Tuesday, Jun 22, 2004

Iacobucci reflects on own Supreme Court trials

Retiring judge says toughest part of job was when decisions were misunderstood
Retiring Supreme Court Justice Frank Iacobucci kisses Chief Justice Beverley McLachlin following a ceremony Monday to mark his retirement at the Supreme Court of Canada. Jonathan Hayward/CP
 Photo: Jonathan Hayward/CP
Retiring Supreme Court Justice Frank Iacobucci kisses Chief Justice Beverley McLachlin following a ceremony Monday to mark his retirement at the Supreme Court of Canada.

From Tuesday's Globe and Mail

Of all the trials and tribulations of being a Supreme Court judge in the Charter of Rights era -- and in 13 years Mr. Justice Frank Iacobucci has likely experienced them all -- the worst feeling, he says, comes from being unable to correct public thinking when a ruling is misunderstood.

A child pornography decision, one on tobacco advertising, another on mandatory retirement -- all have been distorted or misunderstood, Judge Iacobucci said in an interview after his official retirement ceremony yesterday.

"I think the most distressing thing to me is when there is quite a considerable misunderstanding of what has been done," he said. "You're getting criticism that is completely inappropriate. It's not the criticism that hurts, it's the inaccuracy."

In the child pornography case Regina vs. Sharpe, he said, the court carefully circumscribed its ruling to leave only a narrow defence involving artistic merit, yet it was blasted in some quarters as creating an open season for pedophiles.

"Who in his right mind would support child pornography, in any kind of way?" Judge Iacobucci said. "It's just awful. To say we were going out of our way to defend the rights of people doing those terrible things . . . we really work very, very hard to be careful. It really does distress me when this happens."

What surprised him most, he said, was the unrelenting "pressure to get it right. It's the end of the road here. I could only conceptualize it. I had to live it to understand.

"It is stimulating, but it is also daunting. The luxury of rejecting issues is just not given to us, so you do the best that you can. It is very humbling. You never come to a point where you say: 'Well, now I'm used to it. I've really got it now.' "

Appointed in 1991, Judge Iacobucci's seniority on the court is surpassed only by that of Chief Justice Beverley McLachlin.

He said he is apprehensive about how the Supreme Court appointment process may be changed in coming years, but is reluctant to have his opinions become part of the federal election campaign. He simply advised future governments to be sure they know precisely why they are changing the process and what shortcomings they are trying to remedy.

"One has to then define what qualities the best kind of judges have," Judge Iacobucci added. "That is what judicial appointees should be looking for. Intelligence is necessary, but it's not sufficient. Courage, fairness, a willingness to listen, experience in life."

Does he worry that growing public and political pressure on the court could lead to it becoming politicized? "The short answer is, yes," Judge Iacobucci said. "But I am greatly comforted by Canadian traditions. We are not like other countries where we get on a political bandwagon and wear our values on our shirtsleeves. We are a country founded on compromise. There is no revolution in our history. I think there will be tensions, but I'm confident in our history and traditions will prevent us from having serious problems."

The Charter of Rights revolutionized the work of the Supreme Court in an unimaginably profound way, he said. "As [University of Toronto law professor] Peter Russell once said, it meant the judicialization of politics and the politicization of the judiciary."

Yet judges cannot start tailoring their decisions to please or appease public opinion, he said. Nor can they be oblivious to the effect major rulings can have on the public.

"Courts can't give many of those decisions too quickly," he said. "The rest of society have to, in some ways, catch up."

He firmly believes that the public supports the Charter of Rights, even while debates rage over certain contentious rulings. "The public will say we want judges in this role, but from time to time we are going to disagree. I don't think that is particularly unhealthy.

"There was an absolute explosion of interest in the institution after the Charter. The debate will be endless. It's part of this new democracy based on constitutionalism and individual human rights."

When Supreme Court rulings are misunderstood, Judge Iacobucci said, one of two culprits is usually responsible. The first is self-interested opinion "brokers" who purposely take a judgment out of context. The other is inaccurate newspaper headlines that precipitate a furor by misinforming those who read no further.

He recalled headlines that stated, Court Backs Tobacco Companies, after the court ruled the constitutional right to free expression allowed manufacturers to advertise.

"There was nothing further from the truth," he said.

"We wouldn't have backed the tobacco companies. There was terrific evidence about the pernicious effects of smoking. Why would you back the activity of these people? The judgment was about free expression. It led to terrific misimpression."

He also cited a mandatory retirement ruling 15 years ago in which the court said it was constitutional for an employer to set 65 as the age of retirement.

"The court didn't say everybody must retire at age 65. The court said laws that say you must retire at age 65 don't offend the Charter, but if you employers want to extend it beyond age 65, you may do so."

Long recognized as a consensus-builder on the court, Judge Iacobucci said he is proudest of some momentous cases -- such as the Quebec Secession Reference -- where the court managed to reach unanimity and produce a powerful ruling.

The cases that left him most unhappy involved domestic abuse or abused children.

"It's because our role as judges is reactive rather than proactive," he said.

"We have to render those decisions, to punish criminal infractions, but I just wish there was some way we could advance understanding and the ability to avoid problems. As a judge, I felt disappointed that despite the greatest advances of technology and society, we still have these curses on our society."