January 15, 2024
SEAN FINE JUSTICE WRITER, THE GLOBE AND MAIL
PUBLISHED JANUARY 24, 2024 – UPDATED JANUARY 25, 2024
There was just one Peter Russell. It only seemed there was an entire chain of them down through the years.
The one who established whole new fields of political science studies in the 1960s – on how judges’ personal leanings matter, and on the Supreme Court as a political force – was the same one passionately denouncing wrongs committed against Indigenous peoples, while lecturing on his new book on sovereignty in 2017.
The one who found himself, unhappily, on a stage with Ugandan dictator Idi Amin in 1971 was also the research director for the 1977-81 McDonald Commission on Certain Activities of the RCMP (where he hired a young American professor named Antonin Scalia to write a report), and an adviser to governor-general Michaëlle Jean in 2008, when prime minister Stephen Harper asked her to prorogue Parliament.
Prof. Russell, who died on Jan. 10 at the age of 91, was an academic sought after for his practical wisdom who turned up, Zelig-like, whenever Canada’s Constitution was being debated in some way, over a half-century or more.
Yet he never received formal legal training, apart from auditing some law courses at the University of Toronto, where he taught political science from 1958 to 1996. Even so, Supreme Court judges read him and cited his works in their rulings.
“Peter Russell‘s deep understanding of the Constitution put him in the same rarefied group as the late Chief Justice [Brian] Dickson, Professor Peter Hogg and a handful of others,” said former Supreme Court justice Ian Binnie.
Although non-partisan, he saw himself as something of an activist, at least on Indigenous issues – calling himself “an agent of decolonization” who went “riding the tide of history, and adding a little kick here and there.” (The description is from the memoir he wrote in a Toronto retirement home, which is to be published posthumously.)
His overarching principle, according to University of Waterloo political science professor Emmett Macfarlane, was principle itself.
“He was most worked up when he felt that the people in power, the political class, were upending or eroding the norms, the ethics, the political morality necessary to ensure that Canada is a healthy democracy,” Prof. Macfarlane said.
Peter Howard Russell was born on Nov. 16, 1932 in Toronto, and had a happy childhood in middle-class Leaside; his father, Alec, was an Eaton’s executive, and his mother, Jean (née Griffin) was a nurse and homemaker. He excelled in school, especially after leaving behind a teacher who felt he was overachieving. And he played peewee hockey with future NHLers Eric Nesterenko and Peter Conacher.
After earning his Bachelor of Arts degree in history and economics at the University of Toronto in 1955, he won a Rhodes Scholarship and went to Oxford University, where he captained the hockey team and received a bachelor’s degree in the interdisciplinary field of philosophy, politics and economics. In 1958, he married Sue Jarvis, an athletic university graduate and hospital laboratory technician, from an old Canadian family. They had three daughters and a son and were married for 65 years, until his death.
He expected to be a businessman like his father, and went to work at Aluminum Company of Canada in Montreal, in the personnel department. But through a connection he landed a surprise interview at the University of Toronto department of political economy, and was asked about his politics. I’m a liberal, he said, and was told that the department already had a Marxist, and needed balance. He was hired on the spot for $5,000 a year, and never did have a PhD (he had two bachelor’s degrees).
Intrigued by law, he audited courses at the university’s law school, and one day approached professor Bora Laskin – a future Supreme Court Chief Justice – to tell him he was intent on doing a law degree. Prof. Laskin shook his finger and told him he would lose his individual perspective if he did so.
The advice stuck, and everywhere he ventured he found virgin soil for his research, at the intersection of politics and law. He read all the constitutional decisions of the British legal body that until 1949 was Canada’s final court of appeal, and all the constitutional decisions of the Supreme Court that came before and after. His first book, published in 1965, Leading Constitutional Decisions, spurred him to become a “judicial realist” – a believer that judges’ personal leanings and affiliations influence their rulings.
That was conventional wisdom in the United States, but fresh and controversial in Canada’s conservative legal culture.
“He recognized the political role of the Supreme Court of Canada and constantly reminded us about this, pouring cold water on the idea that judging is a neutral activity,” former University of Ottawa law dean Adam Dodek said.
That work led the Royal Commission on Bilingualism and Biculturalism to ask him to research and study the Supreme Court’s approach to language. He discovered there had not even been a major history written of Canada’s top court. For the next two years he holed up in a carrel in the Supreme Court library in Ottawa. Only two of the nine judges at that time understood French, he learned. Yet there was no translation service during hearings. Francophone lawyers were at a disadvantage. And official reports of decisions were sometimes published in English only, making them inaccessible to unilingual francophones. By 1969, his work had led to all reported Supreme Court decisions being published in both official languages, and simultaneous translation services during hearings.
“I was now addicted to research that makes a difference in the real world,” he said in his memoir.
That same year, the U.S. Rockefeller Foundation turned to him to make a difference in teaching in the developing world. With his wife and young family, he went to Uganda from 1969 to 1971, to teach political science at Makerere University and advise the Attorney-General, Nkambo Mugerwa.
But then – it was not a life short on adventure – army chief Idi Amin launched a coup.
Mr. Mugerwa was put under house arrest and called Prof. Russell to say that he would be freed if the professor would agree to write a report on the justice system. Shortly after Prof. Russell’s report was done, the dictator arranged for the Canadian to sit on a stage with him at a news conference.
“Here we have this Canadian justice expert in our country for nearly two years, and nothing has been done to implement his ideas,” General Amin said, according to Prof. Russell’s memoir. “Now I have passed decrees based on this report. You can see why Uganda does not need a Parliament.” Prof. Russell felt he’d been made a fool of, but Mr. Mugerwa was freed, and left for Tanzania to become a law professor.
In 1974, Prof. Russell received a phone call that would start a lifelong connection with Indigenous issues. James Washee, then Grand Chief of the Dene Nation, phoned from Yellowknife and told him he was in urgent need of a constitutional expert.
Prof. Russell had never even mentioned Indigenous peoples in his university lectures. Nor did they come up in the books he and his students read. He flew up to Yellowknife where a Dene woman asked him two questions: “What is sovereignty? And how did the Queen get it over us?” Prof. Russell would go to his colleagues in the U of T law school and ask them the second question. No one knew. His research, once again on a vast, blank canvas, found Canada had inserted a boilerplate clause in treaties saying Indigenous rights to the land had been surrendered – though the clause had not been translated for their treaty partners. In his usual blunt style, his memoir calls the treaties “a con job.”
He would help found a support group to get the Dene people’s message out across Canada in opposition to a proposed pipeline through the Mackenzie Valley. He would chair the research advisory committee of the Royal Commission on Aboriginal Peoples from 1992 to 95, and be part of the research advisory committee for the inquiry into the 1995 death of protester Dudley George at Ipperwash Provincial Park. And he would write several works on sovereignty, the last one in 2021, attempting for the rest of his life to answer the questions put to him in 1974 in Yellowknife.
“Peter spent many years helping the Indigenous Peoples of Canada find their rightful place,” said Georges Erasmus, a former leader of the Dene nation who co-chaired the Royal Commission on Aboriginal Peoples. “He was always a friend to our people, we will miss him.”
His passion for his work, and for Canada, was undeniable. Mr. Binnie recalls talking to him as Prof. Russell lined up for the 1981 Supreme Court hearing on the patriation of the Constitution.
“The distinguished professor was as excited with anticipation as any superfan before a Taylor Swift concert,” Mr. Binnie said.
The tide of history would turn in 1982 with the introduction of the Charter of Rights and Freedoms, which expanded judges’ powers to strike down laws, and gave Prof. Russell new terrain to explore.
“He helped sponsor and co-write the very early quantitative studies to show how judges diverged in how they ran Charter cases,” University of Calgary political-science professor Ian Brodie said. Prof. Russell’s former students Ted Morton and Rainer Knopff, would write influential works asserting that left-wing activists had hijacked the courts, using the Charter. Prof. Brodie, who was an aide to Mr. Harper, would argue that judges were acting as if they were now sovereign over Parliament.
Mr. Morton, a former Alberta finance minister, said Prof. Russell was an inspiring teacher. “He rarely told his students that they were wrong (even though we often were). Rather, he would suggest examples that contradicted our argument and tell us we had best figure out how to reconcile the two. This would force us to figure out a better argument on our own.”
Meanwhile, he did not simply study judges and judging; he helped Ontario develop a merit-based process for the appointment of judges, and he chaired the first independent screening committee for judicial candidates in 1988.
Adrienne Clarkson, a former governor-general, said she consulted him regularly for his “wide perspective.” Bob Rae, a former Ontario premier, said he consulted him on minority governments, security and intelligence, the constitution, Indigenous issues, “and life itself.” Rosalie Abella, a former Supreme Court judge, said his work was objective and not self-serving, and showed judges how they were perceived by those who weren’t “swimming in the water” with them.
As an observer of constitutional law and politics, Prof. Russell was not a fan of U.S.-style originalism, which he told The Globe and Mail was “absolute nonsense,” in which the words of the founding fathers were treated as having biblical importance. But he admired Canada’s evolutionary approach, that of “farmers who grow their constitution as a living organism,” as he put it in his memoir.
In the title of his 2017 book, Canada’s Odyssey: A Country of Incomplete Conquests, Prof. Russell expressed his view of what made this country stand apart. “In an era of conquest, the elites were never able to conquer completely,” explained Robert Vipond, a former student and later Prof. Russell’s colleague on the political-science faculty. “And from that, one can derive a history of and sensibility for pluralism that he thinks really is the hallmark of what is best about Canada.”
He was invested as an officer of the Order of Canada in 1987, and promoted in 2022 to companion.
Prof. Russell leaves Sue; his children, Catherine, Mary, Barbara and Alex; five grandchildren and two great-grandchildren.