The notion of a completely impartial judiciary took another body blow with Supreme Court Chief Justice Antonio Lamer’s recent admission that public opinion plays a role in important legal decisions.
Speaking at the Faculty of Law of the University of Toronto Feb. 6, Justice Lamer said popular opinion was a factor in his decision 10 years ago to overturn Canada’s former abortion law. This despite Lamer’s personal opposition to abortion.
“Had you asked me at a hearing if I was for or against (abortion), I would have said against,” the chief justice told his University of Toronto audience. His comments suggest that despite the justice system’s claims of impartiality, majority opinion plays a role in determining even the most basic legal considerations.
Lamer was responding to a question about the benefits of a Parliamentary committee reviewing appointees to the Supreme Court. His comment about public opinion playing a role in legal decisions was his way of arguing against such review committees.
An 18-year veteran of the Supreme Court, Lamer was appointed chief justice July 1, 1990. He was among the majority of justices who voted in 1988 to strike down the country’s former abortion law on the grounds that it violated women access to “a needed medical service.”
Lamer indicated the basis for his decision to reject the former abortion law was influenced in no small way by public opinion. “My reasoning is that unless you have a vast majority of people think something is criminal, you should not make it a crime,” he said.
Pro-lifers have long intimated that the Supreme Court is not immune from partisan considerations. Nevertheless the Lamer revelation comes as a shock to the country’s pro-life community.
Attorney Gwen Landolt, national vice-president of REAL Women of Canada, has closely monitored Supreme Court behavior, especially in the wake of the 1982 Charter of Rights and Freedoms.
“Mr. Lamer has made a truly astounding admission,” Landolt told The Interim. “Now the mask is off the Supreme Court. We all suspected that the justices were making political, rather than legal decisions, but now we have the chief justice more or less confirming it.”
Landolt said Lamer’s admission is certain to erode public confidence in the Supreme Court. “This (the 1988 Morgentaler case) was a major life and death decision and it was influenced by one man’s perception of popular opinion,” she said. “We have to wonder now on what other issues will he conduct his own private poll before making a ruling.”
Landolt suggested the problem stems from the Charter of Rights and Freedoms which in effect leaves Parliament subservient to the Supreme Court in terms of lawmaking. She said the Charter, with its vague language and undefined powers, created “nine absolute monarchs” who have used their new status to interpret legislation in unprecedented ways.
Landolt speculated that Lamer’s comment may have been inadvertent; nonetheless, she said the remarks are “highly inappropriate” and a misuse of the Supreme Court office.
David Beatty, a professor of constitutional law at the University of Toronto, told B.C. Report magazine that Lamer’s comment is one of the most shocking ever heard of a senior member of the judiciary. “The last thing a judge should do is to look at the will of the majority,” Beatty told B.C. Report. “His purpose is to serve as a check against tyranny.”
Other commentators across the country have been equally critical of Chief Justice Lamer’s revelation. Many say the comments confirm pro-life suspicions about the Supreme Court, particularly its tendency to overturn long-held values and traditions in the face of new and trendy ideals. As well, the Lamer comments give credence to criticism that the Supreme Court has usurped Parliament’s law-making prerogative.
Writing in B.C. Report magazine, Terry O’Neill said Lamer should either resign or be fired from the Supreme Court for his views.
“The fact that Chief Justice Lamer is saying that he looks to public opinion in making his rulings should be cause for great concern,” O’Neill writes. “He is revealing that the court over which he presides sways in the breeze of popular sentiment rather than standing firm on a foundation of
law.”
O’Neill also said Lamer’s comments seriously undermine public confidence in the Supreme Court and the justice system. “The bottom line is that we cannot trust this court,” he said. “We cannot trust it to hear cases impartially. We cannot trust it to weigh evidence appropriately. And we cannot trust it to reach decisions fairly.”
Paul Schratz, editor of the B.C. Catholic newspaper, echoed O’Neill’s view in a recent editorial. “In the case before the Supreme Court in 1988, at least one judge admits he helped to kill the law – not because he considered the law unconstitutional (the usual reason for striking down the legislation these days), but because he felt the majority of Canadians were opposed to it.”
At least one observer however, believes there may be some justification for Lamer’s citing of public opinion as a factor in certain legal decisions.
Iain Benson, a senior legal researcher with the Centre for Renewal in Public Policy, said “consensus” is an important aspect for the Supreme Court in making legal determinations under the Charter of Rights and Freedoms.
The Centre for Renewal in Public Policy is an Ottawa-based forum which provides critiques of selected Supreme Court decisions.
Benson cited a recent court ruling which found community standards to be an acceptable yardstick in regulating some aspects of public policy, such as obscenity.
“Despite giving apparent primacy to the views of individuals, the court has held that the views of the community could form the basis of constitutionally acceptable law, despite the limits on individual autonomy in the area of obscenity,” Benson said.
He added, however, that the Supreme Court remains inconsistent in its attitude toward the significance of majority opinion on legal decisions.
“This is because they (justices) are insecure about the relationship between morality and law,” Benson said.
