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Remarks of the Honourable Claire L'Heureux-Dubé
At the Ceremony to mark her Retirement
June 10, 2002

Madam Chief Justice McLachlin, thank you for your kind words. It was a privilege to sit with you and serve under your leadership and I thank you and all my present and former colleagues for their friendship and support all along those years.

I also want to take the opportunity presented by this special occasion to thank former Chief Justice Lamer for his patience with my many dissents and to wish him well. I am touched by his presence here on this occasion.

Mr. Minister of Justice of Canada, I am moved by yours words of praise, which I attribute more to your generosity than to the credit I am due, and I want to add my congratulations to a member of the Quebec Bar who is capable beyond his years. . .

Mr. Minister of Justice of Quebec, your presence here today brings back clear memories of our respective law practices as members of the Quebec City Bar and of the law practice of your partner at the time, Roger Pothier, who served as counsel to the Commission of Inquiry into Immigration, which I chaired.

I have followed with interest the progressive reforms you introduced during your first term as Quebec's Minister of Justice and which are continuing during your second term. I am thinking in particular of the legislation you recently introduced in the National Assembly concerning the civil union.

I thank you for your presence and your kind remarks.

Mr. President of the Canadian Bar, I see that you are very well informed and do not miss a detail! I thank you for mentioning the Canadian Bar Review which I had the honour to serve as Chairman of the Editorial Board and am happy to report that it is rated as one of the four best such reviews in the world and, of course, frequently quoted before the Supreme Court of Canada. This is a great achievement and may I say, it represents the tradition of excellence of the CBA in addition to be a bridge between the civil and common law academics. Long live the Canadian Bar Review!

Monsieur le Bâtonnier du Québec, you reminded me of 22 of the happiest years of my career as a member of the Quebec City and the Quebec Bar. At a time when women lawyers were still a rarity and when equality was not yet a popular notion, the Bar welcomed me readily, without discrimination. I shall always be grateful for it.

Madame le Bâtonnier de Québec, thank you for your kind remarks and for the friendship that the Quebec City Bar has shown me repeatedly throughout my career. I am very proud of the medals that the Quebec City, Montreal and Quebec Bars have awarded me. The trust and respect of one's peers is the highest accolade one can receive.

Finally, Marie-Claire, my first law clerk with François Lacasse, thank you for this text that brings back memories of my first years at the Supreme Court when the support and encouragement of my clerks, not to mention their talent and devotion, enabled me to survive this difficult transition. I would also like to acknowledge the wonderful assistance I received from my 42 law clerks during my 15 years at the Supreme Court of Canada. I think of them, in a sense, as my children -- legally speaking, of course! Their talent, competence, devotion and hard work far beyond the call of duty have made a great difference in my life at the Court. They were the heart and soul of my chambers. I thank them all, through you Marie Claire, for the joy they provided and for the excellence of their contribution to the Court's work. And, to them, I associate Lizette, Julie and André, my assistants. Their competence, support, loyalty, hard work, thoughtfulness and care have made all the difference day after day.

A number of people have made a difference in my life; many are here today, not the least my daughter Louise, Ethan and Simon Pierre who are the real joy of my life and so are my two sisters, my brothers-in-law and their spouses who are also here today. Two are missing, both judges and former law partners: Christine Tourigny and Sam Schwarzbard. Christine Tourigny passed away, in the prime of life, a few years ago while she was a member of the Quebec Court of Appeal, where she replaced me when I was appointed to the Supreme Court. She was an ideal colleague, an accomplished jurist who made her mark on the Court of Appeal and within the Bar, which honoured her by establishing the Christine Tourigny Award of Merit. Christine was a remarkable woman and a life-long friend whose humanity and intellect I greatly respected and whose friendship enriched my life.

Sam Bard, who passed away last January following a long career as a member of the Quebec City Bar and a judge of the Quebec Superior Court, gave me the opportunity to practise law by offering me a position with his law firm, at a time when law was not a woman's profession. He was a mentor, a caring and highly valued partner during the eighteen years that we practised law together with Jacques Philippon (also appointed to the Quebec Superior Court) and Roger Garneau (now head of our former law firm) both of whom I am delighted to see here today. I have often said that I owe my career to Sam and I will be eternally grateful to him for his competence, his wisdom, his integrity, his loyalty and his incomparable sense of justice that characterized his practice of law and mine. A Francophile and friend of the arts and letters, Sam never hesitated to defend the rights of minorities and the disadvantaged, no matter how unpopular the cause, as he did in the Saumur case,⁽¹⁾ and many others. He was a mensch and a very close friend.

I see among those who are here today former colleagues, all of whom were there when I joined the Court and who gave me support and advice. One who passed away recently, Justice Estey, early on gave me this advice: "Claire, get away from the Court as often as you can"; he would be pleased to know that I did abide by his wise admonition (which he himself practised) and I have gained very precious experience from my contacts throughout the world. Justice McIntyre was a friend before I joined the Court and provided extremely useful lessons in drafting particularly in criminal law where he was a master. Madame Justice Bertha Wilson who had been appointed in 1982 was there to greet me and be my guardian angel all along, hearing my frustrations at time, supporting my initiatives and always a model and an intellectual giant.

That period of transition was not an easy one for me and I thank all my colleagues of the time including Gérard La Forest, a very close friend and a wonderful thinker as were Jean Beetz, Gerry Le Dain, Bill Stevenson, Peter Cory for their indefatigable friendship. And this is also true of my present colleagues who, without exception, have provided the ideal family in law with their experience, their intellectual qualities, their hard work and strong commitment to justice.

This is a great feature of our collegial Court that we have been able to preserve personal friendships through, at times, very strong and vocal disagreements on the law. This group dynamic is one of the most valuable assets of our Court: united in heart and mind in the pursuit of justice while often divided on the means to achieve it in particular cases. The intensive exchanges between colleagues which go on daily are a way to refine our views, to challenge our assumptions, to keep an open mind and to modify and at times change our preliminary views. It is an incessant intellectual challenge. This I will greatly miss.

I would like to render a particular tribute to Chief Justice Dickson under whom I served until his retirement. He provided the intellectual leadership allied with an incredible sense of duty and commitment to excellence. One aspect of his judgments which, in my view, has not been sufficiently explored so far is his quest for equality which is particularly revealing in his opinions in family and employment law. He was a true feminist (he quoted Catherine McKinnon did not he?)⁽²⁾ who believed, as I do, in the "revolutionary" notion that women are people entitled to the same respect, consideration and justice as every member of society. If "the court has been highjacked by feminists", it started a long time ago and particularly with Chief Justice Laskin's dissent in Murdoch⁽³⁾ which became the majority almost five years later in Rathwell⁽⁴⁾, Chief Justice Dickson in Action Travail des Femmes⁽⁵⁾, Brooks⁽⁶⁾, Janzen, Sorochan⁽⁷⁾, Pettkus v. Becker⁽⁸⁾, Madame Justice Wilson in Lavallée⁽⁹⁾ and Morgentaler⁽¹⁰⁾, Justice Cory in Peter v. Beblow⁽¹¹⁾, to name just a few of the judgments rendered by ex-colleagues with whom I had the great privilege to sit.

I want to pay a special tribute to Justice Bertha Wilson who was the angel who guided my first steps at the Court. Her advice was precious, her support invaluable throughout. I will always be extremely grateful to her for having broken the glass ceiling. Her brilliant intellect, her principled approach to the law, her analytical skills and her open mind were precious all along.

All these people made a difference in my professional and private life, and I think of them today and I thank them for their generosity, support and encouragement during the difficult times in my life. Many have given me great joy, including my colleagues in private practice, whom I just mentioned, and my fellow judges in the Superior Court and the Quebec Court of Appeal, with whom I have maintained very strong friendships, and a number of whom have done me the honour of being here today. I would be remiss if I did not mention the presence here today of another colleague who is responsible for what is perhaps the most satisfying aspect of my law career. I am referring, of course, to Paul-André Crépeau, the great civil law jurist for whom I have so much admiration. I have often said to him that I owe my career on the Bench to him for a number of reasons, but primarily because one day he had the wonderful idea of involving me in the work of the Quebec Civil Code Revision Office⁽¹²⁾ (of which he served as the one and only president), as a member of the Committee on Family Law and Family Courts, which I eventually chaired. His very broad knowledge of the law, his desire to produce a modern Civil Code,⁽¹³⁾ free of antiquated policies no longer relevant to Quebec's dynamic and modern society, and his great talent for organization all helped to shape a Civil Code that reflected his vision of justice for the citizen. This admirable work is his most enduring legacy and I will always be grateful to him for inviting me to take part in it. I have not forgotten, of course, the incomparable Mr. Justice Albert Mayrand, the leading light and outstanding drafter of the Committee on Family Law at the Civil Code Revision Office, whom I succeeded as chair after benefiting from his advice and hard work.

There are a number of other people near and dear to me who are not with us today, but who contributed in one way or another to my happiness and my career, and who shared my joys and sorrows. I am thinking in particular of my parents, especially my mother, my husband and my son, who are in my thoughts on this moving occasion.

I have had the privilege to serve under Chief Justice Dickson, a true humanist and a great proponent of respect for fundamental human rights. The Supreme Court of Canada has a great tradition of protecting fundamental human rights starting long before the Charter as illustrated by decisions such as Saumur⁽¹⁴⁾, Roncarelli⁽¹⁵⁾ and a number of others since the Charter, among more recent ones Burns and Raffay⁽¹⁶⁾, Suresh⁽¹⁷⁾, Baker⁽¹⁸⁾. Our jurisprudence on these issues as well as those relating to equality and discrimination have inspired other Supreme and Constitutional Courts around the world. The Constitutional Court of South Africa in the case of Hugo⁽¹⁹⁾ quoted from our decision in Egan⁽²⁰⁾ and adopted the test developed by our Court under the equality provisions of S. 15 of our Charter. A decision of our Court in Bazley⁽²¹⁾ was followed in a recent judgment of the House of Lords⁽²²⁾, where Lord Steyn said:

My Lords, I have been greatly assisted by the luminous and illuminating judgments of the Canadian Supreme Court in Bazley v. Curry, 174 DLR(4th) 45 and Jacobi v. Griffiths, 174 DLR(4th) 71. Wherever such problems are considered in future in the common law world these judgments will be the starting point.

These numerous illustrations are far from the only ones.

During my career at the Bar and on the Bench, I was privileged to work with a number of NGOs throughout the world in the human rights field and this experience has made me more conscious of the need for judicial independence and the respect for the rule of law as well as the wonderful reputation Canada enjoys all over the world for the integrity and competence of its judiciary and democratic government. Canadian judges as well as members of the Bar and the Canadian Bar Association are exporting throughout the world their expertise on issues such as case management, jurisprudence in human rights and equality, judicial independence and judicial education.

Canada is now becoming the country where judges and lawyers come from all over the world to learn modern skills and discuss legal issues. Judicial education projects funded by CIDA and delivered by judges, lawyers and academics are being conducted all over the world from China to Morocco to Eastern Europe, to Ethiopia and Ukraine to name just a few. This is a wonderful example of cooperation between countries which can only raise awareness of human rights and other important issues and at the same time expand the experience and expertise of our own legal community. We should, as Canadians, be thankful that our government has shown great leadership in the support of such endeavours.

While President of the International Commission of Jurists,⁽²³⁾ I was struck by the frequent and more and more blatant attacks on the judiciary throughout the world. The Zimbabwe saga is but one of those numerous examples. The independence of the judiciary is the guarantee that citizens will have justice. Although Canada is one of the countries where we can be proud of our judicial independence, it is a fragile freedom to paraphrase the title of Tom Berger's book⁽²⁴⁾. The Board of Regents of the American College of Trial Lawyers has recently spoken about the threat to judicial independence in the U.S. in the following terms:

The resurgence of unfair criticism of the judiciary in the form of threats of retaliation and accusation against certain judges and courts by public officials, commentators and lawyers as a result of particular judicial decisions is impairing confidence in our judicial system.

(...)

The long recognized hallmark of this independence is the ability for judges to perform their responsibilities "without fear or favor". The judge's assignment is to administer justice according to the rule of law and to protect the rights of the people both as to each other and from excesses of the other branches of government. Judicial independence is a means to the end of justice for all.⁽²⁵⁾

In the words of the New York Times columnist Bob Hebert: "An intimidated judge is a worthless judge"⁽²⁶⁾. According to Lord Steyn:

The stability of democratic institutions ultimately depends on public confidence in the way in which the three coordinate branches of government carry on their functions. As the weakest of the three branches, the judiciary can effectively fulfill its role only if the public has confidence that the courts, even if sometimes wrong, act wholly independently. It is of paramount importance that the nation must have confidence in judges at every level as independent and impartial guardians of the rule of law.⁽²⁷⁾

It is reassuring to read recent polls that our courts enjoy 80% of support in the population and, having been a member of the judiciary for more than 29 years, this trust is well placed. We can be very proud of our judiciary and even more so when compared it with some other judiciaries of the world. Perhaps an even greater tribute to our country and our fellow citizens is the respect Canadians have for the Charter, twenty years after its adoption.

On a more personal note, my media reputation as a "great dissenter" (greatly exaggerated I believe given that our Court's judgments are unanimous 80% of the time) underlines an important feature of our system of justice. Dissents are a positive force which enhances collegiality, provides the legal community with alternatives, influences majority rulings and if the words of Chief Justice Hughes of the Supreme Court of the United States are to be believed:

A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court has been betrayed.⁽²⁸⁾

René Char observed that a man who questions nothing in life deserves neither respect nor patience.⁽²⁹⁾ To quote George Bernard Shaw, "all progress depends on the unreasonable man".⁽³⁰⁾ I imagine he would have included a woman in this category! I rest my case in defense of dissents.

Camus gave us these truly inspiring words: "La justice n'est pas seulement une idée, c'est une chaleur de l'âme." I would add: Justice is the rights of the weaker and equality is the conscience of the law.

At the dawn of my 50 years in the law, I feel privileged to have served under such Chief Justices as Chief Justice Dickson, the Right Honourable Antonio Lamer and the present Chief Justice. I can only say that rendering justice is a challenging profession, and perhaps more and more so today, whether at the Bar or on the Bench but it is the noblest and most rewarding of all. The media have called it a "dream job" and in many ways it is but I must say that in 1948 when I entered law school the "dream" afforded to women in the law was not a nomination on the Bench, let alone the Supreme Court. If the "dream job" has come along, it is a tribute to this magnificent country where everything is possible (even for women and other minorities now) and there is always room at the top for anyone who wants to make the effort. For me, it was a privilege and although the road was not an easy one at times, it was worth the travel. I went into law because of my interest in justice and I did my best to render it.

As I begin my retirement, I think of a comment made by a colleague at my swearing in as a judge of the Quebec Superior Court: "Remember", he said to me, "that you are a slave for the rest of your days". He was right, but who, I ask, could think of anything more rewarding than to be a slave at the service of freedom, dignity and justice?

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Notes

1. Saumur v. Quebec (City), [1953] 2 S.C.R. 299; Saumur c. Québec (Procureur général), [1964] S.C.R. 252.
2. Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252.
3. Murdoch v. Murdoch, [1975] 1 S.C.R. 423.
4. Rathwell v. Rathwell, [1978] 2 S.C.R. 436.
5. C.N.R. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114.
6. Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219.
7. Sorochan v. Sorochan, [1986] 2 S.C.R. 38.
8. Pettkus v. Becker, [1980] 2 S.C.R. 834.
9. R. v. Lavallée, [1990] 1 S.C.R. 852.
10. R. v. Morgentaler, [1988] 1 S.C.R. 30.
11. Peter v. Beblow, [1993] 1 S.C.R. 980.
12. In this regard, see: La Réforme du Code civil, Textes réunis par le Barreau du Québec et la Chambre des notaires du Québec, Sainte-Foy, Québec, Presses de l'Université Laval, 3 Vols., 1993.
13. Civil Code of Québec, S.Q. 1991, c. 64.
14. Supra, note 1.
15. Roncarelli v. Duplessis, [1959] S.C.R. 121.
16. United States v. Burns, 2001 SCC 7. File No.: 26129.
17. Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1. File No.: 27790.
18. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
19. Hugo v South Africa (President), [1997] S.A.J. No. 4.
20. Egan v. Canada, [1995] 2 S.C.R. 513.
21. Bazley v. Curry, [1999] 2 S.C.R. 534.
22. Lister v. Hesley Hall Ltd., [2001] H.L.J. No. 22, at para. 27.
23. International Commission of Jurists.
24. T. Berger, Fragile freedoms: Human Rights and Dissent in Canada, Toronto, Clarke, Irwin, 1982.
25. M.A. Ellis (ed.), American College of Trial Lawyers, The Bulletin, n 40, Irvine, California, Winter 2001-2002 p. 8.
26. B. Hebert, A plan to Intimidate Judges, N.Y. Times, Dec. 4, 2002, at A29.
27. Lord Steyn, The Case for a Supreme Court, All Souls College, Oxford, The Neil Lecture, March 1, 2002, at p.13 (Unpublished).
28. C. E. Hughes, The Supreme Court of the United States 68 (1928), noted in K.M. ZO Bell, "Division of Opinion in the Supreme Court: A History of Judicial Disintegration", (1959) 44 Cornell L.Q. 186, 211.
29. R. Char, Fureur et mystères, Paris, Gallimard, 1996, 224 p.
30. G.B. Shaw, Man and Superman, Maxims for Revolutionists, 1903.

Remarks of the Honourable Claire L'Heureux-Dubé
At the Ceremony to mark her Retirement
Ottawa, Ontario
Monday, June 10, 2002