Dalhousie law dean William Charles, the final report of the Task Force made a number of important recommendations.9 The difference with previous studies lay in the almost immediate implementation of the recommendations through complementary provincial and federal legislation.10 As a result of the Task Force recommendations, the county courts were abolished and their judges and personnel merged with the Supreme Court of Nova Scotia (the last jurisdiction in Canada to do so). The latter was recreated as a trial court with twenty-five judges including a chief justice and an associate chief justice, and a stand-alone Court of Appeal was created with eight judges including the chief justice of Nova Scotia. The province was divided into four judicial districts–Cape Breton, Halifax, the Southwestern District and the Central District (the northern and eastern mainland counties)–with at least two Supreme Court judges resident in each. The long-mooted idea of Supreme Court judges resident in the counties at last came to pass, though of course in the short term the judges in question were the former county court judges with their new hats on. The Supreme Court still goes on circuit, but the judges resident in the counties also sit in Halifax from time to time so as to ensure their continued exposure to the full range of judicial business. The recommendation for a new unified family court to be created as a division of the NSSC took longer to implement, but finally became a reality in 1999.

The merger of the courts and the fiscal crisis of the early 1990s provided the final impetus to reform the support staff of all courts within the province. The 1996 Court and Administrative Reform Act, finally abolished the separate acts and peculiarities of the offices of prothonotary and sheriff and did away with distinctions between s. 96 and provincial courts.11 It states simply: ‘there shall be appointed, in accordance with the Civil Service Act, court administrators and such other officers and employees as are considered necessary for the administration of the courts in the Province.’ The duties of these employees may include the duties formerly assigned to court reporters, sheriffs, and prothonotaries. The Marshall Inquiry had deplored the continuing appointment of prothonotaries outside the civil service, a practice that would appear to be precluded by the new legislation.

Post-Marshall, the enlarged NSSC has been preoccupied with re-establishing its morale and its legitimacy in the eyes of the citizens it serves. It has initiated a wide range of measures from ambitious judicial education programs to the evaluation of judges by lawyers with a view to improving the quality of justice throughout the province. After the huge increase in caseload of the 1960s through the 1980s, the numbers have levelled off, and in fact the court is probably larger now than it needs to be. The trend in the sphere of civil justice is towards alternatives to court action, including resort to ‘collaborative law’–arrangements where opposing parties agree not to go to court at all. In criminal law there is a parallel movement towards restorative justice, where the victim, the offender and community representatives are all involved in trying to repair the damage caused to human relationships by criminal acts; Nova Scotia is now regarded as having one of the most comprehensive restorative justice programs in the world.12 These developments should decrease pressures on the Supreme Court, though this may be offset by the increasing length and complexity of those trials that do occur, especially criminal trials. A different kind of challenge arises from the increasing number of self-represented litigants; as many as one-third of litigants now appear in the Supreme Court (Family Division) without counsel. The Court’s principal role will continue to be dispute resolution, but it will function increasingly as one alternative among others. It will likely be called upon to play a coordinating role in a situation of growing legal pluralism, in which one important component is a carefully modulated return to the community of its role in the administration of justice.

This overview has included many references to Nova Scotia being the last province in Canada to adopt various kinds of court reforms. Let us conclude, then, with some ‘firsts.’ In 1982 Justice Constance Glube was appointed the first female chief justice of a superior court in Canada, and her 1998 appointment as chief justice of the province (in succession to Chief Justice Lorne Clarke) made her only the second female chief justice in Canada, well ahead of the appointment of Justice Beverley McLachlin as Chief Justice of Canada on 7 January 2000.13 Although the last province to merge its county and supreme courts, Nova Scotia has now become a leader in merging the administration of the s. 96 and the provincial courts; in 2002 an executive officer to the chief justices of all courts in the province was created. In the wake of the Marshall Inquiry the Court has embraced innovation and become a national leader in a number of areas such as social context education and judicial performance evaluation. It has adopted a service orientation and reached out to the bar and the public in order to make its role better understood. It has understood that judicial independence has to be made compatible with judicial accountability, and that the judges themselves have to lead the way in this regard. As it enters the 21st century, the Court appears to have dealt with the challenges of the last two decades with due seriousness, but also with imagination and ‘grace under fire.’ Such responsiveness stands as an example of true judicial accountability that other courts might be wise to emulate.

Endnotes

1. MacKeigan v. Hickman, [1989] 2 SCR 796.
2. Report to the Canadian Judicial Council of the Inquiry Committee established pursuant to subsection 63(1) of the Judges Act at the request of the Attorney General of Nova Scotia (August 1990). Chief Justice MacKeigan had stepped down in 1985, but remained a member of the court on a supernumerary basis until 1990.
3. On the latter, see D. Poel, The Nova Scotia Judicial Development Project: A Final Report and Evaluation (Dalhousie University 1997).
4. R. v. Curragh Inc. et al. (1995), 146 NSR (2d) 161.
5. D. Jobb, ‘Legal Disaster: Westray and the Justice System,’ in C. McCormick, ed., The Westray Chronicles: A Case Study in Corporate Crime (Halifax: Fernwood 2000)
6. An Act to amend the Criminal Code (Criminal Liability of Organizations), SC 2003, c. 21.
7. [1997] 3 S.C.R. 484 and see (1995) 18 Dalhousie Law Journal for a thematic issue on the case.
8. [1999] 3 SCR 456 and 533; see (2000) 23 Dalhousie Law Journal for a thematic issue on the case.
9. Report of the Nova Scotia Court Structure Task Force (March 1991).
10. An Act to Reform the Courts of the Province, SNS 1992, c. 16; Nova Scotia Courts Amendment Act, 1992, SC 1992, c. 51.
11. SNS 1996, c. 23.
12. B. Archibald, ‘Citizen Participation in Canadian Criminal Justice: The Emergence of “Inclusionary Adversarial and “Restorative” Models’ in S. Coughlan and D. Russell, eds., Citizenship and Citizen Participation in the Administration of Justice (Montreal: Thémis 2001), 149-92; and see Restorative Justice: A Program for Nova Scotia (Department of Justice 1998).
13. Catherine Fraser was the first female Chief Justice in Canada, becoming Chief Justice of Alberta in 1992.