Ottawa Citizen

Sunday August 22, 1999

Lamer ends activist career

He'll be recalled for increasing individual rights

Colin Grey
The Ottawa Citizen; Citizen news services

Dave Chan, The Ottawa Citizen / Supreme Court of Canada Chief Justice Antonio Lamer

The Ottawa Citizen / The full court; back row, left to right: Frank Iacobucci, Jack Major, Michel Bastarache and Ian Binnie; front row from left, Peter Cory, Claire L'Heureux-Dube, Justice Lamer, Charles Gonthier and Beverley McLachlin.

Dave Chan , the Ottawa Citizen / Daniele Tremblay-Lamer, a Federal Court judge, with her husband, Justice Lamer.

Ed Kaiser, Edmonton Journal / Justice Lamer laughs it up with the media during a news conference called after his announcement yesterday.

Over two decades, Chief Justice Antonio Lamer steered the Supreme Court toward several landmark decisions that protected individual rights, seizing upon the Charter of Rights as a tool to forge an activist role for the country's highest court.

The activist chief justice, Canada's longest serving judge, announced his retirement yesterday, saying that he had lost the "feu sacre" (sacred fire) needed to perform his job. The giant of Canadian law wrote 345 decisions and heard 1,317 cases while sitting on the country's highest court.

"What was a very demanding but nevertheless fascinating period of my professional life is gradually becoming a job," Justice Lamer said yesterday. He will leave his post on January 7.

The chief justice grew up in a rough neighbourhood in Montreal's East End in the 1930s and '40s. He began his career as a defence lawyer in 1957 before being appointed to the Superior Court of Quebec in 1969, and then the Quebec Court of Appeal in 1978.

Then-prime minister Pierre Trudeau appointed him to the top court in 1980, two years before introduction of the Charter of Rights.

Since then, Justice Lamer and the charter have left indelible marks on one another as he helped determine how the court would wield the charter. Under Justice Lamer, the court has rarely hesitated to use the power granted by the charter to strike down laws passed by Parliament or provincial legislatures.

Under him, the Supreme Court has decided whether we can go shopping on Sundays, it has upheld the right to an abortion, and it has ruled that the police cannot enter a person's home without a warrant.

Justice Lamer's tenure was also bookended by decisions that left a lasting imprint on the country. In 1981, he helped draft the Patriation Reference, the ruling that allowed the federal government to patriate a constitution without Quebec's consent.

And in 1988 , the court unanimously ruled Quebec could not unilaterally secede from Canada, although a majority vote in favour of secession should set separation talks in motion.

Federalists and separatists alike lauded the decision, and legal experts yesterday called it a turning point in the debate over Canadian unity.

"It really pointed out how much more beneficial it would be for Canadians of all walks of life to engage in a dialogue, rather than have any court at any time impose some kind of a result on the country," said Canadian Bar Association President Barry Gorlick. "I think it was a watershed in the ongoing constitutional debate."

Justice Lamer, generally considered one of the most left-leaning justices to sit on the Supreme Court, has incrementally carved out greater individual rights for Canadians, Mr. Gorlick said.

The court ruled in favour of homosexual rights in 1998 when it decided Alberta had to include protection for homosexuals in its equal-rights legislation. One year later, the court ruled homosexual couples have the same property rights as heterosexual couples in a case that struck down Ontario's definition of a spouse as a member of the opposite sex.

The chief justice also displayed a deep interest in aboriginal rights, said Peter Hogg, dean of Osgoode Hall Law School in Toronto. In the contentious Delgamuukw case out of British Columbia, the court ruled that Indians held "aboriginal title" to any land they once occupied and never signed away.

But although Justice Lamer was extolled yesterday as a great defender of individual rights, he was also criticized for his outspoken manner.

He frequently defended an activist role for the court. He suggested judges ought to be allowed to talk about their decisions, opposed suspensions for sitting judges, and has publicly opposed American-style confirmation hearings for Supreme Court justices.

"The thing that strikes me about the chief justice's career is his tenacious defence of the court's role in public," said Robert Hawkins, an associate professor of law at the University of Western Ontario in London. "I thought that very often he sounded like a politician rather than a judge."

Mr. Hawkins condemned the Lamer court's activism. But Justice Lamer said he has long since gotten used to such criticism. "It goes with the turf. As they say, if you can't stand the heat, get out of the kitchen. I'm not getting out of the kitchen, I'm just going to another kitchen."

Copyright 1999 Ottawa Citizen