Tribute to “The Chief”: A Clerk’s Memories of the Right Honourable Antonio Lamer

Since the death of former Chief Justice Lamer in November, there have been many thorough articles written about his legacy as a jurist, including James Stribopoulos’ piece for TheCourt.ca. I was very pleased to be asked to add to these tributes to “the Chief” (as I will always think of him), as one of his former clerks at the Supreme Court of Canada.

The relationship between a Supreme Court of Canada clerk and “his” or “her” judge is a very odd one. The clerk, fresh out of law school and with no or minimal court-room experience, is assigned the task of summarizing and analyzing the most difficult legal issues arising in the country and then “advising” a Justice of the Supreme Court of Canada on how the case should be decided. The gap in age, legal experience and legal knowledge between the clerk and the judge is wide; yet it is also a close, collaborative relationship, as we would meet both before and after hearings to discuss the appeals.

As one would expect from his background as a defence lawyer, criminal law was the Chief’s first love. He was most passionate – and brilliant – when we were debating whether an accused had a sufficiently “guilty mind” to meet the mens rea requirement, or trying to properly define limits on police powers to search.

Many of the recent descriptions of his career have noted the Chief’s dedication to preserving judicial independence. While they are accurate, his concern for judicial independence was only one part of a broader, pervading sense of obligation to protect the reputation of the administration of justice. It was evident from one of his very first judgments, R v Rothmans, [1981] 1 SCR 640  [Rothman], of which he was particularly proud. In Rothman, even before the Charter was passed, the Chief held that a confession is inadmissible if induced by police conduct that “shocks the community.” He was concerned not only with the rights of the accused but more fundamentally with the need to preserve respect for the justice system, respect that would be undermined if the police, the Crown and the courts failed to each discharge their respective duties with integrity.

That emphasis on respect for the Supreme Court of Canada had a quirky side too. The Chief pretended to believe that his clerks – unlike all the other clerks – wore suits in our grotto of cubicles. In fact, his assistant warned us when he was about to call us down to his office, and we had partitions set up to change quickly from our T-shirts and shorts into our suits. One former clerk, who wore the same “meeting with the Chief” clothes all year, reported that at the end of his clerkship, the Chief congratulated him on his new associate position with a law firm – but told him he might want to buy a new suit.

The Chief knew that our intermittent suit-wearing was a charade, but he forced us to acknowledge, even by the small measure of dressing professionally, that we were not just law students anymore. We were part of a Court that demanded, and deserved, decorum and respect.

It was only one of many important lessons that the Chief taught me about practising law and about advocacy. He taught me (or at least tried to teach me) to be concise. Every Chief clerk was told, at least once: “We’re not writing literature here.” He taught me to pick my battles in litigation saying, for example, of a senior criminal counsel making a brief procedural motion: “a less experienced lawyer would have wasted an hour without being any more effective.”

Perhaps most importantly, he taught me that, for a litigator, nothing is more valuable than your reputation with the court and that this reputation is based not only on your advocacy skills, but also on whether you treat the court, and other members of the bar, with respect. I remember praising the submissions of one senior litigator after an appeal, and the Chief immediately responding, rather dismissively, that the lawyer had been good on that occasion, but was often condescending to opposing counsel “and there is no need for that.”

I had the privilege of clerking for the Chief the year that the Supreme Court of Canada heard the Reference re Secession of Quebec, [1998] 2 SCR 217 [Reference], a case that he identified as one of his proudest achievements. It was a situation fraught with risks for Chief Justice Lamer and his colleagues. Not only were some of the legal issues complex, but also, in many ways, the reputation of the Supreme Court was at stake. It could have been Canada’s Bush v Gore. While the Supreme Court of Canada’s response to the Reference was a response of the Supreme Court of Canada as a whole, it was quintessentially Lamerian – assertive as to the role of the courts as interpreters of the law and guardians of the Constitution but also careful not to overstep that role; cognizant that not only is the law not literature, it is not even really text – it is more basic values and rules of authority, order and respect.

On my last day as a clerk, the Chief told me that he would miss me. I have thought of that often in the last month, and of how much I, and we as a profession and as Canadians, will miss him.