Lamer, Antonio

ENCAENIA, MAY, 1995
THE RIGHT HONORABLE ANTHONIO LAMER, CHIEF JUSTICE OF CANADA
to be Doctor of Laws

For better or worse, the role of a justice of the Supreme Court of Canada is one that few Canadians comprehend. There are only nine of them one of whom is Chief Justice, and there is no job description on the boards at Employment Canada. Chief Justice Lamer himself has acknowledged the isolation that goes with the job, something like being an old monk in a monastery.

But we do well to remember that Supreme Court justices are also human beings, with families and interests that are not unlike those of the average Canadian. Chief Justice Lamer surrounds himself with family pictures in his office, he enjoys boating on the Ottawa River and walking for hours in the Gatineau Hills. While he has served on the Supreme Court for fifteen years; he has never been far from his roots in Montreal, where he was born and educated, and where he began his love affair with the law, as student, criminologist, practicing attorney, law teacher, and judge. For five important years, he served as vice-chairman and then chairman of the Law Reform Commission of Canada, until he was elevated to the Quebec Court of Appeal and then, in 1980, to Canada's highest court.

Chief Justice Lamer has said that the public can only know the Supreme Court through its decisions, and these the public may judge for itself: the market, so to speak, determines their value. He has also humorously suggested that he leaves to academics the problem of discerning the direction of the Court, if indeed there is one. For his benefit, I should like to explain that I asked several members of UNB's Faculty of Law to characterize the Lamer Court and to describe its direction. Every one of them declined to do so, and all commented that it was much too early to ask questions of that sort; history would eventually decide.

But at the risk of treading where angels fear to go, one can at least make certain observations. First, surely, is that the Court is a mirror of Canadian society. The problems that it wrestles with are our problems, the problems of a society undergoing sweeping and constant social and cultural change and adaptation to life's challenges in the late twentieth century. The Court confronts questions for which there are no easy answers — is a fetus a person? is mandatory retirement fair? where do you draw the line between the rights of an accused and the rights of a victim? — and if the Court sometimes seems to have no single answer, and expresses dissenting views, surely it is because the mirror is doing its job: it is reflecting a Canada that has not yet made up its mind on many things. Chief Justice Lamer feels comfortable with that kind of Court: he sees dissent as healthy, and asks no more than that the Court visit each issue within the social context of the people it serves, the people of Canada.

The second and quite obvious point is that the Chief Justice's tenure in the Supreme Court has coincided with the introduction and integration into the law of the Canadian Charter of Rights and Freedoms. His appointment predates the Charter by two years. In no small measure, Antonio Lamer, as Justice and as Chief Justice, has served Canada by translating lofty Charter principles into workable reality, meshing entrenched rights with traditional precepts of the law.

It is dangerous, perhaps, to try to separate out the contribution of any individual member of the Court. Decisions, by their very nature, reflect the views of several, sometimes all, justices. And, as the Chief Justice himself has observed, every case is different, and requires the application of law and the interpretation of the Charter in its own context. But despite such qualifications, it is possible to find recurring themes in decisions of the Court which seem to reflect rather profoundly the views of the individual who wrote them. In Chief Justice Lamer's case, surely one of those defining ideas can be found in his several statements on the meaning of the term "fundamental justice," as found in section 7 of the Charter. It is a term, as he views it, that has transformed the meaning and purpose of the legal system in this country. For it enjoins the courts not only to follow fair and just procedures, as had always been expected under the rules of "natural justice," but also to determine whether the laws themselves are fundamentally fair and just, or, to the contrary, whether they infringe upon the rights and freedoms guaranteed by the Charter. "The principles of fundamental justice," he wrote in his landmark decision in Re B.C. Motor Vehicle Act (1985), "are to be found in the basic tenets of our legal system. They do not lie in the realm of public policy but in the inherent domain of the judiciary as guardian of the justice system."

It is statements such as this that have profoundly redefined the nature and role of Canada's Supreme Court in our time, as momentously as U.S. Chief Justice Marshall's decision in Marbury vs. Madison almost 200 years ago. No longer is the law simply a process dedicated to the proposition of a fair trial, a process based on the precepts of natural justice; it has now become a process to ensure that the laws themselves are fundamentally just.

Chief Justice Lamer would not wish us to exaggerate his role as distinct from that of the other justices of the Court. Yet it is obvious that the collegial atmosphere that prevails in the Court, the efficiency with which it embraces its workload, and the quality of the decisions of the past several years, all speak well of the man at the top. And if in the end, the Court simply reflects Canada as it is, telling us where we are in sorting out the nettlesome moral issues of our time, we can be grateful that we have persons like Antonio Lamer to help us do so.

From: Honoris Causa - UA Case 70, Box 3