The first time Ian Binnie met Antonin Scalia, the U.S. Supreme Court justice was at his acerbic, gregarious best. It was in Auckland in 1999, and Justice Scalia, fresh from an Australian vacation, extended his hand.
“You know,” he told the Canadian Supreme Court judge, “Americans just love Australians and New Zealanders. They’re just like Canadians but without the chip on their shoulders.”
Chip on their shoulders or not, Canadian judges such as Mr. Binnie found Justice Scalia’s approach to law and his sarcastic style inimical to their own philosophy, though they appreciated the power of his intellect, his writing verve, his directness and his personal warmth. Three retired Canadian Supreme Court judges interviewed by The Globe and Mail said Justice Scalia’s views of originalism – that the Constitution is what the Founding Fathers said it was in 1787, or in Canadian terms, what the founders of the Charter of Rights said it was in 1981 – had no influence on them.
Mr. Binnie, who jousted with Justice Scalia three times over the years in panel discussions, came to view the 79-year-old jurist who died Saturday as destructive of his own legacy, particularly in the insults he regularly flung at his colleagues in his dissents. For instance, dissenting from a 5-4 ruling last June legalizing gay marriage, he called the court “a threat to American democracy.”
“Justice Scalia’s sarcasm and invective did him a great disservice,” Mr. Binnie, who retired from the Supreme Court in 2011, said in an interview by e-mail. “He was a very bright and thoughtful man and might have had much more influence on his colleagues and on American law had he dialled back on the abuse. He took on the role of a celebrity rock star who enjoyed smashing his guitar on stage to the applause of right-wing conservatives. It was good fun but left him a diminished judge.”
Justice Scalia met many Canadian judges over the years. He gave the keynote address in Calgary two years ago on the occasion of the Alberta Courts’ 100th anniversary. He spoke at the Cambridge Lectures in England, a forum for Canadian lawyers and judges. But they could not accept his ideas.
“Horses used to have the right of way on the road,” John Major, a retired Canadian Supreme Court judge, said, using some sarcasm of his own, to explain why he never accepted Justice Scalia’s originalism. “There came a time when courts thought maybe cars should have the right of way.” In particular, he mentioned Justice Scalia’s majority ruling in a 5-4 decision in 2008 extending the right to bear arms. He said Justice Scalia was “unpersuasive” in explaining how the muskets used in 1787 warranted the use of machine guns, under his doctrine of originalism.
Frank Iacobucci, another retired Canadian Supreme Court judge (1991 to 2004), said he did not wish to speak ill of the dead. He mentioned Justice Scalia’s “talent,” intelligence and “terrific pen.” Both he and Justice Scalia are of Italian heritage and they used to kid each other about who spoke better Italian. But “his originalism and his unbelievable parochialism – we just don’t have that.” For instance, in a 2005 case in which the U.S. Supreme Court voted 5-4 to abolish the death penalty for 16- and 17-year-olds, pointing out no other country had that penalty on the books for juveniles, Justice Scalia dissented, saying only American principles mattered.
“We grew up with two legal cultures, English and French,” Mr. Iacobucci said of Canada’s Supreme Court, “and we’ve gone beyond them to look at decisions of many courts – South African, European, Israeli. It’s not that they’re binding, it’s just something to look to. Most of the problems in Western democracies are similar, because most have bills of rights. You’re just looking for ways to improve.”
Mr. Major, who served from 1992 to 2005, was asked how Justice Scalia influenced his philosophy as a judge. “I wasn’t,” he replied. “Too many preconceived ideas were just branded into his way of thinking.” He saw Justice Scalia, a Ronald Reagan appointee from 1986, as exemplifying a partisan political approach at odds with the Canadian and British legal systems: “It’s kind of foreign to me. They don’t seem to project the independence of thought, the open mind I think judges should have.”
University of Toronto law professor David Dyzenhaus explains, in a nutshell, Justice Scalia’s originalist doctrine: “If the text [of the Constitution] provides ‘no cruel and unusual punishment’ and we know that, at the time, flogging was altogether usual and not considered cruel, three centuries later judges should not declare flogging to be in violation of the Constitution.” That is a vastly different approach than the one accepted in the 1929 Persons Case; Canada’s Supreme Court had said women were not “persons” under the 1867 Constitution and could not be appointed to the Senate. A British appeal body overturned that ruling, saying the Constitution is a “living tree” whose protections grow over time.
But if the Scalia view of originalism has been widely rejected by Canadian courts, it influenced former prime minister Stephen Harper. In 2003, Justice Scalia was invited to a University of Western Ontario panel discussion (along with Mr. Binnie) by political scientist Ian Brodie and law professor Grant Huscroft. Mr. Brodie was working for Mr. Harper that year, and went on to be his chief of staff; Mr. Huscroft was Mr. Brodie’s close friend. That same year, Mr. Harper, in opposition, denounced the Supreme Court of Canada for protecting gay rights, which had been left out of the text of the Charter of Rights. He said the court had “illegally” expanded the Constitution. It was an idea unheard of in Canada and owed much to the originalism of Justice Scalia.
In December, 2014, the Harper government appointed Mr. Huscroft to the Ontario Court of Appeal, straight from Western’s law school. Like Justice Scalia, he has opposed in strong language judges usurping the powers of elected legislators. Mr. Harper’s Supreme Court appointments of Russell Brown and Marc Nadon (whose appointment was rejected by the Court) also owe something to the search for an outspoken and unflinching judicial conservative, beyond the “grey middle” in which most Supreme Court judges tend to be found.
Mr. Binnie said Justice Scalia loved free-wheeling debate. “When we had finished the formal part of our evenings bashing away at each other, he would be quickly surrounded by lawyers, judges and law students eager ‘to take him down’ – they thought it would be easy to poke holes in his ‘originalism.’” After asking everyone to call him by the diminutive “Nino,” he would stand in “great good humour in the middle of the circle of shouting critics in his shirtsleeves, batting back the questions and skewering his overconfident challengers. Everyone loved it.”
Mark Tushnet, the William Nelson Cromwell Professor of Law at Harvard, said that if originalism is understood to exclude other interpretive approaches, its influence on the U.S. Supreme Court’s decisions has been limited. Mr. Binnie said Canada has a home-grown version of originalism which it selectively applies. “In the Ontario Secondary School Reference, which had to do with funding the upper grades in Catholic schools, the [Supreme] Court preferred what it called the ‘pact of Confederation’ — an originalist concept if ever there was one — to the evolving equality rights promised by the Charter.”
SEAN FINE – JUSTICE WRITER
The Globe and Mail
Published Monday, Feb. 15, 2016 8:30PM EST
Last updated Tuesday, Feb. 16, 2016 6:54AM EST