Globe and Mail

The mark of Lamer

JEFFREY SIMPSON
The Globe and Mail
Wednesday, August 25, 1999

IN OTTAWA -- Antonio Lamer will leave the Supreme Court of Canada in January, having served a decade as Chief Justice, but his legacy will remain.

The chief justice sits among nine jurists on the Supreme Court. Securing consent among such strong-minded jurists is akin to herding cats. The court, therefore, often split during his 10 years at the top; but, in two hugely consequential areas, he wrote judgments for a unanimous court.

These were the rules for secession, and aboriginal affairs. Long after Chief Justice Lamer has donned his slippers, Canadians and their governments will be checking his judgments for guidance about what they can or should do because of how he and his colleagues defined the law.

The so-called Quebec secession case has already become entwined with political debate. The judgment, read in its entirety, offered more support for the federal government's position than that of Quebec. Any secession question had to be clear. A majority had to vote in favour (although the court refused to pronounce on what sort of majority.) Nothing in domestic or international law permitted a legal, unilateral secession. Nothing could guarantee a successful conclusion to any negotiations between Quebec and the rest of Canada.

These and other arguments tended to uphold the federalist position. But a section in the judgment stated that the rest of Canada must negotiate something -- just what was necessarily left unclear -- if Quebec did vote to secede. Secessionists immediately elevated that section to constitutional dogma, telling Quebeckers that the rest of Canada might huff and puff for a while following a Yes vote, but would negotiate eventually what Quebec wanted.

For the moment, Chief Justice Lamer's judgment in the secession case, unanimously subscribed to by his eight colleagues, remains an exercise in legal theory. Very soon, however, the federal government will start defining what it considers a clear question and a necessary majority for secession to be permitted. And we can rest assured that the Ottawa ministers will be pointing to the court's ruling.

If the secession judgment offered clarity and solace for both sides, Chief Justice Lamer's ruling in the Delgamuukw case left everyone in British Columbia somewhat or very perplexed. Delgamuukw certainly widened the aboriginal title over land, but just how and when remain widely disputed.

Delgamuukw went beyond any previous rulings on aboriginal title in Canada, and moved past the two leading Australian aboriginal cases. Since most of British Columbia is under some form of aboriginal claim, Delgamuukw will be central to aboriginal litigation for years to come. Also heard in the years ahead will be Chief Justice Lamer's enjoinder in a single line at the end of Delgamuukw for parties to negotiate.

Chief Justice Lamer, a defence lawyer before becoming a judge, also placed his stamp on the court in upholding the rights of the accused. Reputable legal scholars have argued that those rights or protections now exceed even those available in the United States, where critics made the U.S. Supreme Court in the 1970s and 1980s a political target for being more concerned with criminals than crime.

Nothing of the kind occurred in Canada. Chief Justice Lamer led a group of five, and sometimes six, judges who used Charter rights to secure and extend the rights of the accused. (He did vote with the minority in the Feeney "bloody shirt" case, in which the majority threw out a murder conviction because police following a tip had failed to secure a search warrant.)

As they say in legal parlance, in my respectful submission, the court went too far in criminal law, but it never provoked a backlash among the public. Even the Reform Party, thrashing about against "judge-made" law, never properly assembled the available evidence about the court's limited sympathy for law-enforcement agencies.

Jean Chrétien, in exercising the powers of the imperial prime ministership, will now select Chief Justice Lamer's replacement. For reasons of intelligence, writing skills, general leadership, longevity on the court, gender and geography, place your money on Madam Justice Beverley McLachlin of British Columbia.

As a Supreme Court judge in the age of the Charter of Rights and Freedoms, she is already more important than most of the federal cabinet. As chief justice, she would become more important than all but two or three of them and be around for much, much longer.

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