Tribute to Bora Laskin
There are, in litigation, winners and losers. The strength, really, of the litigation bar is the ability to carry on despite reverses. I know that every one of you tonight as you sit in the bath or lie on the sidewalk or whatever…. will remember the perfect answer to the questions that were asked and of course it doesn’t do you any good. The moot’s over and everybody’s gone home.I think there’s a danger with Bora Laskin that he’s become a kind of cardboard cutout. He’s an icon of the Canadian legal community, but he had a very difficult life, and overcame tremendous adversity. I just want to spend a minute talking about it so that you will really appreciate what this man did for Canada.
J’étais un étudiant de Laskin a l’Université de Toronto dans les années soixantes. J’étais avocat devant lui, devant la Cour d’appel de l’Ontario, et devant la Cour Suprême du Canada.
He was a remarkable man. He was a gold medalist at law school in Canada, and a gold medalist at Harvard; came back to Canada, couldn’t get a job. Why couldn’t he get a job? He was Jewish. It may seem unbelievable to you students sitting here in 2012 that somebody would be out of the game because of religion. And to be told, “Well, I’m sorry there are no jobs available for your sort.” But he was confronted with that. He got a teaching job up at Osgoode. He was an extraordinary professor, almost incomprehensible, as those of you who have read his texts will know. But brilliant.
My recollection of him is… one of his students in our class died of a heart attack at the age of 28… just dropped dead… too much exercise. He was at Hart House running around the track. Boom. And in the Jewish tradition of course, there is the shiva, and I went along, and there was Bora Laskin. Bora had no particular connection with this family, but it was a family that was very small. There wasn’t an extended family. He felt needed. He felt that he was helping, and so he stayed. And I thought, “Here’s the man who has been regarded as perhaps the leading labour arbitrator in Ontario certainly, a professor and author.”
But the human element of the man, just saying, well you stick by people to whom you owe loyalty and from whom you expect loyalty and of course one of the things that I think you all know in the profession of law now, is there’s no sense of loyalty within firms towards young lawyers, and from young lawyers towards old lawyers. The sense of the firm as a kind of regiment that you joined and you fought with through the years has sort of dissipated.
It was part of Bora Laskin’s makeup, that this sense of loyalty was at the very core of his being.
He then went on to the Court of Appeal, and we all used to comfort ourselves when we went up there that no matter how badly thrashed you were, we would say in the robing room, “Well, Bora understood my argument.” He just gave you that sense that you were getting through to Bora, and if you didn’t win, well it wasn’t Bora’s fault.
Then he went to the Supreme Court of Canada. It must have been a very long, lonely road for him. He taught, I think, the first course in civil liberties at a Canadian law school. Of course, before Bora and Caesar Wright, there weren’t Canadian law schools. It was all in the hands of the profession. And the profession took the view that we’re not really here to teach anybody anything. We’re here to make practicing lawyers. And the whole idea of the law as an academic discipline was completely foreign to them. I’m talking now up until 1953, I think the change was. Bora created all kinds of courses. He was very interested in civil liberties and human rights long before it became fashionable, and he was in a minority. The judges, for the most part, didn’t understand what he was talking about.
When he got to the Supreme Court of Canada and he tried to make something out of the Bill of Rights, he was in a minority in every case but Drybones, I think, was the only case, and he kept trying to make points like, the law of trespass shouldn’t really apply in shopping centres because they’re the modern town square, and freedom of expression should take place. Just because I own the shopping centre doesn’t mean I should be able to kick people off it who are trying to protest or manifest some sort of political position. That’s important discourse.
Minority, minority, minority, minority. His great triumph really was to bring Brian Dickson from Manitoba, a corporate lawyer, to the forefront of human rights. It was really Bora Laskin pounding away on Brian Dickson in case after case after case, that I think reshaped Brian Dickson into the great judge that he became. And as you know, they dissented so many times, Spence, Laskin and Dickson, they were known as “LSD”. They were sort of written off as fringe characters.
The whole of Bora’s life as an academic and as a judge was really in the Charter, because the Charter at last entrenched everything that he believed in. But in the early 80s, late 70s and early 80s, his health began to fail. He died in 1984, just before the first Charter cases started to reach the Supreme Court of Canada.
So, when you look back on Bora’s life, it was a struggle for things that he believed in. There were lots of reverses. He had great successes, of course. Huge fanfare when he became the Chief Justice of Canada. But to the things that mattered most to him, he never really had the opportunity to accomplish what he was capable of accomplishing and what he would have accomplished had he not been struck down by health.
So the point I’m trying to make is that when you think of the Laskin, and l’ancien juge en chef Laskin, don’t think of this two-dimensional figure. Think of him as a human being that came up, much as you are coming up through the system; he had many of the same dreams that you have, pursued them probably against greater odds than face you, kept going decade after decade in pursuit of these ideals. And if the Laskin means anything, it is to engender, surely, this inspiration of Laskin as a fighter for what he believed in, not as the accomplished Chief Justice, but as the idealist who really fought for what he believed in.
And so it’s a tremendous honour to participate in the Laskin, in the shadow thrown by this giant of our profession. And I don’t want to extend the evening, but I did want to emphasize this to you, because he becomes more and more distant every year. He’s into the past, he’s sort of… to those of us who knew him, of course, he’s very real. But you have not had that opportunity, so it is only through characters like me that you get some expression of what the man was like. So, think of Laskin when you’re proud of participating in the Laskin, as you are. Think of the qualities of Laskin that really made the man so great and that makes this memorial so fitting. So I just wanted to say that before we conclude on the best team.