Beverley McLachlin and Michel Bastarache are the only two former Canadian Supreme Court judges of the post-1982 Charter of Rights and Freedoms era to have published memoirs.Sean Kilpatrick/The Canadian Press
Roaming the stacks at my friendly neighbourhood library recently, I stumbled on an incredible trove of autobiographies by the great Canadian Supreme Court judges of the past 50 years. Peter Cory, the last of the Second World War veterans to serve on the court, wrote about his formative experiences and how they shaped his legal views on the protection of human dignity. Brian Dickson, born in 1916, wrote about how he had grown up in a vastly different world and yet was the right man to become chief justice in 1984, just as the Charter of Rights and Freedoms was about to transform this country.
Uh, sorry … that was mean. There’s no trove. No autobiography by Cory or Dickson. Almost no books, ever – a near-complete silence – from the country’s top judges of the post-1982 Charter era, outside of a 2019 memoir and novels by retired chief justice Beverley McLachlin and a memoir by Michel Bastarache, also out in 2019.
It’s an incalculable loss to the country, a loss felt by anyone who wishes to understand the evolution of Canada and get to know some of the people who helped it along. A loss brought about by a cultural reticence that, whatever its original purposes, makes little sense in the modern world. As Supreme Court Chief Justice Richard Wagner himself has said, without transparency there is no trust.
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The contrast with the justices of the U.S. Supreme Court could hardly be starker. Amazingly, six of the current nine justices have published autobiographies or legal works. The latest book, published in September, is by Justice Amy Coney Barrett. Listening to the Law: Reflections on the Court and Constitution has a bit on her life and family background, then sets out her views on constitutional law, how she arrives at her legal opinions and how the court works. It’s a good book because it guides readers engagingly through an otherwise closed world.
Richard Albert, a Canadian who teaches at the University of Texas School of Law, calls judicial autobiographies essential “because they humanize the judiciary,” which fosters trust and understanding. They also offer insight into a court’s internal dynamics and inspire young people.
“When chief justice Beverley McLachlin details her climb from modest beginnings, it provides a powerful, tangible message, especially to young people, that someone like them can scale the Mount Everest of law,” said Albert, a former law clerk to McLachlin.
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Of course, complete candour on either side of the border is unlikely. Coney Barrett and her colleagues may spend decades together on the bench. Still, her book is well-written and at times revealing.
For instance, if there’s a knock at the door when the court is meeting privately to discuss a case, the junior judge (the most recent appointee) has to get up and go see who it is. Coney Barrett doesn’t comment on the practice, but really? For every knock, over who knows how many years, Justice Ketanji Brown Jackson, who happens to be the court’s only Black woman, has to answer the door? Someone thinks this is a good idea?
More important, Coney Barrett describes her philosophy of originalism (in which the Constitution’s historical meaning is given primacy), explaining why she sided with the majority in 2022 in Dobbs v. Jackson Women’s Health Organization, ending the nationwide right to an abortion. “The court’s role is to respect the choices that the people have agreed upon, not to tell them what they should agree to.”
Some Canadians may wish to fire back that, in this country, constitutional rights aren’t about majority rule but rather protection from the majority, by assessing text, values, purposes and how other democratic countries treat such things – Coney Barrett takes the insularity of originalism, its U.S.-only lens, as a given. She has high praise for Brown v. Board of Education, the court’s historic 1954 desegregation ruling, but doesn’t address the obvious point that this was the court telling people what they should agree to.
In any event, how could a Canadian be critical? A book is better than no book, which is what we have in Canada. And if one wishes to hear another point of view, retired U.S. Supreme Court justice Stephen Breyer, just last year, published Reading the Constitution: Why I Chose Pragmatism, not Textualism.
As for the two Canadian memoirs, they are good: McLachlin writes beautifully about her childhood. The family’s ranch in the high foothills near Pincher Creek, Alta., was for her father “the landscape of dreams,” but for her sociable mother “it was unutterably lonely.”
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The remarkable memoir of Bastarache, the court’s first Acadian judge, was written as a letter to his two children, both of whom died of a rare disease when they were small; the form allows for a confiding, honest directness and simplicity of expression. His final summing-up is truly heartbreaking.
Why are Canada’s Supreme Court judges, who in their rulings refer annoyingly to their “teachings,” as if they are biblical sages, as silent as so many sphinxes? I asked Frank Iacobucci, the first Italian-Canadian on the court. Long ago, he said, he learned that the judiciary is like the navy – the “silent service.” He would hate for the judges to lose their candour, behind closed doors, for fear of being outed in a book some day.
Still, he’s thinking of writing his memoirs. He’s 88 and as accomplished as any 10 people. What a life story. His parents were labelled enemy aliens during the Second World War and had to report regularly to the RCMP. He himself was told he had the wrong “name” for the law. As an exemplar of what this country is, he’s hard to beat.
Enough of the silent service already. We’re the poorer for it as a country.
One day, a great library.