OTTAWA—It was a pretty high-powered group.
Judges of the Supreme Court of Canada met with judges of the Supreme Court of the United States in Washington last April in the midst of the U.S. election season.
Chief Justice Beverley McLachlin, and Justices Andromache Karakatsanis, Richard Wagner, Claude Gascon and Suzanne Côté travelled to the U.S. capital, and mingled with top U.S. judges at a reception hosted by the Canadian embassy.
The U.S. presidential primaries were heating up. Donald Trump hadn’t closed the deal on his Republican nomination. And President Barack Obama was fighting flat out with Republican leadership to win approval of his nominee to the U.S. Supreme Court — in vain, it would turn out.
So, was it a chance to talk politics or law, or did they engage in gossip and small talk in the safe confines of an elite group of judicial officers who wield influence over the lives and rights of millions?
Canada’s top judge says U.S. campaign politics were not on the agenda that day. “We would never discuss political problems — or issues, is a more accurate way to put it — no.”
In an exclusive interview with the Star, McLachlin said they discussed legal problems, and she compared judicial travel to academic conferences where ideas and papers on judicial administration and substantive law are exchanged.
On the same Washington trip, the Canadian judges sat in on a United States Supreme Court hearing.
McLachlin said Canadian jurists travel not just as a way to convey the Canadian way of doing things, or to compare administrative notes, but also to “get a deeper understanding” of a problem that sometimes then aids in the development of Canadian law.
“Sometimes it’s — what is the state of the law and how do you approach this particular issue and how do we approach it — and this helps give us a better understanding of the parameters of the legal issue,” she said.
Other judges on the trip declined a request from the Star to comment, but Justice Andromache Karakatsanis said she generally finds “the exchange of ideas and practices” to be “very worthwhile.”
“Informal and frank exchanges with other Supreme Courts about how we work, how we approach decision-making, the role of a supreme court or discussions on comparative law can be very illuminating. It is an opportunity to be reflective about the unique challenges, roles and responsibilities of a supreme court.”
What’s clear is there’s cross-pollination of ideas on judicial journeys. What’s not clear is how much.
University of Ottawa law professor Carissima Mathen says not much is known about the “sense of camaraderie, or mutual exchange and influence that happens at this very rarefied level” of judicial exchange.
She said it’s potentially a sensitive issue, and if there’s an effect “it’s likely to be a silent effect” that goes largely under the radar.
That’s because when it comes to judging, “there’s sort of an etiquette against the court just throwing in authority that hasn’t been used by counsel,” Mathen said. “That’s how the adversarial system works. The idea is they’re there to settle a dispute, and they shouldn’t be sticking their own oar in.”
McLachlin, however, points to useful discussions on issues like “proportionality,” citing it as an example of where the Canadian high court was influenced by an idea developed first by Germany and adopted by other places such as Israel.
It’s framed as a three-part test in Canadian constitutional law, known as the Oakes test. And it’s the key judicial tool used by judges when they evaluate whether a statute or a state action that restricts a fundamental constitutional right — say, freedom of speech or freedom of association — may be upheld as reasonable and justified in a democratic society.
McLachlin said when a group of judges from the German Federal Constitutional Court came to Canada in 2012, “we had a terrific session on the concept of proportionality.”
University of Toronto law professor David Schneiderman says McLachlin’s comments are revealing because high courts around the world have adopted this kind of proportionality analysis.
He said the evaluation of whether a law is proportional is “where all the action takes place” when judges are deciding whether to strike it down.
“So to the extent that they’re addressing problems, applying the same methods and tools of analysis, you can see how communication with judges and other high courts would be helpful, instructive one might say.”
In fact, Schneiderman suggests the Supreme Court of Canada was likely influenced to shift its view of the death penalty over a 10-year period, perhaps by a searing South African Supreme Court ruling on the death penalty and discussions around it.
In 1991, the Supreme Court of Canada in Kindler upheld Ottawa’s power to extradite an offender to face the death penalty in the U.S. without receiving assurances the person would not be executed. Then, just a decade later, the Canadian court ruled in the 2001 Burns and Rafay case that a Canadian justice minister must seek assurances an extradited offender wouldn’t face the death penalty, except in undefined “exceptional” circumstances.
The new outcome turned on “the practical and philosophic difficulties associated with the death penalty that have increasingly preoccupied the courts and legislators in Canada, the United States and elsewhere,” the high court wrote in Kindler.
McLachlin refused to comment on what influenced that seminal 2001 ruling on capital punishment. “That would get into the heart of our decision making which we never really comment on. We take the view our decisions stand for themselves.”
But as Canadian courts tackle more complex questions in areas of anti-terrorism and national security law, for example, and try to balance collective security with individual liberty and privacy rights, it’s important to understand what goes into judicial thinking.
Judges’ travel has been a hot topic in the U.S., part of an ongoing debate about whether that Supreme Court should look to, cite or even care about foreign law in interpreting the U.S. Constitution.
Congress once considered a resolution to prohibit the consideration of foreign law in U.S. Supreme Court decision-making. And a Republican congressman actually probed the number of foreign trips American supreme court judges took.
When he found they’d made 93 trips over a five-year period, he snarked to the New Yorker in 2007 that Justices Stephen Breyer and his fellow liberal Anthony Kennedy “are more enamored of the ‘enlightenment’ of the world than they are bound by our own constitution.”
Schneiderman thinks there’s a balance to be struck. While Canadian courts do look at foreign law, “we don’t want to mimic” the U.S. court, for instance.
“I mean the U.S court is a highly dysfunctional court in many ways. It’s riven by a political divide that we don’t have here,” he said. “We don’t want to copy what they’re doing,” but he suggested there is value in judges informing themselves what others do.
Asked if there is a downside to judicial exchanges, especially with countries that don’t align with Canadian values, McLachlin said “No.”
“There’s never a downside in looking at other people’s ideas. I mean, each court in the end decides the cases based on the laws in their country and the jurisprudence in their country, and the submissions of the counsel and the intervenors and so on.
“Listening to other people, I feel, is always a good thing. And you don’t accept holus bolus everything you hear, of course. But it causes you to reflect on your own approach and what you’re being told by litigants, and by lawyers and academics and I come back to the idea that it enriches your thinking about a particular jurisprudential problem.”
However both Schneiderman and Mathen, keen observers of the Supreme Court, suggested it’s positive that judges sometimes get outside the “bubble” or narrow confines of judicial circles that are meant to protect the notion of impartiality.
Court visits
Here’s a look at recent travels by, and visitors to, the Supreme Court of Canada:
- In 2016, the Supreme Court of Canada hosted a delegation of British judges from the United Kingdom Supreme Court.
- In 2015, Ottawa hosted judges from the European Court of Human Rights, and McLachlin travelled to Hong Kong for a judicial colloquium and to Israel and met with its high court members.
- There were no judicial exchanges in 2014. There were two judicial visits to Canada in 2013 by U.S. Supreme Court members and judges from France’s Constitutional Council.
- In 2012, the Canadian court received visits from members of the Federal Constitutional Court of Germany and the Supreme Court of India. That same year, Canadian judges travelled to Australia for a judicial colloquium.
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