Globe and Mail

Lamer worries about public backlash

Angry reaction could affect judges' decisions, chief justice says

Suturday, February 6, 1999
Justice Reporter, Ottawa

Judges may start to shy away from making unpopular decisions in heinous cases because of social repercussions to themselves and their families, Chief Justice Antonio Lamer says.

"It is in these cases I am concerned that as a result of virulent or harsh comments by the press or the public, the most popular thing to do might become the outcome," Chief Justice Lamer said in an interview in his immaculate office overlooking the Ottawa River.

"Judges are human beings," he said. "I would be remiss if I were to say that we are superhuman or that we are not influenced sometimes." His comments came in response to a question about the recent lambasting of British Columbia Supreme Court Judge Duncan Shaw for striking down a section of the law against child pornography and acquitting a Vancouver man of a charge of possession.

Chief Justice Lamer said that while he cannot comment specifically on the B.C. case, it is the sort of situation where the fragility of the justice system comes into play.

"I feel for the local judge who has to make an unpopular decision, acquitting somebody of child molesting, or something," he said. "They live in that community. Their children in school are being told their father is a nut."

In the three-hour interview, the 65-year-old judge also offered several candid insights into the back rooms of the Supreme Court and into his personal life.

He acknowledged that the Supreme Court of Canada is struggling under the burden of trying to interpret the equality provisions in the Charter of Rights and Freedoms.

"If you read the judgments coming out of this court, I think it is apparent that we are struggling," he said. "And the courts below are struggling. There is so much social impact.... How far do we go in terms of seeing that everyone is equal? How far can we afford to go?"

The chief justice also said that:

* Aboriginal rights may present the court with its toughest test over the next few years.

He said the 1997 Delgamuukw decision, a controversial 1997 ruling that opened the possibility of aboriginal title for two native bands, was merely an early salvo.

"Delgamuukw was not the end of the matter. I think Section 15 and aboriginal rights and treaty rights are going to be the main challenges the court will have to deal with."

* It is hypocritical for those accusing the court of being soft on crime to decry at the same time the increasing number of wrongful convictions being unearthed across the country.

"They are sucking and whistling at the same time. On the one hand, they say we are too easy on the criminals. On the other, they are saying we convict the innocent.

"If you don't want to convict the innocent, you have got to pay a price. The price is to acquit a certain amount of guilty people. The question is: How many guilty people are we prepared to acquit on the basis of reasonable doubt in order to be sure we are not convicting the innocent?"

* He also said he questions how many people truly believe in the presumption of innocence. "I think it is very difficult for the public and jurors, in particular, to really, really give the accused the benefit of reasonable doubt.

"In the same way, people think that when you get acquitted that you are really guilty. That must be awful if you really are innocent." Chief Justice Lamer said he will retire only if his love of his job fades, or if an early-warning system he has set up among his intimates to monitor his intellectual output is activated.

"Eighteen or nineteen years ago, I asked my first two or three law clerks: 'If you ever see me declining, send me a letter.' They will remember that. But the main person will be my wife. The day she says to me I'm over the hill, I will say, Okay.'"

He also revealed he has kept daily diaries since he became a lawyer in 1957, in part to protect himself against false accusations.

"If you said to me: 'You molested me in Montreal on May 15, 1957,' I will go to the archives and pull out my diaries. I will be able to say on that date I was arguing a case before a jury in Joliette."

The Chief Justice has also retained another formidable mass of documentation -- photocopies of transcripts from prosecutions of Front de Libération du Québec terrorists in the 1970s as well as trial exhibits from the legal proceedings in the FLQ kidnapping and slaying of Quebec Labour Minister Pierre Laporte in October, 1970.

"I am waiting for somebody to try to write a book saying it was all an accident. Then I will pull it out. I will pull out the pictures of Pierre Laporte on the slab. I have all of that, and they know I have it. That is why they are waiting for me to pass away before they start writing a book of lies."

With a new appointment to the Supreme Court due to take place this spring, Chief Justice Lamer said it is especially important that the nominee be sociable and capable of yielding in the give-and-take of intense debate.

"Is it the kind of person we can live with? It is not everybody who has the quality to work in a collegial way. If I had the choice between a genius who is an unbearable person and somebody who is just above average, I would go for the one who is slightly above average." On the controversial subject of how justices are appointed to the court, Chief Justice Lamer said he would be willing to answer questions from a parliamentary review committee -- but not if they probed his views on matters that might come before the court or delved into his personal life.

"I would say it's none of your business; I refuse to answer that question."

Examining the views of a potential justice could be dangerous and misleading, he said. Not only are those views subject to change, but they should generally not even intrude on how a case is judged.

He cited his concurrence last year with what is known as the Delwin Vriend decision, in which the court extended the protection of Alberta human rights legislation to sexual orientation.

"I'm not sure I would have signed Vriend 25 years ago. I have changed. I have evolved. I have mellowed."

Chief Justice Lamer said it puzzles him that those who favour a public nomination process think they will discover useful secrets. It is almost impossible for a judge or prominent lawyer not to be a fully known quantity within their profession, he said.

"Your demeanour, the quality of your judgments, everything that has to do with your professional work is visible. If you are a drunk, people will know. If you are high on drugs all the time, people will know. Everything you have a right to know is available.

"As a judge, you apply the law. If I'm a Muslim and I am a judge, I don't acquit someone of bigamy because I think it is okay. I might disagree with the law, but if it is constitutional, I have to apply it."

In an interview, Chief Justice Antonio Lamer shows human side to the Supreme Court.
DAVE CHAN/The Globe and Mail


On retirement:

"Not as long as I have the love of law and the sacré feu -- my sacred fire. I'm like a baseball player. I am having fun."

On Canada's adopting U.S.-style confirmation hearings:

"I hope not. Unless our politicians are so different from American politicians, we would be reintroducing politics back into the process. In the U.S., the nice questions are asked by the president's party. The hard questions and the badgering come from the other side. They aren't interested in what kind of judge a judge will be. They are interested in embarrassing the president's choice. It is pure polities."

On judges having to rule on the fairness of legislation under the Charter of Rights:

"Suddenly, we were asked to judge the law. Judges were not keen to do that, especially the older ones. They had a very hard time coping with it. In the beginning, nobody knew where the heck to take this animal. I suspect many judges retired as soon as they could, because they didn't like their new job."

On the court's actively "reading in" new phrases in order to change legislation:

"I think there is some misunderstanding. We haven't read in much. Quite to the contrary, we do much more suspending of the effects of unconstitutionality. But if it is a question of reading in a 'not' or taking out a 'not,' why not?"

On critics who say the Supreme Court is soft on crime:

"I don't care, because we grant leave in cases in which something is obviously wrong -- or seems at first blush to be wrong. If you look at the stats and see how many appeals got turfed out after hearing counsel for the accused but without hearing the other side, you would realize they are full of baloney.

"It is like [Quebec Premier] Lucien Bouchard saying we are a Tower of Pisa, always siding with the feds. Well, if you do a study of this court's decisions since 1875, you will see it has been about 50-50."

On whether the high number of split decisions by the court harms their legal value:

"There were a few cases where people went in all directions, but not many of them. A split is not too bad. The majority is the majority, and that's it. After all, on some issues our society is split down the middle."

On Askov, a decision that led to charges being stayed in more than 50,000 Ontario criminal cases because they took too long to come to trial:

"Of course, there was a price society had to pay to get this moving. In some provinces, the criminal justice system was not a very high priority. There ain't many votes in that. I think Askov was a smack on the hand. It said: 'We do mean business. Clean up your act.' It is cruel and unusual punishment to come have to wait two or three years to get your trial."

On the 1981 landmark decision on patriating the Charter and the 1998 decision on Quebec secession:

"They seem to have pleased everybody. I think the court rose to the occasion and demonstrated to Canadians the importance of having a Supreme Court. When the country gets into trouble, the Supreme Court has been there to come to the rescue.

On being criticized:

"One has to be careful when criticizing the system. I'm not saying not to criticize. God, yes, I welcome criticism. But it should never be unkind. It should be professional. We are not infallible. The kind of criticism I do not accept is when it is unfair. It is misleading to the public. It makes us look stupid."

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