CANADA

A NEW TOP GAVEL

CHIEF JUSTICE ANTONIO LAMER TAKES OVER A POLITICALLY CHARGED SUPREME COURT AGENDA

Anthony Wilson-Smith October 22 1990
CANADA

A NEW TOP GAVEL

CHIEF JUSTICE ANTONIO LAMER TAKES OVER A POLITICALLY CHARGED SUPREME COURT AGENDA

Anthony Wilson-Smith October 22 1990

A NEW TOP GAVEL

CANADA

CHIEF JUSTICE ANTONIO LAMER TAKES OVER A POLITICALLY CHARGED SUPREME COURT AGENDA

In his second-floor, corner office in the Supreme Court of Canada building, Chief Justice Antonio Lamer is close to many of the people and activities that fill his life. Through the window, the 57-year-old Lamer can see the Ottawa River, where he plans next spring to pilot his 52-year-old cabin cruiser, the Mahogany. Farther away, Lamer has a clear view of the Gatineau Hills, where,when he has the time, he packs a lunch, takes his dog and walks for up to five hours. Within the office, one table is filled \ with pictures of Lamer’s wife, Danièle, and his son, Stéphane. Two walls are dominated by floor-to-ceiling shelves lined with law books that Lamer accumulated during 21 years as a judge and 12 years as a lawyer before that. And on a table close to his desk, Lamer displays a lifelike carved wood statue of a monkey dressed in the traditional black robes and white wig of a judge. Said a smiling Lamer, a native of Montreal, who became the chief justice of the court on June 30: “It is there as my act of humility.” At a time when the Supreme Court is playing a vastly increased role in shaping the lives of ordinary Canadians, the reminder is particularly apt.

With the adoption of the Canadian Charter of Rights and Freedoms in 1982, the court’s scope for determining the rights of Canadians and their institutions expanded dramatically. This fall, the Court’s nine judges will be asked for decisions on cases ranging from the legal rights of a fetus to the permissibility of mandatory retirement. At least one decision may have profound political consequences: the court will be asked to declare Prime Minister Brian Mulroney’s recent expansion of the Senate unconstitutional. Said Lamer, in an interview with Maclean ’s “Since the charter came into effect, we no longer only rule on cases. Now, we rule on the laws themselves.”

The court has already demonstrated its will-

ingness to overrule legislators. A study released earliér this year by two political scientists—Peter Russell of the University of Toronto and Ted Morton of the University of Calgary—showed that, of 100 decisions the court made from 1984 to 1989, it used the charter 12 times to overturn provincial statutes. At the same time, even some judges say that they have been struck by the speed with which the court has instituted change. Declared Justice William Stevenson, a native of Alberta and the newest member of the Supreme Court: “Our courts have been doing in a decade what United States courts have done in more than 200 years.”

That activity has brought the court under

growing scrutiny. Although a lengthy process of formal and informal screening precedes any appointment to the court, the final selection rests with the Prime Minister. Mulroney, who has appointed seven of the justices on the current bench, has been widely praised for his choices. Declared Ian Scott, the former Liberal attorney general of Ontario: “The present court is better than we have ever had.”

Still, with the Supreme Court now wielding greater power, some lawyers claim that the federal government should adopt a more open process in appointing judges. Said Russell: “In a healthy democracy, we should have a look at their general orientation before they take the job.” The United States’ Constitution allows

the president to select Supreme Court judges, but his nominees face public scrutiny and frequently harsh questioning by members of the Senate judiciary committee and the full body itself—which may vote a nomination down. But many Canadian legal experts dislike that system because, they say, the Senate’s votes are often based on a nominee’s philosophical views rather than on his judicial qualities. One critic of the American selection process is Stevenson, who joined the court on Oct. 1. He told Maclean ’s: “I would not have allowed my name

to be entered for consideration if my family and I had to undergo that kind of process.”

And despite the obvious prestige of such an appointment, there are some marked disadvantages. The salary—$167,000 a year—is a fraction of what a top lawyer can make in private practice. As well, workweeks routinely range between 60 and 80 hours. Said Ottawa lawyer Stuart Langford, a close observer of the court: “The government treats the Supreme Court judges like wage slaves.”

Because of that, some potential nominees are simply not interested—and others later regret their decision to accept. Montreal lawyer Yves Fortier, now ambassador to the United Nations, who was twice approached by Mulroney in 1987, twice declined, despite a widespread consensus that he would have be-

come the court’s next chief justice. Former justice Willard (Bud) Estey, who retired from the Supreme Court in 1988 after 11 years on the bench, intensely disliked Ottawa and described the legal requirement that Supreme Court justices have their full-time residence in the city as “capital punishment.” Lamer, who is warmly remembered in Quebec legal circles for his outgoing nature, said that he has changed his lifestyle since moving to Ottawa to assume his seat on the Supreme Court bench in 1980. Declared Lamer: “I have found a new circle of friends. Now, I am an old monk.”

In fact, each of the nine justices has a distinctive repertoire of personal and legal mannerisms. Lamer, after weathering early perceptions that his appointment to the high court was undistinguished, has won increasing respect. And his gregarious manner makes him a favorite of other court members. Said one lawyer who deals with Lamer frequently: “He takes the job seriously, but not himself.” Among other long-serving court members, Justice Gérard La Forest, 64, of New Brunswick, is considered to be the court’s reigning intellectual and expert on constitutional matters, but many lawyers say that he is distant and difficult to deal with. Justice Bertha Wilson, 67, from Ontario, who may retire soon, is considered a liberal and is one of the court’s brightest thinkers, but she is unorthodox in her legal reasoning. Claire L’Heureux-Dubé, 62, of Quebec, who was also considered a leading candidate to succeed former chief justice Brian Dickson after his retirement last June, is regarded as a conservative on law-and-order issues, an expert on family law, but lacking experience on constitutional issues. Albertan Stevenson, 56, is a low-key, gentle figure with a dry wit and a reputation as a thoughtful and disciplined jurist. But lawyers say that it is too early to gauge the performance of Stevenson or of the four other justices appointed since May, 1988. They are: renowned former Toronto criminal lawyer John Sopinka, 57; former Quebec jurist Charles Gonthier, 62; Peter Cory, 64, of Ontario; and former B.C. Supreme Court chief justice Beverley McLachlin, at 47 the court’s youngest justice.

For his part, Lamer said that one of his principal aims as chief justice will be to shorten the often-lengthy delay between cases being heard by the court and a final judgment being rendered. Said Lamer: “It is necessary to reflect on each case in a serene and thorough manner. But it is also necessary to address each case a little faster than we have been doing.”

In fact, it is already evident that Lamer has his own firm ideas on how he will run the court. Last week, he said that his actions will be guided by beliefs he has developed during his 10 years as a Supreme Court judge. Declared Lamer: “A judge is just an ex-lawyer—and if you licked boots while you were a lawyer, you will also lick boots as a judge.” Plainly, Lamer brings a downto-earth pragmatism to one of the country’s most powerful offices.

ANTHONY WILSON-SMITH

NANCY WOOD