Bora Laskin and the obscurity of the Supreme Court

Court judgments are some of the best literature you’ll find in Canada

Does anyone here know much about Bora Laskin? Probably not. And yet he was one of only a handful of people who has left an indelible imprint on Canadian society. If you were to trounce down to Bay Street, or to Osgoode Hall, or to Flavelle House off Queens Park, you would find small communities that worship the man, almost as a saint. But out in the general public? Not a chance.

Laskin was Canada’s Chief Justice from 1973 to 1984. It has been said by many that he was the first great Chief Justice this country knew. In the recent book, The Laskin Legacy: Essays in Commemoration of Chief Justice Bora Laskin, Irwin Law has published an intriguing hagiography of the man. Edited by Neil Finklestein and Constance Backhouse, the collection is based on speeches from a symposium in honour of the great judge held in 2005.

Now, be careful. Though the book has a diverse set of perspectives on Laskin – we learn about his underprivileged upbringing in Thunder Bay, we learn about his impact on the court, we learn about his belief in a strong federal government – it is meant solely for an audience of legal professionals and academics. If you are anything less than comfortable with such terms as “constructive trusts” and “fiduciary duties”, this book is, sadly, not for you.

Perhaps this reveals a greater problem. Anyone exiting one of Canada’s twenty law faculties could probably write a detailed essay (with proper citation, no less) on this great legal mind. But he is, at best, an obscurity to others.

This need not be the case. The writings of our country’s great judges can be as powerful as political tracts and as evocative as great literature. But because lawyers alone read the judgments of our courts, the public is kept ignorant of some truly great writing. True, certain Supreme Court decisions involving tariffs, income tax rates or land use planning can be highly technical and, thus, boring. Yet much of what Laskin wrote (and nearly all of what his successor as Chief Justice, Brian Dickson, wrote) contains flashes of brilliance: prose that can judged alongside the works of Burke, Mill and Arendt.

Look at the Americans. Their Supreme Court has a halloed place within the pantheon of collective myth. Their fourth Chief Justice, John Marshall, is revered as the founder of a truly independent judiciary. Earl Warren, who was Chief Justice throughout the turbulent sixties, is known for his progressive stance on civil rights and desegregation. And, today, the extremist philosophy of the originalist Antonin Scalia is known – and feared – by much of the decidedly “liberal” media.

In Canada, however, the personalities on the court don’t receive the same coverage. Perhaps, with far fewer lawyers per capita, we have less of a legal culture. People here are also much less litigious.

But we need not reserve some of the country’s great writing to its judges and lawyers. Especially not since the Charter of Rights and Freedoms affects everyone equally. The notions of justice, of individual rights and of the collective good should become part of our overall discourse. My challenge to Irwin Law, then, is to publish a book not aimed at law faculties and firms, but rather at the general reading public, to let Canadians know about the rich culture of legal writing that exists on their doorstep.

This post was first published on Open Book: Toronto’s Writers in Residence page on May 10, 2008.

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