Chief Justice (Antonio Lamer) shocks Canada: the rule of opinion polls.

Supreme Court Chief Justice Antonio Lamer shocked many this winter by an admission that he voted to strike down Canada's existing abortion law in the Morgentaler ruling of 1988 because he thought that this was what the public wanted. "Unless you have a vast majority of people to think something is criminal, you should not make it a crime," he declared at a conference in February 1998 at the University of Toronto. Justice Lamer made his remarks while explaining why he thinks that public confirmation hearings of those nominated to the highest court won't work. While he claims personal opposition to abortion, his views as so stated during a confirmation hearing would have misled the public as to how he would rule when on the bench, Lamer contended. Below, Edward McBride, retired Professor of Political Science at St. Mary's University, Halifax, examines the Chief Justice's aberrant reasoning and its fearsome consequences.

Editors

Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.

Felix Frankfurter, Associate Justice, United States Supreme Court, 1939-1962.

Judges who purport to take the public pulse in the process of making new law are brethren to theologians who discern `the signs of the times' to warrant departures from orthodoxy. Of the latter in Canada, there has been, unfortunately, no lack. Of the former in Canada, there has been, until now, little overt display. If Canada's leading jurist is any indication, however, the judges in their roles may have more in common with the theologians in their tweeds than heretofore imagined.

Antonio Lamer has been a member of the Supreme Court of Canada since 1980 and, as its Chief Justice since 1990, he is the sixteenth eminence to hold that post since Parliament created the tribunal in 1875. Like his predecessors in the Court's centre chair, he is learned in the law, looked to by the legal profession, studied by scholars and, as senior member of the nation's judiciary, presumptively deserving of respect from the country at large.

This respect, nevertheless, is not unconditional. Earlier this year, on February 6 at the Faculty of Law of the University of Toronto, the Chief Justice himself put it at risk by admitting that the force of public opinion rather than the strength of personal conviction, or the weight of established law, determined his concurring vote in Regina v. Morgentaler, the January 28, 1988, decision that struck down the existing Criminal Code provision for abortion.

The Chief Justice's declaration stunned and infuriated a great many Canadians. There ensued calls for resignation, removal, or recantation--eventualities that, given the proclivity of the current legal establishment to close ranks, simply were not in the cards. The initial furore may have subsided, but serious concerns remain. The top judge's incoherence encompasses several separate but related categories: moral, attitudinal, institutional, jurisprudential, philosophical, topical, and historical.

1. The cardinal inconsistency disclosed by the Chief Justice's position is its lack of any moral coherence. On the one hand, he has professed his opposition to abortion as, presumably, a matter of principle. On the other hand, he has explained his acquiescence in its decriminalization as a reflection of the popular will. This judicial embrace of political expediency is as incompatible with coherent moral reasoning as it is incongruous on the part of a non-elected official, whose security of tenure insulates him from the play of pressure, interest, and opinion in the nation.

2. Moreover, the mantra, `I am personally opposed, but . . .', as applied to the particular circumstances of the Morgentaler Case, brings forth an attitudinal incoherence. On the one hand, there is the posture of humility to the will of the majority and reluctance to exercise judicial power. On the other hand, there is a twofold hubris: (a) confidence in the ability, from the remoteness of the bench, to ascertain the views of this supposed Canadian majority in respect to a highly vexed issue and (b) readiness to overturn, rather than to uphold, existing law--law enacted by parliament and subject, like other legislation, to change or retention by the elected representatives of the people.

3. The precise context of Mr. Lamer's revelation points further to an institutional inconsistency--one all the more glaring because it was so sharply at odds with what he had intended. At the University of Toronto, he argued against confirmation hearings for prospective justices of the Canadian Supreme Court. He stated that, at such a hearing, a nominee like himself might state his opposition to abortion. But should said candidate, once confirmed, subsequently vote as Lamer actually did in Morgentaler, then this would embroil the Court, as an institution, in unprecedented political controversy. Irony of ironies, it was Lamer's own illustration that tended to bring the administration of justice into disrepute. What he would spare the Court, he instead inflicted upon it.

4. Supreme Court cases should yield an `exact principle of decision'--technically, a Ratio Decidendi. In what certainly seems `ignorance in an apt subject', the Chief Justice's explanation of this vote in Morgentaler does not square with its actual Ratio Decidendi. He has told the law school audience that his support of the court's judgment predicated itself on the view that `unless you have a vast majority of people think something is criminal, you should not make it a crime'.

The incontestable quality of this statement does not fit the tentative character of the Court's real reasoning at the time. In point of fact, the leading opinion in Morgentaler, with which Lamer concurred, was that of then Chief Justice Brian Dickson. It only contingently decriminalized abortion by holding that Section 251 (as it then was) of the Criminal Code was so differentially administered throughout Canada that it violated the procedural guarantee of liberty under Section 7 of the charter of Rights.

The ruling, as handed down, did not establish `the right to an abortion' (only Madame justice Bertha Wilson's separate opinion, which spoke for herself alone, even suggested as much). Indeed, the Dickson judgment left the door ajar for Parliament to enact a revision of s.251 that would remedy its judicially perceived defects. This is hardly the approach of a Court that recognized, a la Lamer, the existence of a `vast majority' of the populace in favor of abortion's decriminalization. Thus Canada's now ranking jurist, the sixteenth Chief Justice, must stand guilty as charged, of jurisprudential incoherence.

5. The technical considerations, supra, readily slide into theoretical ones. Taken to its logical conclusion, Mr. Lamer's Morgentaler rationale issues in a brief for majority, rather than constitutional, rule. Under a constitution `the rule of law' superintends, controls, and refines the popular will. In contrast, the majority rule reduces to the maxim `vox populi, vox Dei' (the voice of the people is the voice of God).

While this may accord with the Chief justice's personal philosophy of government, it ill accords with Canada's governing philosophy. This established philosophy received judicial formulation by Ivan C. Rand (Puisne Justice of the Supreme Court, 1943-1959), in Roncarelli v. Duplessis (1959): `The Rule of Law (is) a fundamental postulate of our constitutional structure.' The mere recitation of Rand's proposition serves to highlight the philosophical incoherence of the court's current chief.

6. This Chief has blundered further by compromising himself on the major topic presently before the Court. That salient juridical issue now under consideration by the high tribunal is the constitutionality of unilateral succession from Confederation by Quebec. It was already Sub Judice by February 6, when Chief Justice Lamer, albeit in another context, uncritically endorsed majority rule as a judicial guidepost. Since the current constitutional question in some essential sense arrays the rule of law against a raw majoritarianism, Mr. Lamer's off-court reflections are indeed ill-timed. The exact moment when the Supreme court of Canada must bend its collective effort to exercise a prudent constitutionalism is no time for its Chief to lend his support to crude populism. Such a development represents topical incoherence with a vengeance.

7. History imprints a tradition upon every institution. A prime example would be a court of last resort, with its requisite emphasis upon stability, continuity, and predictability in the law. As the late American constitutional scholar Alexander M. Bickel wisely observed, `A Supreme court is not the place for the heedless break with the past'. Lamer's lapse, while perhaps not a full-blown break with the past, still qualifies as historical inconsistency. His statement, its context, and its results, taken together, are demonstrably at variance with the history and tradition of the very institution that he heads. In the same year as Mr. Lamer's accession to the chief justiceship, the present author described `the traditional Canadian judicial ethos' as follows:

It conduced to the removal of the judiciary from excessive public controversy. It inclined judges toward the low profile that normally presents a difficult target. It reinforced the appearance of judicial impartiality . . . . It reminded judges that they were unelected and unaccountable government officials who have no special competence to supply the answers to difficult problems of social policy. (1)

The Chief Justice stands remiss on each of the above counts. Let them, in turn, stand as a bill of particulars against his stewardship of the Supreme Court's tradition.

In summation, the entire catalogue of cumulative incoherence emanating from the presiding judge of Canada's highest tribunal does more than voice a lament for Lamer. It also sounds a sad note for the Court and, ultimately, for the country.

(1) . Edward J. McBride in Supreme Court of Canada Decision-Making, by Randall P.M. Balcome, Edward J. McBride, Dawn A. Russell, Toronto: Carswell, 1990, pp. 227-8.