The Legacy of the Right Honourable Antonio Lamer: A Model of Judicial Independence

Former Chief Justice Antonio Lamer arrived at the Supreme Court of Canada in 1980 following a distinguished career as a criminal lawyer, law professor and chairman of the Law Reform Commission of Canada. Each of these experiences undoubtedly played a role in shaping his approach and outlook as a judge. It was as a Supreme Court of Canada justice, however, especially as Chief Justice, that Lamer would make his most indelible mark.

Justice Lamer arrived at the Supreme Court of Canada on the eve of the Charter‘s entrenchment. He quickly stood out amongst his colleagues as a judge with a perspective on the Charter that was as clear as it was ambitious. It took Justice Lamer very little time at all to offer what remains to this day the strongest defence of the Charter and the role of the judiciary under it ever offered by a Canadian jurist. Very much aware of the fact that the Charter was viewed with much skepticism in many quarters, including by many conservative judges, Justice Lamer was unapologetic in explaining how and why everything had changed. In Re BC Motor Vehicle Act, [1985] 2 SCR 486 [Re BC Motor Vehicle Act] a case that may very well rank as the most important of Lamer’s judicial career, he explained that:

The Attorney General for Ontario, in his written argument, stated that,

… the judiciary is neither representative of, nor responsive to the electorate on whose behalf, and under whose authority policies are selected and given effect in the laws of the land.

This is an argument which was heard countless times prior to the entrenchment of the Charter but which has in truth, for better or for worse, been settled by the very coming into force of the Constitution Act, 1982. It ought not to be forgotten that the historic decision to entrench the Charter in our Constitution was taken not by the courts but by the elected representatives of the people of Canada. It was those representatives who extended the scope of constitutional adjudication and entrusted the courts with this new and onerous responsibility. Adjudication under the Charter must be approached free of any lingering doubts as to its legitimacy.

For Justice Lamer this was not simply empty rhetoric. In Re BC Motor Vehicle Act he wrote the Court’s opinion. In that decision the Court held that despite testimony by some of the civil servants involved in drafting section 7, who maintained before the Special Joint Committee of the House of Commons and Senate (which was charged with refining early drafts of the Charter) that the “principles of fundamental justice” would be taken to mean little more than “natural justice,” there was no textual or principled reason why this very ambitious phrasing should be read so restrictively. In one fell swoop, Justice Lamer foreclosed the future importance of the “framer’s” intentions as a controlling consideration in the interpretation of the Charter‘s guarantees. What this ensures for future generations is that the meaning of the Charter‘s provisions will not be frozen in time based on how these terms might have been understood by those responsible for drafting the document in 1980 and 1981. Thereby (hopefully) avoiding in Canada what has come to represent one of the most regressive approaches to constitutional interpretation so far conceived of in the United States – originalism.

Finally, once he had pushed aside the significance of testimony by senior civil servants, Justice Lamer proceeded to pour substantive content into section 7 when he recognized that the principles of fundamental justice are offended when the state couples absolute liability offences with the specter of mandatory imprisonment. This, according to Justice Lamer, could lead to the incarceration of the “morally innocent” and thereby offend the principles of fundamental justice. To be sure, the decision to give section 7 substantive meaning was controversial at the time and remains so to this day. (My own view is that this was a serious mistake, and that the proper place to deal with disproportionate punishment, like sending those who lack mens rea to jail, was better left for s. 12, the prohibition on cruel and unusual punishment.) My point here is not to quibble with Justice Lamer’s decisions. Rather, it is to point out something very important about his approach to judging. He was a jurist who was truly committed to the idea that it was the role of judges to decide cases based on what they believed to be right. To act on principle and with conviction, even if that meant doing what was very unpopular.

Justice Lamer’s judgments were unlikely to earn him accolades from the person on the street. He routinely championed the rights of those suspected or accused of criminal wrongdoing, staking out positions that would likely be met with considerable skepticism by most Canadians. There are a great many examples of this:

• R v Vaillancourt, [1987] 2 SCR 636 and R v Martineau, [1990] 2 SCR 633 (holding that the felony murder provisions violated section 7 of the Charter, and requiring subjective foresight of death as a minimum mens rea requirement for murder);

• R v Collins, [1987] 1 SCR 265 (creating an analytical framework for both sections 8 and 24(2) of the Charter – in the case of the latter, developing criteria that led to the almost automatic exclusion of so-called “conscripted” (i.e. self-incriminatory) evidence obtained as a result of a Charter violation);

• R v Manninen, [1987] 1 SCR 1233, R v Brydges, [1990] 1 SCR 190, R v Bartle, [1994] 3 SCR 173 (recognizing robust protection for the right to counsel guaranteed by s. 10(b) of the Charter, including a duty to refrain from eliciting information from an individual who has asserted the right but who has not yet spoken to counsel, as well as imposing a duty on police to appraise those detained or arrested about the services available in the jurisdiction for the provision of free and immediate legal advice);

• R v Swain, [1991] 1 SCR 933 (holding that the Crown could not raise an accused’s alleged insanity over his objections unless and until it proved factual guilt & invalidating the section in the Criminal Code which led to the automatic detention in custody of those found not guilty by reason of insanity without regard to their actual circumstances);

For Justice Lamer the role of the judge was to do what was right, irrespective of whether or not it also happened to be popular. As he explained to Macleans during a 1998 interview:

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.

Beyond his judgments, the great legacy left by Antonio Lamer is the model of judicial independence that he provides for all judges.