This article was originally published in Maclean's Magazine on February 16, 1998
It is a cheerless, grey winter morning in the nation's capital, and in the cathedral of Canadian law, the head priest is taking the day off to reflect on his life and times. In a rumpled navy blue suit, white shirt and limp red tie, Antonio Lamer, chief justice of the Supreme Court of Canada and a self-described "French-Canadian from head to foot," is mildly lamenting the fact that his parents named him after his father instead of calling him Antoine. "I might have had more trouble in the schoolyard because people associated that name with coiffures and being somewhat effeminate," Lamer reasons, "but I would prefer it today." Experience has reinforced that preference. When he was appointed to the Quebec Superior Court in 1969, TV reporters asked then-Justice Minister John Turner about judicial opportunities for ethnic groups. "Turner replied that he had just appointed somebody from the Italian community - Tony Lamer. I phoned John and asked him what the heck that was all about and he said, 'Well, I had to say something.' "
The 64-year-old Lamer, whose 29 years on the bench make him the longest sitting federal judge in the country, tells the story during a 90-minute interview in his panelled chambers overlooking the ice-rimmed Ottawa River. It is the eve of the long-awaited and momentous hearings on File No. 25506 - the federal government's request that the court determine whether Quebec can, legally, unilaterally declare independence from the rest of the country. While Lamer seems willing to discuss just about anything, he will, understandably, say little about that. But when asked if the case causes him special anguish because of his roots, he replies: "I think it causes a lot of anguish to most people. If you're a separatist, the anguish is, 'Are we finally going to be able to separate?' I think Canadian nationalists - I prefer that to 'federalists' - share this anguish. I, as a judge, can't say much more other than to say that I, too, am concerned."
It is a worry shared by all nine Supreme Court justices - two women, seven men; four francophones, five anglophones; three each from Ontario and Quebec, two from the West, one from the Atlantic provinces. But their personal concerns have long been overshadowed by the need to prepare. By the time the judges take their places next week in the courtroom's nine high-backed chairs beneath an elaborately carved coat-of-arms, they will have read volumes about international and constitutional law. "The last time I looked, it was a pile about two feet high," says a court source. After they have heard all the arguments, which will likely take a week, Lamer and his colleagues will retire to an adjacent conference room lined with rare law books in English, French and Latin.
And there, around a circular desk with a view of the river and disputatious Quebec beyond, they will begin the search for consensus on one of the weightiest questions the court has faced in its 123-year history. They will speak in the reverse order of seniority, starting with Justice Ian Binnie, sworn in on Feb. 2, and ending with Lamer who, after the discussion that follows, will choose a judge to write the majority opinion and another to write the dissent - if there is one. Lamer has earned his position in the pecking order; he has been on the court since 1980, longer than anyone else, and chief justice for nearly eight years - presiding over a court that has used the 1982 Charter of Rights and Freedoms to change Canadian society.
Based on that experience, where does he rank this case among other important ones in recent years? Replies Lamer: "You're talking in terms of a reference that has to do with the possible dismantling of at least part of the country." Then he adds: "But some of our first decisions under the charter, if you're looking at the equilibrium between the judicial and the elected, were also very important."
That charter, cornerstone of the 1982 constitutional accord, codified basic individual rights and freedoms in Canada's constitutional law for the first time. Conservative judges deplored the potential erosion of Parliament's powers, but more liberal ones of Lamer's generation and younger relished the opportunity to enhance individual rights and, as one of them said at the time in an off-the-record interview, "to raise a little hell." As the outspoken chairman of the now-defunct federal law reform commission between 1976 and 1978 (he previously spent five years as vice-chairman), Lamer had already shown that he leaned towards the latter camp. And although his appointment to the Quebec Court of Appeal in 1978 silenced him, his egalitarianism there and later on the Supreme Court raised the hackles of more traditional jurists. One fumed privately that Lamer had a "social-worker mentality." Another said his judgments "are all over the map."
Yet those Supreme Court judgments, backed by a majority, have reshaped the law of the land time and again. In 1987, the court tossed out a section of the Criminal Code that said a person is guilty of murder if he has a weapon while committing a crime and someone is killed. The case involved a robber who believed his gun was unloaded, and Lamer wrote that a person could not be convicted of murder if there was no proof beyond a reasonable doubt that he knew his actions were likely to cause death. It is not necessary, he added, to convict offenders of murder in order to discourage the use of guns. "If Parliament wishes to deter the use or carrying of weapons, it should punish the use or carrying of weapons," he said.
In 1990, the court reversed a decision of the Manitoba Court of Appeal and reinstated the acquittal of a man who thought his right to counsel depended on his ability to pay a lawyer - and had not been advised otherwise by police. Law enforcement agencies must in all cases, Lamer wrote, tell people under arrest that legal aid is available and free. In a 1991 case, the court struck down a section of the Criminal Code providing for the indefinite detention of people acquitted of crime by reason of insanity. Writing for the majority, Lamer said such people "should be detained no longer than necessary to determine whether they are currently dangerous due to their insanity."
Supreme Court judges gradually become identified by the legal community as favoring either the individual or the state. On the current court, Chief Justice Antonio Lamer and Justices Peter Cory, John Major and Frank Iacobucci are most likely to come down on the side of individual and equality rights. Justices Charles Gonthier, Claire L'Heureux-Dubé and Beverley McLachlin are more inclined to rule for the state, at least in criminal cases. Two recently appointed justices, Michel Bastarache and Ian Binnie, are unknown quantities.
But in most respects, the Quebec reference case is unique. Even the many Supreme Court judgments dealing with the division of powers between the provinces and the federal government shed little light on the issue of secession, constitutional experts say. "This is of a different order," notes Bryan Schwartz, professor of law at the University of Manitoba. "This is not asking who gets jurisdiction over fisheries. It is asking a more radical question. And you can't safely predict from attitudes about a stronger or weaker provincial government how they will react to a question about a part of the country wanting to quit altogether."
Patrick Monahan, a professor at Osgoode Hall Law School in Toronto, says the case that most compares to the current one was in 1981 after Ottawa, facing provincial opposition to its repatriation plan, referred the question to the Supreme Court. Seven of the justices, including Lamer, ruled that Ottawa could unilaterally patriate the Constitution. But a majority - again including Lamer - also concluded there was a convention in constitutional law that demanded provincial consent. That helped push Ottawa back to the negotiating table (only Quebec was not part of the eventual agreement). "The court was called upon to play the role of statesman," says Monahan, who represents one of the intervenors in the current case, Guy Bertrand. "I think this case is essentially about the same thing: it's not really about the federal government versus Quebec - it's about whether the Constitution is above both levels of government."
Joseph Antonio Charles Lamer's journey to the threshold of next week's historic drama began as an only child in a tough working-class district of east-end Montreal. (He once told a reporter: "Everybody but two of us went to the penitentiary; I became a lawyer and the other guy is a dentist.") The family lived near the Rachel Street slaughterhouse, and, Lamer recalls, "every night around 5 o'clock, we got a whiff of what had gone on during the day, which is probably why I love blood pudding."
His father was a lawyer and the family subsisted on the meagre fees he earned representing mostly neighbors, many of them victims of workplace accidents in Canadian Pacific Railway's repair yards - known as the Angus shops. "In those days, if you were a French-Canadian, you didn't get to be a lawyer for the Royal Bank of Canada," Lamer says. "Those preserves were kept for the Anglo community. I'm not saying this with any bitterness - that's the way it was."
When the Quebec government introduced a workers' compensation board where applicants did not need lawyers, Lamer senior's personal-injury business evaporated overnight. But the city hired him as a police attorney to advise the department on legal procedure. "When the Crash came in '29, he was making $100 a week, which was lots and lots of money - lawyers were happy if they were driving streetcars," Lamer says. "The problem was that he stayed at $100 a week for about 20 years." His father switched to private practice for several years until his death in 1960.
In 1956, Lamer got his law degree from the University of Montreal and was called to the bar a year later. He joined a law firm and also thrived as a lecturer at the university's school of criminology. In 1969, when Lamer was only 39, Turner made him a trial judge of the Quebec Superior Court. But only two years later, he took a leave of absence to join the law reform commission. On March 2, 1976, a month before he became commission chairman, Lamer gave perhaps the most revealing interview of his career while attending the Commonwealth Caribbean-Canadian Law Conference in Jamaica.
He made headlines with his observation that tough Criminal Code amendments being proposed at the time would diminish personal liberty among Canadians, who were either too apathetic or ignorant of the consequences. With the charter six years in the future, Lamer said: "I worry that we don't have any kind of master plan behind our legislation. You have to decide whether we are prepared to live with some crime or want none at all, because if we want a society free of crime, that's easy. In Montreal, during the FLQ crisis in 1970, we had the army in the streets and the lowest crime rate. But at what cost?"
Asked whether his comments then mirror his current philosophy, Lamer fidgets impatiently in his armchair and, while admitting to being an idealist, replies: "It was the job of a law reformer to be critical of what the legislators were doing. I cannot be critical of the law today whether I agree with it or not. I was not a sitting judge in those days. I used to say I was a judge without any judgment." Does it bother him that he cannot speak his mind? "No, no, I have gotten used to that. I'm not sure that younger judges are not having a hard time reining themselves in."
At the same time, silence has its compensations, Lamer says. "Let's not forget there are no jobs in the world that enjoy our tenure of office. You can't fire a judge. He can't be terminated except by both houses of Parliament. The sole justification for that is to make it possible for him to do the unpopular thing, without fear of losing his job, when it's the right thing to do. You don't usually need judges to do the popular thing - politicians do it for them." The role of chief justice imposes further responsibility, he says. "There is a change in your relationship with your colleagues. Sometimes I have to say no, don't associate your name with this type of organization. You don't need a chief justice to say yes."
Lamer's abiding interest remains the evolution of the law and the judicial process. "Fifty years ago, judges came down with decisions and didn't get into the reasons why," Lamer says. "They just said here's the law and you don't have to understand it, you just have to abide by it. Today, anybody wielding any authority is much more accountable and this is a healthy thing. Awe in the face of power has disappeared." Along the way, he thinks, the charter "has done a tremendous amount of good in the fields of freedom of expression and equality." Yet the justice system is still too costly. "There are people who are not eligible for legal aid because they earn too much and they would come out financially crippled if they went to court. It's not the law that's wrong, it's the cost of access to its remedies."
In 1987, the divorced Lamer married Danièle Tremblay, then 41 and legal counsel to the National Energy Board. She followed him to the bench, becoming a judge of the Federal Court of Canada trial division in 1993. They have three children from previous marriages - Lamer's son Stéphane, 32, a UN field worker who has been in Africa for nine years ("he's been there so long he has an African accent," says Lamer); Tremblay's daughter Mélanie, 27, who teaches English in Monterrey, Mexico, while her husband finishes his law degree; and her son Jean-Frédéric, 24, a stockbroker.
It is only with reluctance that he will talk about his private life and thoughts. When pressed to speak of human values, he says: "I guess the most important one I see is compassion, which is an antidote to intolerance. Unfortunately, intolerance has come to us more often than not from religious groups." Is he religious? "Well, if you mean by religious do I belong to a church, I do but not by choice; I was told one day as a child that I belonged to that church. I just don't think I need any help in believing in God."
For the past nine years, Lamer (who dislikes heat) and his wife (who enjoys it) have vacationed at Nuevo Puerto Vallarta in Mexico. "So I put on No. 15 sunscreen and my big hat and read on the beach and come home with no suntan," Lamer says. He has lost 20 lb. riding an exercise bike at home; on weekends, he and Danièle go for two-hour walks. "Some people think I am sick or something," he chuckles. "I have bad news for them. Others think that as soon as I turn 65 on July 8, I'm going to retire. I have very bad news for them." Then he adds: "But let's be realistic. As you get on, like an old hockey player, you don't go into the corners any more and you don't stand in front of the net." But starting next week, the years notwithstanding, Tony Lamer will go into the corners at least one more time.
Maclean's February 16, 1998