A liberal leaning

Antonio Lamer is Canada’s new chief justice

BARRY CAME July 9 1990

A liberal leaning

Antonio Lamer is Canada’s new chief justice

BARRY CAME July 9 1990

A liberal leaning

Antonio Lamer is Canada’s new chief justice

Antonio Lamer’s destiny might well have been different. He was born and raised in Montreal’s brawling east end, a neighborhood of aging factories, dingy corner taverns and working-class tenements. It was a hard place in which to grow up 40 years ago, as Lamer is fond of recalling. “In my block, everybody but two of us went to the penitentiary,” he reminisced recently. “The other guy’s a dentist. I became a lawyer.” And that was a momentous decision. It set Lamer on a path that led from Montreal’s mean streets to the pinnacle of the country’s legal profession. Last week, 33 years after Lamer was called to the Quebec bar,

Prime Minister Brian Mulroney appointed the 57-year-old reform-minded specialist in criminal law as chief justice of the Supreme Court of Canada.

The choice had been widely anticipated. Only the timing, calculated to deflect attention away from the Meech Lake constitutional fiasco, was a surprise. But, in choosing the bilingual Lamer to succeed chief justice Brian Dickson, who retired last week, the Mulroney government restored the tradition of alternating the Supreme Court’s top position between anglophone and francophone justices.

Mulroney broke that tradition when Dickson followed his predecessor,

Bora Laskin, in 1984. The latest choice—Mulroney’s sixth appointment involving the country’s highest bench—also signalled that the court’s progressive leaning of recent years is likely to continue. Lamer’s record shows him to be one of the most liberal judges on the nine-member court. An activist jurist, he has used the 1982 Charter of Rights and Freedoms to protect individual liberties from encroachment by state power. “He is ideal for the job of leading the court in the second decade of the charter,” said James MacPherson, dean of Osgoode Hall Law School in Toronto.

Added MacPherson: “He brings to it a rare combination of practical knowledge and scholarly reflection.”

The new chief justice, who took over his office on Sunday, brings a wealth of experience to the post. Despite his relatively young age, Lamer is the longest-serving member of the court. Then-Prime Minister Pierre Trudeau appointed him in 1980, elevating him from the Quebec Court of

Appeal. Prior to that, Lamer served on the Quebec Superior Court, an appointment he accepted when he was only 36. He has also been chairman of the Law Reform Commission, national chairman of the Criminal Law Section of the Canadian Bar Association, founder of the Defence Attorneys Association of Quebec and special counsel to the Quebec

minister of justice in charge of the reorganization of the provincial court system. But Lamer regards those impressive credentials as secondary to his call to the bar in 1957, an occasion he still describes as the major event in his life. As he told Maclean ’s last week, shortly after his appointment was announced, "The most important day in any judge’s life is the day he became a lawyer.”

As a judge on the country’s highest court, Lamer has been liberal in interpreting the charter’s Section 7, known by lawyers as the “fundamental justice clause.” The section guarantees “the right to life, liberty and security of the person.” And Lamer’s specialty has been applying the clause to criminal cases. In that arena, his decisions have been instrumen-

tal in placing limits on police power and in curbing the use of evidence gathered through illegal wiretaps and entrapment.

Many of the rulings that Lamer has written on behalf of his fellow Supreme Court justices have been controversial. In one recent case, Lamer played a key role in a decision to overturn the drug-trafficking conviction of Marc André Greffe, whose constitutional right to legal counsel was violated during his Calgary arrest; after the arrest, Greffe was found to be carrying 200 g of heroin in a condom hidden in his rectum. In another ruling, Lamer wrote the court’s decision ordering a new trial for Yvan Vaillancourt, a Montreal man convicted of second-degree murder during a holdup; along with the majority of his fellow justices, Lamer found that the charge against Vaillancourt had not been proven “beyond a reasonable doubt.” Declared Montreal lawyer Jean Dury of Lamer’s record: “He makes sure the rights of individuals are always protected to the limit against the intrusion of the state.”

Indeed, individual liberty has been the key to the majority of Lamer’s decisions. In an analysis that political scientists Ted Morton of the University of Calgary and Peter Russell of the University of Toronto conducted of the Supreme Court’s first 100 charter rulings, Lamer emerged among those judges of the court most likely to rule for the individual. According to the study, he did so in 47 per cent of cases involving the charter, substantially above the average for the court as a whole, which ruled in favor of individual rights only 35 per cent of the time.

Lamer makes no attempt to disguise his inclinations.

“People are the most important thing of all,” he said last week. “The charter gave the individual the tools to stand up to oppression from the collectivity. They are rights that cannot be taken away by the passing of a law.”

Despite his unequivocal stand, however, the new chief justice faces clear challenges in his new role. He inherits a Supreme Court that is divided over how the charter should be interpreted—and under unprecedented scrutiny. But legal experts say that the court has so far dealt mainly with comparatively easy cases, requiring only reaffirmations of existing legal principles in light of the eight-year-old charter. But it is now moving into cases involving such contentious social issues as freedom of speech and association, and the rights of the media. Said Calgary's Morton: “It will be an interesting court under Lamer, in the sense that the honeymoon is over and it will have to deal with some difficult decisions.”

One of Lamer’s main problems will be the country’s uncertain political atmosphere in the aftermath of the failure of the Meech Lake constitutional accord. Although the agreement’s demise left intact the nation’s existing Constitution—based on the British North America Act of 1867, but including several additions and amendments—the court is certain to find that its rulings are open to criticism from detractors of federalism in Quebec. That is likely to be particularly evident in cases involving such sensitive questions as minority and language rights. Said Morton: “The defeat of Meech Lake and its ‘distinct society’ provision for Quebec adds a new political ambiguity to legal definitions. A decision by the Supreme Court one way or another

at this time could throw gas on the fire.”

Lamer downplayed those potential difficulties. Said the chief justice: “Meech Lake has nothing to do with this court. We have the Constitution we had, and we will continue to apply it. Meech Lake is in the political arena. It’s for the politicians, and I have them all in my prayers.”

Some members of the legal profession, however, view Lamer’s claim that the court can rise above politics with skepticism. According to his detractors, he has countenanced what they claim has been a growing politicization of the court. Said Michael Mandel, a Toronto lawyer, author and Osgoode Hall law professor: “There are some who are very critical of the phoneyness of the court in trying to deny its political bent. Lamer must be identified with this general trend.” According to Mandel, the court has been biased in favor of business and political interests—ruling in one case that the

government of British Columbia acted legally when it passed a law in 1988 to prevent even peaceful strikes by a coalition of labor unions opposed to its policies. Declared Mandel: “The court so far shows precious little in the way of principle and great helpings of political expediency. In some opinions, Lamer has been part of the most outrageous cases.”

And there is no question that Lamer is one of the more extroverted members of the Supreme Court. With his trademark bushy moustache, now flecked with grey, and his vocal pride in his son by his first wife and the two stepchildren that he adopted after he remarried in 1987, Lamer portrays an image that is far removed from that of his more aloof colleagues. As a reflection of that, Lamer planned

to celebrate his appointment by taking a twoweek vacation aboard his boat, a classic 1938 Chris-Craft cabin cruiser that he maintains on Lake Champlain, on the Quebec-New England border. Said Lamer, whose hobbies also include flying and hunting: “I’m going to drop the anchor in a bay I am not going to disclose to you. We’re going to take good books and we are going to rest.”

When he returns from his break, however, Lamer will bring to his new task an abiding pride in his working-class origins on the tough streets of Montreal. It is a sense that also colors his regard for the role and importance of the institution that he is taking over. He told Maclean’s-. “We are an essential service. We are in the business of freedom and the business of justice. What’s more important than that?”