I never had any trouble with the question: Would you defend a murderer who you knew had committed a murder? To me, it’s a non-question. Every murderer is entitled to a defence and if I’m retained then I’ll defend. But it’s a luxury lawyers have. You don’t have to take responsibility for your client’s position, although you have to operate within the rules. When you become a judge, your opinions do not reflect the interests of your client. They reflect your own best judgment of the proper disposition. That’s an interesting change of framework that takes a bit of time to adjust to on the bench.
How did you see the rise of the Charter’s influence?
In 1982, I was associate deputy minister in Ottawa. I was tangentially involved in the Charter. At the departmental level, we did not appreciate it would have the huge impact that it has had. First of all, the court had effectively gutted the Bill of Rights and been widely criticized for it. The Charter came along and what most impressed me at the time was that the Parliamentarians were more aggressive on strengthening the Charter than the government was. If you look back at the original draft of the Charter, equality rights were simply stated as a non-discrimination clause. It was the parliamentary committee that put in these very broad equality rights. In a number of cases, they tightened the language and inserted provisions the department certainly hadn’t recommended. When the Charter came into effect, it took quite a while for lawyers in general, and the department in particular, to understand this tremendous seismic shift that the court had undertaken and made something of the Charter.
I think a lot of that, when I look back, was due to Dickson. Because here was the old soldier who had had his leg shot off in the war. He was from Saskatchewan, and everybody knows Saskatchewan only breeds sensible people. He wasn’t a Montreal intellectual or a Vancouver la-la land product. He was the salt of the earth and when he stood up to the Canadian public and said, ‘Look, this is how the Charter is to be interpreted,’ he had enormous street credibility.
We were so fortunate as a country to have such a powerful, universally respected figure to push the Charter as hard as he did. It’s not often that history is changed because somebody happens to be the right person in the right place, but I can tell you that the difference between what we in the D of J perceived as the likely scope of the Charter and what it has become owes a tremendous amount to the street cred of Brian Dickson.
One of the great figures, of course, was Bora Laskin – Canada’s answer to Oliver Wendell Holmes. He was an absolute titan. He is almost never cited today, but his influence, I think, is really making Dickson what he was. If you read the early Dickson judgments, they are very conventional, Manitoba Court of Appeal, corporate lawyer, here-the-law-and-what-the-cases-say and here’s the outcome. Over the years, you could see Laskin bashing away at him and Dickson moving visibly into a more and more open approach to the law in general and civil liberties in particular. Laskin became a kind of John the Baptist figure.
What about Chief Justice Antonio Lamer?
I think he was seen as a much more intellectual figure. There is a wonderful simile he gave, when there was a huge controversy over whether Section 7 of the Charter was simply a procedural/due process clause or whether it involved substantive justice. Some of Department of Justice people went to a parliamentary committee and said that as far as the Justice Department was concerned, it should be read only as due process. But Lamer said: “Look, somebody comes up to you and gives you a banana and he says: ‘I’m giving you a beautiful apple.’ You say: “But this isn’t an apple, it’s a banana.” And he says: “But I’ve told everybody it was a banana!”
Lamer brought difference strengths to the Charter and made an immense contribution. But it was a different period. At the time he became Chief Justice, Dickson had already established the framework within which the public perceived the Charter.