No lament for Lamer: Chief Justice was a vague usurper

Rob Martin

August 31, 1999- The Ottawa Citizen A13

As retiring Supreme Court of Canada Chief Justice Antonio Lamer prepares to hang up his ermine and scarlet gown and put away his three-cornered hat for the last time, he leaves behind an institution much-beloved in the academy and the Toronto media, but one which is dangerously out of control.

Lamer cannot be held entirely responsible for this situation since he has had a lot of help form his friends-the other eight judges on the court. Lamer made his contribution to this sad state of affairs through a strong predilection for vagueness and obscurity and a certain hostility towards democracy. Lamer often pulled new legal principles out of the air and sometimes gave the impression of making it up as he went along.

Lamer's first major Supreme Court decision was in a 1985 case called Reference re s.94(2) of the B.C. Motor Vehicle Act. This provision said that if you were driving a car in B.C., no matter how innocently, without a valid driver's license, you would go to jail for a week. The argument was that such a law deprived persons of the liberty of the person in a manner not in accordance with "principles of fundamental justice" as guaranteed in section 7 of the Canadian Charter of Rights and Freedoms. Now nobody had known what these words meant. Lamer refused to tell. He said the principles of fundamental justice resided in the "basic tenets of the legal system," but he refused to give a more clear or precise definition. He seemed to be saying "principles of fundamental justice" means whatever I say they mean and that's that.

His next attempt to break new ground came in 1992 in a case called Schachter v. Attorney General of Canada. At this time, what was called the Unemployment Insurance Act guaranteed certain periods of paid parental leave. The period of parental leave given to adoptive parents was longer than that given to natural parents. Schachter claimed the differential was a denial of the equality before the law guaranteed in section 15 of the Charter. We can leave aside, as the Court did, the fact that s.15 of the Charter does not actually guarantee equality between natural and adoptive parents. Schachter, as a natural parent, attached the longer period of leave available to adoptive parents.

Now, traditionally, if a court had held the longer period of leave for adoptive parents to be a denial of Charter rights, it would have declared the distinction to be invalid and struck it down, with the result that no parent would have received paid leave. Schachter argued that the longer leave period for adoptive parents violated his equality rights, but he didn't want it struck down as this would have been a hollow victory indeed. Schachter persuaded Lamer to rewrite the Unemployment Insurance Act. For this purpose Lamer invented a new judicial technique called "reading in." "Reading in allowed judges to amend statutes to make them conform to the Charter. Thus, the power to amend laws was effectively transferred from elected members of Parliament to un-elected judges.

Lamer redrafted the Unemployment Insurance Act. In recent years the Supreme Court has expanded "reading in" to overrule conscious policy choices made by legislators. In 1990, the Ontario legislature decide not to recognize same sex marriage. A year ago the Supreme Court read in to the Ontario Family Law Act recognition for same sex marriages. In Alberta the legislature consciously omitted to protect homosexuals against discrimination in the Human Rights legislation. In Vriend the court read "sexual preference" into the Alberta legislation, telling the province how to make laws.

"Reading in", which had never been heard of in a Canadian court before Antonio Lamer invented it in 1992, is a profoundly antidemocratic technique. Canadians had always assumed that the essence of our democracy was that the elected, accountable representatives of the people made the laws, while the un-elected, unaccountable judges simply interpreted the laws. Lamer has publicly expressed his hostility towards democracy. Giving a speech at the University of Toronto in 1992, Lamer said democracy was deficient because it did not adequately promote something he called "human flourishing" . He suggested a benevolent absolute monarchy might be preferable to democracy. Who might he have had in mind as the benevolent absolute monarch?

In 1997, Lamer discover what he called the "unwritten constitution."

Based on this uncertain and known only to him "unwritten constitution," Lamer demanded that each province set up an independent commission to determine judicial salaries. Mr. Justice Gerard LaForest of the Supreme Court said of this judgement that it was "subversive" of our democratic system of constitutional government.

In 1998, Lamer let his "unwritten constitution" run away with him. In dealing with the question of Quebec secession, Lamer conceded the constitution was silent on the matter and then, basing himself on the "unwritten constitution," he laid down detailed rules and procedures under which a province might secede from Confederation.

Canadians who respect our system of constitutional government and our democracy will feel a sense of relief at Lamer's departure.

Rob Martin is a law professor at the University of Western Ontario and A Bencher of the Law Society of Upper Canada