LSD email@example.com_county.toronto.toronto_star 2005-06-25 published
LASKIN was Supreme
The late Supreme Court chief justice Bora LASKIN went where no Canadian had gone before A non-conformist, he reinvented a stuffy bench while appealing to the layman, writes Tracey TYLER, Page F3
Canada's great chief justice of the 20th century had a word for his successes in life: accidentalism. If true, Bora LASKIN's arrival at the Supreme Court in the spring of 1970 might have been one of the best-timed accidents in Canadian history.
To the south, the United States Supreme Court was coming off a series of star turns with its history-making decisions on civil rights, from an end to school segregation to the Miranda ruling on the right to remain silent.
Life at Canada's top court had little of the same electricity.
Caught in a straitjacket of English law, never daring to take the pulse of the public, its nine male judges saw their job as correcting errors of courts below rather than developing a body of Canadian-made law, an approach that earned the court no profile internationally and little respect at home. Lawyers bemoaned its hidebound style.
Within a decade, however, an unassuming former law professor delivered the shock treatment many felt it needed.
LASKIN's appointment was the legal equivalent of Pierre Elliott Trudeau sweeping into office, Supreme Court Justice Ian BINNIE told a recent Toronto symposium that examined LASKIN's legacy and his enduring appeal -- 35 years after his appointment to the court, as its first Jewish judge, and 40 years after his appointment to the Ontario Court of Appeal.
Many judges have served on the Supreme Court longer, but LASKIN had an indelible impact.
The court that captured the country's attention this month with a landmark ruling on health care was essentially one he created. He took a court that banned lawyers from citing works by living authors and "reinvented" it -- opening its doors to interveners and narrowing its focus to issues of national importance, BINNIE said.
LASKIN, who died in 1984 at age 71, never lived to see the impact of the Charter of Rights and Freedoms. But as they assess his place in history, many legal scholars credit him with paving the way for the Charter by pushing judges to look beyond the letter of the law and consider social realities.
There's something more.
"He was the only serious, intellectual, non-conformist disturber to serve as chief justice," BINNIE said.
It seems Canadians liked what they saw.
"In my research, everyone knew Bora LASKIN... but no one who was not a lawyer could ever identify any chief justice after him," said Philip GIRARD, an associate dean at Dalhousie Law School and author of Bora LASKIN: Bringing Law to Life, a new book out this fall.
"LASKIN had a certain spark and he was associated with a lay person's idea of justice. He sort of helped convince them the court was on their side."
It helped that he appealed to notions of what a chief justice should be. Looking every inch a part of the establishment, LASKIN fit perfectly with his mutton-chopped predecessors pictured around the Supreme Court, BINNIE said.
In truth, he was the justice system's most trenchant critic and an anti-establishment figure, a trait sometimes discernible through an "armour-piercing gaze" that would put former Montreal Canadien Rocket Richard to shame, he said.
LASKIN enjoyed the oyster special at Ottawa's Rideau Club, but his favourite snack was a sardine and onion sandwich. He once pinch-hit for the governor general by delivering the throne speech (coached in French by daughter Barbara) but considered his proudest achievement belting the longest home run out of the ballpark in his hometown of Fort William, now part of Thunder Bay.
Frequently parting company with fellow judges on the law, he earned a reputation, some say undeservedly, as a "great dissenter" and some detractors.
"There were many lower court judges who hated him. They thought he was totally crazy," GIRARD said.
LASKIN dissented in no less than 108 cases in his 14 years on the court and many of his opinions, considered radical at the time, did become law, including a groundbreaking 1975 ruling that Iris Murdoch was entitled to an equal share of the family's Alberta ranch after separation.
He most famously broke rank in the politically charged 1981 patriation reference. True to his belief in strong central government, LASKIN found it would not defy convention to bring the Constitution home from England and entrench a Charter without consent from the provinces. The majority view forced a first ministers' conference and a deal that alienated Quebec.
BINNIE said LASKIN's independent streak is why he remains intriguing. Trudeau's decision to name him chief justice in 1974 would have been like making Martin Luther the Pope, he added.
It couldn't have helped that he leapfrogged over other judges with more seniority.
A chilly atmosphere predated his arrival at the court and may explain why he felt one of his great contributions had nothing to do with law. It was building a lunchroom, said his son, John, a judge on the Ontario Court of Appeal.
"At times, I think my dad found the Supreme Court of Canada to be a pretty isolated place. Judges tended to go their own ways."
LASKIN said he's not sure what his father would have thought of the symposium. He preferred to look to the future, not the past. But the irony of the Law Society of Upper Canada hosting the event in Osgoode Hall would have brought a smile to his face, he said.
The law society snubbed LASKIN and two fellow professors, Caesar WRIGHT and John WILLIS, by refusing to recognize the faculty of law they created at the University of Toronto after they quit their Osgoode Hall teaching jobs in 1949.
LASKIN studied undergraduate law at U of T, then completed a master's and his legal articles before heading to Harvard University to study for a master of law under future U.S. Supreme Court Justice Felix Frankfurter in 1936-37.
Franklin Delano Roosevelt's New Deal was in full swing and people like Frankfurter were challenging conventional legal thinking. A similar skepticism permeated LASKIN's academic writings.
"His basic message was the courts are really out of touch. They don't understand modern conditions and are living in a nostalgic dream world," GIRARD said.
LASKIN was born in Fort William on October 5, 1912, to Russian immigrants whose priority was a good education for their sons and who helped pay for it by renting out their home.
LASKIN's father moved into a hotel and ran the family's furniture store, while LASKIN's mother went to work as a housekeeper in Toronto. LASKIN and his brothers followed.
The academic credentials he racked up at Harvard weren't enough to get him a job after graduation.
Shut out of Toronto law firms by restrictions on Jewish lawyers, he wrote case summaries at 50 cents each for law reports. In 1940, he took over for his former teacher at University of Toronto and became a "workhorse" later at the law school, teaching more courses than anyone else, said former student and retired judge Horace KREVER. LASKIN's children say he would have happily stayed a professor.
"I think he enjoyed his work more than anyone I have known," said his son. "He also had a capacity to work extremely long hours and a tremendous ability to survive on very little sleep, which I don't have."
Two and 3 a.m. bedtimes were common, said daughter, Barbara, who recalls her father coming down the hall late at night, rubbing his hands "in glee" after knocking off another judgment.
LASKIN worked in a basement office his children called "the dungeon" but always had dinner with his children and wife, Peggy.
There were many family vacations by car. Though not a good swimmer, LASKIN liked being near water and found it soothing. When they were together, he rarely talked shop.
"My dad had two great loves in his life. One was law. The other was his family," his son said. "He watched me play basketball he watched Barbara dance."
"The LASKINs had a hoop in their driveway and it got a lot of use from the neighbourhood," said Justice Stephen GOUDGE of the Ontario Court of Appeal, who got to know LASKIN as the father of his nursery school friend John.
Later, he came to appreciate LASKIN's role in shaping the country's postwar labour law.
Courts were hostile to administrative tribunals, such as labour relations boards, but LASKIN argued they should be left to do their work. He was also in high demand as a labour arbitrator and GIRARD considers LASKIN's arbitration rulings among his most significant.
They include his decision during a 1958 strike at a Scarborough plant that arbitrators could award damages for breach of a collective agreement.
On the Supreme Court, LASKIN was in the minority in siding with Sophie Carswell's right to picket her employer's business at a Winnipeg shopping centre, considered off limits as private property. LASKIN likened malls to modern-day town squares.
As a judge, LASKIN liked nothing more than having former law students appear before him. But nothing "peeved" him more than sloppy English, Barbara said. A lawyer who uttered the words "at this point in time" was likely to be met with a stern stare, followed by the question, "You mean, 'today?'"
He was proud when a former English teacher called to say she used one of his judgments as an example of good writing. He always wrote in longhand, said his son, who does the same.
As he settled in on the court, LASKIN churned out more judgments every year, said symposium organizer Neil FINKELSTEIN. He dissented less often. When he did, Justices Wishart SPENCE and Brian DICKSON/DIXON often joined him. They were known as the " LSD gang."
And the others? LASKIN rarely spoke candidly of those who disagreed with him, but former law clerk John McCAMUS, now an Osgoode Hall Law School professor, recalls him letting down his guard just once. When he arrived at the chief justice's office, LASKIN, with a twinkle in his eye, handed him a dissenting judgment.
Then, he dusted off an apocalyptic phrase, one used by reporters to describe conservative judges who blocked progressive U.S. legislation in the 1930s. "I wonder," he said, "what the Four Horsemen will think."
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