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Thursday, April 06, 2000

In awe of judges, clerks play a role too
Young lawyers hoped their name would be subject of judges' dining banter
Alan Young
National Post

Chief Justice Bora Laskin talks with his clerks Alan Young and Sheridan Scott. Laskin enjoyed pleasant storytelling and relaxed banter.

It was always too hot in the attic where 10 of us worked away late into the night, handwriting memoranda of law, hoping that the judge to whom we were assigned would incorporate some little tidbit into a written decision. As young law students chosen to clerk at the Supreme Court of Canada, we were in awe. Despite the critical perspective presented by most law professors, law students still tend to deify judges. Things eventually change in practice.

Sheridan Scott and I had just graduated from law school, and were fortunate enough to clerk for Bora Laskin, the late chief justice, in the years 1981-82. Judge Laskin was known to have a demanding and powerful intellect, yet when I met him for the first time, he interviewed me for no more than five minutes and then advised me I had the job because he had only needed to check if I was "obnoxious." (I think I fooled him).

I quickly learned that the chief justice, in his personal relations, did not exhibit any of the arrogant or sanctimonious characteristics one might expect of a boy from Thunder Bay, Ont., who grew up to become the chief justice of Canada. In court he was a terror for lawyers, but as soon as he left the courtroom, he was a polite and gentle man.

My first assignment in the job was to evaluate arguments being advanced in a case involving seal fishing in Newfoundland. Wanting to impress the chief justice of Canada, I worked three days straight and completed a frighteningly complex memorandum. At our first official meeting on the morning of this seal fishing appeal, the chief justice said nothing about the case or my memo. He told Sheridan and I a story of hitting the longest home run in Thunder Bay softball history and spoke of his indispensable role in advancing the rigours of legal education in his past incarnation as a law professor. At the end of 40 minutes of pleasant storytelling and relaxed banter, he thanked me for the memo and told me it was "very long." So much for influencing the course of legal history.

Between researching cases, ranging from the legal status of magic mushrooms to the standard of proof in sentencing hearings, we took part in what would be the last annual visit of Canadian law clerks to the U.S. Supreme Court in Washington. (The American clerks consistently declined the invitation to visit the judicial backwater of Ottawa.) We discovered that unlike Canadian clerks who worked long hours in an attic with no typewriters, no computers and no secretarial assistance, our American counterparts not only enjoyed every kind of technical support, but their court's attic featured a basketball court where the clerks were said to take on the judges.

In contrast, the only significant material improvement at the Canadian Supreme Court in 1981 was the creation of a judges' dining room where the judges could comfortably debate and discuss the cases heard during the day. As law clerks, we were not allowed to dine with the judges but every clerk hoped that their name and their memoranda would be the subject of dining room discussion. More than likely the judges were only discussing the beef Wellington.

Even though a law clerk plays a significant role in the administration of justice and, on occasion, may even draft a preliminary ruling, I am astonished when law clerks claim exclusive responsibility for a particular decision.

Law clerks merely help judges in what is a solitary -- and often lonely task.

Six months into our clerkship, Chief Justice Laskin suffered a stroke. His health had been declining for years. It was as if he knew his end was near and he rarely wished to talk to us about the cases. He quickly knew what he intended to do and he did not need our input. Instead, he preferred to reminisce and to provide fatherly encouragement.

During our time at the court, the Charter of Rights and Freedoms was proclaimed into force, and court observers were eager to see how the chief justice, with his reputation as a fierce defender of civil liberties, would operate in a world inhabited by constitutional rights.

Tragically, the chief justice passed away before he could leave his mark on the development of Canadian constitutional rights.

Despite his untimely demise, however, it's apparent that the spirit of his decision-making still animates and influences the course of legal history.

Alan Young is a professor at Osgoode Hall law school in Toronto.

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