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Thursday, September 23, 1999

Lamer reveals he was worried about impact of Charter
Chief justice was 'very concerned' about lack of debate
Marina Jimenez
National Post

Tom Hanson, The Canadian Press
Chief Justice Antonio Lamer shares a laugh with his fellow justices.

TORONTO - The Supreme Court of Canada is not a bastion of judicial activism, but is rather simply fulfilling its sworn duty to uphold democracy, according to Chief Justice Antonio Lamer.

The country's most senior judge defended the judiciary yesterday, saying judges are no more activist now than they were in 1982, when the Charter of Rights and Freedoms was proclaimed, giving judges new power to overturn laws that conflicted with it.

However, Judge Lamer admitted that in 1982 he had reservations about the impact of the Charter on unelected officials, and became "very concerned" about the lack of public and academic debate about the Charter, which gave judges the power to safeguard individual rights.

"Nobody really had a thorough debate about the effect the Charter would have on the whole balance between the elected and the non-elected," said Judge Lamer, who spoke to the National Post yesterday at a tribute to the late chief justice Brian Dickson at Toronto's Osgoode Hall Law School. "The elected of the day chose to do that ... I'm not going to express an opinion as to whether they should have done that."

The new judicial era should come as no surprise to the public; it's just that it has taken several years to feel the impact of the legal revolution, he said.

Judge Lamer, a 66-year-old Montreal native, will retire in January after 10 years as chief justice.

"I don't acknowledge that there is really judicial activism," he said. "There is a difference between judicial activism and reconciling democracy with individual rights."

The first court rulings that invoked the Charter were criminal cases, and did not have a widespread impact on the public. But in 1985, equality provisions came into force. By 1990, when Judge Lamer was appointed chief justice, the court began wading into equality rights and social issues.

Judge Lamer's court has used the Charter to strike down abortion laws and Quebec's French-only sign law. And Judge Lamer has overseen rulings on Sunday shopping, homosexual rights, euthanasia, aboriginal rights and Quebec secession.

"When you start getting into things ... that divide society profoundly, the attention of the general public was alerted to what happened in 1982," he said. "People started saying, 'hey, why are judges having power to do this?' "

Peter McCormick, a professor of political science at the University of Lethbridge, said it is disingenuous to deny there is judicial activism. In his opinion, the court is not striking the right balance between a democratic majority and the government on the one hand, and a rights-enforcing judiciary on the other. The government can use the notwithstanding clause to overrule a Supreme Court ruling, but rarely does.

"At the moment, we have a lopsided system. The Supreme Court is a player, as well as the referee," he said. "The court is always right, even if a lot of people don't agree. It is not judicially deferential."

Prof. McCormick notes that the court of the late Judge Dickson, Judge Lamer's predecessor, was more restrained. Judge Dickson never rewrote legislation, while the current court has. For example, in 1997 in the case of Delwin Vriend, the court ordered the Alberta government to include protection for homosexuals in its human rights code.

Judge Lamer, who has written 345 judgments, is known as a Charter enthusiast. He has often used Charter rights to uphold and extend the rights of the accused.

Judge Lamer says he enjoys public debate about judicial activism and welcomes criticism, as long as it does not devolve into a personal attack.

"People can criticize judgments, but there must be some degree of respect for the individual judges," he said. "Judges are human beings and are entitled to their dignity."

He refused to cite examples of inappropriate criticism, saying: "You know better than I."

Earlier this year, Alberta Justice John McClung provoked a legal furor when he verbally criticized Supreme Court Justice Claire L'Heureux-Dube, after she overturned his judgment in a sexual assault case.

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