After three decades in law, two of them on the bench, justice Louise Charron craved the one thing the Supreme Court couldn’t give her. It could give her fascinating cases. It could give her a collegial work environment. It could give her a salary and perks that are the envy of many. But the one thing the Supreme Court couldn’t give Louise Charron was a rest.
“I was taken by the job and I really loved it but I also wanted to make sure that I would leave before I lost the fire in my belly,” Charron says candidly. “And as much as I enjoyed the work and I found it interesting and I was passionate about many aspects of it, it does take its toll. There is a certain treadmill feel to it. And I just asked myself the question as I turned 60, how long do you want to do that?” And, she points out, “It is perhaps a bit unfortunate that there’s no ability to just reduce the workload as you can do in other aspects of the profession.”
Charron, 60, took many by surprise last May when she suddenly announced her decision to retire from the Supreme Court — 15 years shy of the court’s mandatory retirement age of 75. She is younger than six members of the current court, including Michael Moldaver, one of the judges appointed to fill one of two vacancies when she and fellow justice Ian Binnie stepped down. In doing so, Charron joined a trend of top court justices retiring well before mandatory retirement age and going on to play other legal roles.
In 2004, Louise Arbour left the court at the age of 57 to become United Nations High Commissioner for Human Rights. In 2009, she was named president and CEO of the International Crisis Group headquartered in Brussels. In 2008, Michel Bastarache retired from the court at 61 and moved to Heenan Blaikie LLP in Ottawa as a counsel in its litigation group. In fact, since 1990, only three of 13 judges who left the Supreme Court stayed on until or around their 75th birthdays. Nine retired before that and one, justice John Sopinka, died in office in 1997.
Charron says the reasons judges leave Canada’s top court early are as varied as the judges themselves. In her own case, however, she says she might have been willing to stay on the bench if she could have taken a one-year sabbatical or become a supernumerary judge. “If there had been an option, depending on how it would work, I think I might have opted for the sabbatical.”
For Supreme Court judges, it’s all or nothing, Charron told Canadian Lawyer in an exclusive interview in February. There’s not much opportunity to reduce your workload or take a step back. “Even if I wanted to take one year off to recharge my batteries, on the Supreme Court you’ve got three choices. You have a sick leave, which is not a choice because you are sick and your colleagues are left with more work, you’re not being replaced. Or you have death, but that’s a bit permanent — I wasn’t too interested in that one. Or you have retirement. . . . I opted for retirement.”
Charron became eligible to retire with a full pension at 58. It had been decades since she had taken more than a couple of weeks off in a row. While she and her husband, retired police officer William Blake, are both in good health, she knew that the free time she had long envisaged spending together would not be possible if she continued at the court. “I felt at the top of my game. That’s the time to jump off the plane — with your parachute — and see where it leads,” Charron says with a laugh and a twinkle in her eyes.
While she knows the idea has detractors, Charron would like to see a system of sabbaticals or supernumerary part-time work for top court judges. While some contend the court needs continuity and judges could fall behind if they were away for a year, Charron argues jurisprudence does not “start at point zero” when a judge leaves and the court is bound by its precedents. “I personally would not think that it would affect in a negative way for judges to be away from it for some cases and not always be part of the process. Because they will not be always part of the process in the big picture anyways. If they drop dead from overwork they won’t be.”
If there is one thing that Louise Charron is no stranger to, it’s hard work. The first Franco-Ontarian named to the Supreme Court, Charron started out in a modest family in the northern Ontario town of Sturgeon Falls. Charron says she fought her parents’ decision to send her to the private French-language Pensionnat Notre-Dame de Lourdes because she preferred the local English high school where there were boys. But she credits the Filles de la Sagesse (Daughters of Wisdom) nuns who ran the school with providing her with many of the skills that served her well during her career. “The education I received there was excellent. They did not want any of their students to come out at a disadvantage. It was a French school and in a situation where we are the minority, they made sure that once we got out of there we could compete with anyone at any school. So they drew us to the maximum of our capabilities.”
Those capabilities took Charron through Carleton University (BA), the University of Ottawa for her law degree, private practice in civil and criminal litigation with Lalonde Chartrand Colonnier, 10 years as an assistant Crown attorney in Ottawa, as well as lecturing in the French common law section of the University of Ottawa’s Faculty of Law. By the time Charron was appointed a District Court judge and local judge of the High Court of Ontario in 1988, she was only 37 years old. In 1995, she was appointed to the Ontario Court of Appeal and by 2004, at 53, she was sitting on the Supreme Court of Canada bench.
Among the lessons she learned back in Sturgeon Falls that helped along the way were organization, discipline, and intellectual rigour. “Being good enough was never good enough,” she recalls. “Doing it well. You had to have the drive for excellence and I appreciated that.”
On the Supreme Court, however, Charron had to adapt to the reality of the job. Because judgments are divvied up among judges and can take months to fine tune, there is always unfinished work. “I had to mentally adjust to the fact that I could not clear my desk. Some people might not be bothered by that and I was. I had to think differently and accept it as a fact that it would be like that.”
While the public tends to focus on the hearings where scarlet-robed judges listen to the arguments and pepper counsel for each party with questions, Charron says much of the work takes place well before the panel files into the courtroom. “There really is a huge amount of preparation because when we do get to the hearing and we hear the argument and we walk out and the door closes, we are ready to decide the case.”
Charron says the judges meet as soon as possible after the hearing. When she was first named to the SCC, the court had a practice of hearing from each judge according to their seniority. “Initially, when I got here the court was still following a pretty set procedure where the most junior judge would speak first and then we would go in reverse order of seniority. . . . It put quite a burden on the junior judge but I thought it made a lot of sense as well because you could have your opportunity to give your views on a case.”
Over time, the court adopted a less formal process and now begins its deliberation with an open discussion, says Charron. “With a general discussion you have the benefit of hearing the people’s views . . . then we go back to each in turn [and] we give our views on how we think we would dispose of the case and why.”
Chief Justice Beverley McLachlin then asks for volunteers to write the judgment but the judgments are only assigned to judges at the end of a two-week session. If there is going to be a dissenting opinion, the dissenting judges decide among themselves who will write it, but it is only written after the majority opinion is finalized, Charron points out.
Charron, who has written in the majority more than any other member of the court, says the process of drafting a decision then getting the agreement of up to eight other judges can sometimes take quite a bit of time. However, she has always welcomed other viewpoints. “For example, a colleague of mine would say, ‘I agree with you on the result and I don’t see any problems with how you dealt with that issue. But on the first issue I’m concerned with what you are saying here at paragraphs 12 to 15 because it might close the door on other matters that weren’t truly before us so perhaps you should state it more narrowly.’ That’s very useful when someone detects that it may not be interpreted the way we intend.
”In fact, thinking wide and writing narrowly is often key to writing a judgment, says Charron. “It is important to think wide, but write narrowly because usually the issue that you are called upon to decide is rooted in a particular fact situation and can be viewed narrowly. It’s not that you just look at it that way. You can’t. You have to think about how it fits in the big picture.”
One of her rulings Charron believes made an impact on Canada’s justice system was her 2009 judgment in R. v. McNeil, a case of third-party disclosure in which an accused was trying to obtain disciplinary files concerning misconduct by an arresting officer. “I spent a lot of time trying to figure out how best to set it up. I wanted it to work. I wanted it to be functional. I did find that my experience as a litigator, as a Crown, as a trial judge helped me in knowing a bit how it works,” she says. “I’m sure that one had an impact on practice, how things would happen afterwards.”
Charron says in her experience when it comes to pleading before the Supreme Court — or any court for that matter — the most successful lawyers understand two key things. “I put it very succinctly — it’s called preparation, preparation, preparation. And know your court.”
The retired judge says most of the lawyers she saw plead before the Supreme Court had done their homework and the level of advocacy was “good if not excellent.” However, that wasn’t always the case in the lower courts. “I have seen the error done more at the appellate level when I was at the Ontario Court of Appeal by some experienced lawyers, who are smart and great litigators, but they think they can bypass preparation because they have 20-some years behind them and they are so used to pleading before the Court of Appeal. And it was obvious, from minute number three and a half, in the hearing that the junior knew the file more than the senior who was giving the argument. You cannot bypass preparation.”
Nor will you get very far if you fail to understand the role of the court you are pleading before, Charron adds.
“A common error would be a lawyer not understanding fully that an appellate court is not a fact finder and not dealing with the findings of fact at trial. Some lawyers would go and (deliver) a brilliant piece of advocacy if they were at the trial level. We would have to tell them you can’t retry your case. It’s wonderful but even if I agreed with you, your trial judge has made these findings. Show me the palpable and overriding error.”
At the Supreme Court, the best lawyers understand that the justices ask questions unrelated to their clients’ case because the court has to decide the norm that will govern cases across the country, she explains. “Know what the court, the judges you will be pleading before, what they will be looking for in terms of assistance from your answers and be prepared for it.”
While she is a proud Franco-Ontarian, Charron is diplomatic when it comes to the decision by the Conservative government to appoint unilingual English judge Michael Moldaver to the court after she and Binnie retired, saying the important thing is for the court to have the best jurists it can have. While the Supreme Court is a bilingual institution and it is important for judges to “acquire a certain level of functionality in the other language,” Charron says court staff can also help judges. “I would be cautious about absolutes but it is certainly a very important part of the functioning of the court that we have both languages and if you’re fortunate enough to be fully bilingual when you arrive here then all the better, it is less work for you. If you’re not, well the effort is put in and you learn.”
Pointing out that she had to learn civil law when she was named to the Supreme Court, Charron adds, “You have to teach old dogs new tricks.” If anything, she thinks language skills are more important in lower courts. “I see it as more of an issue in a way as a trial judge. If you cannot understand the witness or the accused in his or her language — because it does happen often because we often do trials through interpretation — you don’t get the same flavour when you get the interpretation of a nuance of a testimony. On questions of credibility, I always found unfortunately that you are at a disadvantage for that kind of nuance and you are the only decision-maker as a trial judge. So that’s a lot more crucial.”
Charron also measures her words when it comes to the topic of judicial activism — a charge that supporters of the ruling Conservatives often levy at the Supreme Court. “Activism is sort of complex. You often have to ask yourself in whose eyes. You can get as many complaints that the courts have not been active enough — or they have been too active. But it is an important issue that the courts have to recognize the limits of their role and in many cases the court is not engaged in drawing the line on the constitutional front. If the issue before you is one of statutory interpretation, it’s not the time to flex constitutional muscles and ask yourself if that line unnecessarily infringes on some right or freedom. But when you are given the task of deciding such issues, you have to decide them according to the principles that are starting to be more and more settled and respect the line where some calls are Parliament’s or the legislators’ and the courts have to give it deference. But it’s not absolute deference.”
As a judge, Charron says her hardest cases were at the trial level where cases hinged on questions of credibility. “I was often very grateful to have a jury because if 12 members of the jury came together and reached a conclusion, I thought that was stronger and I would accept their verdict.”
At the Supreme Court level, Charter cases imbued with policy issues were the most challenging. “Where do you draw the line on an issue of freedom of religion?” she said, citing one example. “There’s no one correct answer. Rarely is there just one correct way to go. And those decisions do have a huge impact on people and the way that we will live in our Canadian society.”
Meanwhile, new technologies are presenting new challenges for the Supreme Court, says Charron. “We have a lot of emerging issues coming out of greater use of technology and the fact that we are a global world and there are explosive issues on every front — particularly in communications and privacy and so on. Of course the jurisprudence will evolve to find solutions to these problems.”
What constitutes publication? When is a document incorporated in a contract? Which court has jurisdiction over contracts signed in cyberspace? What is a reasonable expectation of privacy in the digital era? Charron says these are just some of the legal questions new technology raises. “In any subject matter you could see how the rules of common law may have to be adjusted on several issues — be it contract or tort — to adjust to this new environment.”
For example, Charron asks, what expectations should Canadians have of privacy in an age where someone can take a video of you at a shopping mall and put it up on YouTube or tape a speech you give and post it on a web site? “The whole notion of privacy, our s. 8 jurisprudence — you have the right to be secure against unreasonable search and seizure. Well, the measure is reasonableness. So you have to ask yourself, how reasonable is it to expect any privacy now? That shouldn’t mean that you have no privacy. That cannot mean that you have no privacy. So you have to adjust the meaning of what’s reasonable.”
Part of the answer may lie in how the material is used, says Charron. “It could be that the focus, on what is reasonable expectation of privacy, it could be that our focus might be more on what use will be made of it as opposed to just the expectation that it be captured. Because we live in a world where we can almost always be captured in some sense. What use will be made of it becomes a very important part of the equation.” But those questions will be for her former colleagues to tackle.
At the moment, Charron is on sabbatical from all things legal. She is refusing speaking engagements, practising the Buddhist meditation she took up a few years ago, enjoying a more relaxed pace, and the ordinary things of life. She appears far more rested than she did when she stepped down from the bench last August. “I do want to let some time pass — I don’t have a definite period in mind but I think less than a year would be meaningless in a way and then I will see.”
After that, Charron doesn’t rule out a return to law — but not at the same intense pace as the Supreme Court. Private practice is one option, although she has always been less interested in the “business of law.” She also loves teaching. But her eyes light up when she talks about the prospect of chairing a commission of inquiry — particularly one that calls upon her past in criminal law. “Some judges are asked to do a commission of inquiry. Some I don’t think would interest me. There could be some that I think I could contribute something of value.”
But not before she has had her rest.