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Monday, July 12, 1999

Politicians duck divisive issues, chief justice says
'Thank god we're here': If legislators choose not to legislate, courts have no choice

Janice Tibbetts
Southam News

Wayne Cuddington, Ottawa Citizen
Antonio Lamer, Chief Justice of the Supreme Court of Canada, is the longest serving member of the court.

OTTAWA - Supreme Court judges are faced with some of the most difficult social issues of the day because governments are leaving matters up to the courts to decide, according to Antonio Lamer, Chief Justice of the Supreme Court of Canada.

While critics contend the courts have gone too far in overstepping the will of elected politicians, Judge Lamer says sometimes judges have no choice, particularly when governments shy away from divisive issues.

"Thank God we're here," he said in an interview. "It's not for me to criticize legislators but if they choose not to legislate, that's their doing. If they prefer to leave it up to the court that's their choice. But a problem is not going to go away because legislators aren't dealing with it. People say we're activist, but we're doing our job."

Judge Lamer, a Montrealer appointed in 1980 by former prime minister Pierre Trudeau, is the longest serving member of the Supreme Court. This month, he begins his 10th year as chief justice.

In a wide-ranging interview in his office overlooking the Ottawa River, he touched on everything from judicial activism, the growing scrutiny and criticism of his court, and how its role has changed since the Charter of Rights and Freedoms was proclaimed in 1982.

That ended parliamentary supremacy over laws by giving judges, who until then had been largely invisible, the power to interpret personal rights and overrule governments.

"When I read, when I hear, that the courts have become activist, well it hasn't become activist under my stewardship, it has always been activist," said Judge Lamer, a Charter champion who is considered to be one of the most left-leaning members of the bench.

"With the introduction of the Charter it fundamentally changed our judicial system."

Some of the top controversial Charter areas in which the court has ruled include gay rights, abortion, mandatory retirement, doctor-assisted suicide, child support, division of assets upon divorce, aboriginal rights, privacy of rape victims and police powers.

Despite growing criticism that the court is becoming more aggressive than ever, Judge Lamer said the judges, if anything, have been conservative in their approach and are reluctant to strike down legislation, particularly when taxpayers' money is involved.

As an example, he cited a 1990 ruling in which the court found that the mandatory retirement age of 65 is justified. (Federally appointed judges, including Judge Lamer, now 66, are not required to retire until they're 75.)

"One can't say we've run away with the football," he said. "I think we've struck a happy balance deferring to Parliament's choice . . . taking into account that there are limited resources and then if we start extending programs to everybody, the money has to come from somewhere."

"Either taxes have to go up or within the envelope of that social program some group is going to have its benefits go down, so we're alerted to this. Unless there's blatant discrimination, you don't interfere."

Judge Lamer compared the role of Supreme Court judges to the Bank of Canada in setting interest rates, saying that sometimes all they can do is make a decision and then hope for the best, only to find out their ruling has had a contrary effect.

Judge Lamer's court has encountered intense opposition, particularly from police, who have accused the judges of stripping police powers and being soft on crime. The political right is also a leading critic of the court's boldness in overriding lawmakers with rulings such as the 1997 case of Delwin Vriend, in which the Alberta government was ordered to include protection for homosexuals in human rights laws.

Court critics say the judges always rule in favour of aboriginal rights, gay rights and women's rights. Judge Lamer counters that the nine judges are just keeping in sync with society. Then, he said, there are times they have to make unpopular decisions simply because it's the right thing to do.

"I'd be concerned if we weren't," he said. "It might be a sign we're putting our nose in the wind and saying 'What's the popular thing, let's do it?'"

Judge Lamer said he welcomes criticism from all corners, as long as its not "mean and personal."

Although he refused to be specific, his comment was a thinly veiled reference to Alberta Justice John McClung's attack on Justice Claire L'Heureux-Dube after she criticized one of his sexual assault judgments in the Alberta Court of Appeal. Judge McClung suggested in a letter to the National Post last winter that the "personal invective" in Judge L'Heureux-Dube's rulings are linked to the high rate of male suicide in Quebec. Judge L'Heureux-Dube's own husband had committed suicide.

"There's a way of being very critical that hurts the judge and it hurts the person," Judge Lamer said. "There's a way of being very severe. We've had recent examples. We've had hysterical reactions with language that was totally unacceptable."

None of the nine judges on the Supreme Court has ever commented on the widely reported McClung affair, which garnered the judge a rebuke from the Canadian Judicial Council.

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