Saturday, August 28, 1999

Lamer reflects on career

Legal revolution sparked by Charter not over, retiring chief justice says

By Edison Stewart
Toronto Star Ottawa Bureau

OTTAWA - The legal revolution triggered by the Charter of Rights is nowhere near over, Canada's chief justice says.

``I think the equality section still has a lot of material in there that hasn't been (adjudicated). There are situations in Canada that will be visited, examined, scrutinized, under section 15, the equality provision,'' Antonio Lamer predicted in an interview yesterday.

The section states: ``Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination . . . based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.''

Lamer would not speculate on what issues lie ahead for the Supreme Court of Canada, which must already deal with such controversial questions as abortion, euthanasia and mandatory retirement.

`You had to make up your mind what kind of animal (the Charter) was going to be . . . was it going to be what it was, in my view, and the view of the majority of the court at time, a constitutional document?'

- Antonio Lamer Supreme Court of Canada chief justice

``Lawyers have so much imagination,'' said Lamer, 66, who steps down Jan. 7 after more than 30 years as a judge, 20 of them on the Supreme Court, and almost 10 as its chief.

On other points:

• He said he has asked Prime Minister Jean Chrétien ``to see to my replacement . . . as soon as possible.'' A number of logistical decisions affecting the court next year need attention now, and Lamer said he would prefer to consult his successor.

• He said Canadians don't appreciate the judicial system as much as they should. ``Most of the world looks up to the Canadian judicial system. I wish Canadians would look up to it too the way the world looks up to it.''

• He hinted he agrees with his predecessor, the late Brian Dickson, that regardless of whether Quebec is recognized as a distinct society in the Constitution or not, the high court already considers the province's distinctiveness when rendering decisions.

Appointed to Canada's highest court in 1980, Lamer said he had misgivings at the time about the transformation that would be wrought by the Charter, which in 1982 shifted power away from legislators and placed it in the hands of unelected judges.

``I said to (a colleague at the time), `I am really concerned that people don't realize what is occurring. Now, if it is a conscious thing, it's okay. I welcome the Charter.' '' But most people were focused on other aspects of constitutional debate, he said.

Even in the early years of the Charter, few paid attention because court rulings which invoked it dealt largely with criminal law, he said, which most people disregard unless it touches them personally.

``People, they don't mind if their neighbour's house is searched without a warrant. They just mind if you're searching their house without a warrant.''

But people ``awakened to the Charter'' once the equality provisions, which only came into force in 1985, began influencing judicial decisions, he said. ``We're now hitting home much more often than we used to.''

Looking back on two decades on Canada's highest court, Lamer said the 1980 decision on the Constitution's patriation from Britain and last year's Quebec secession ruling are likely the most important. ``They go to the very fundamentals of the existence of our country.''

But also critical was a mid-1980s decision to strike down a B.C. law which made it an offence, punishable with mandatory period of imprisonment, to drive a motor vehicle without a licence or while under suspension - even if the driver is unaware of the prohibition or suspension.

In a decision written by Lamer, the court said this violated the Charter's guarantee that everyone has the right not to be deprived of their life, liberty and security of the person.

The decision made it clear the Charter was no mere piece of paper.

``You had to make up your mind what kind of animal this was going to be,'' Lamer recalled. ``Was it going to be something along the lines of the (relatively toothless) Canadian Bill of Rights, or was it going to be what it was, in my view, and the view of the majority of the court at time, a constitutional document?''

Lamer declined to get involved in the current debate, led by the Reform party, over so-called ``judge-made law.''

But he noted legislators can still override the court if they want to by using the Charter's so-called notwithstanding clause, which ensures ``that the elected have the last word, when they want to have it.''

Lamer is not retiring altogether. He'll continue to work at something, but not law. After more than 40 years in the profession, he said he's leaving nine years before mandatory retirement because law is gradually becoming a job instead of a passion.

``I don't want to take the chance that some take, and then leave a little too late. I think Canadians . . . are entitled to get the best quality of service.''

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