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| Steven Penney |
The breadth and stature of his accomplishments are no less than stunning, including a Rhodes Scholarship; graduate degrees from Oxford and Yale; professorships at the New Brunswick and Ottawa law schools; appointments as dean of law at the University of Alberta, assistant deputy attorney general of Canada and commissioner of the Law Reform Commission of Canada; and, after his retirement from the court, counsel at Stewart McKelvey.
Few would dispute that Justice La Forest was one of the most intellectually gifted judges to ever sit on the Supreme Court. But his intelligence was buttressed by a practical wisdom gained from deep engagement with the world around him. His extensive government work, for example, helped shape his view that the state could be both an acute threat to individual liberty and a powerful means to protect the vulnerable from harms inflicted by private actors.
While he may not have been the most famous of Canadian judges, Justice La Forest’s reputation among scholarly minded jurists was unmatched. Not long after his retirement from the court in 1997, a conference (with an accompanying collection of papers, “Gérard Vincent La Forest at the Supreme Court of Canada”) was convened at the University of New Brunswick. The contributors to this Festschrift included some of the most accomplished legal thinkers in the common law world, including Beverley McLachlin, Kent Roach, John Borrows, Donovan Waters, Michel Bastarache, Lord Cooke of Thorndon, Jane Stapleton and Robert Sharpe. Justice La Forest’s Supreme Court jurisprudence, produced over just 12 years, inspired over 500 pages of analysis covering virtually every major legal subject, including private obligations, criminal law, privacy, federalism, Charter interpretation, and international and comparative law.
I was fortunate to be present for an instance when Justice La Forest’s insight shifted the law in real time. In Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, the court had to decide whether the failure to provide sign language interpreters to deaf hospital patients violated the equality guarantee in s. 15 of the Charter. Throughout the litigation, the parties and lower courts had assumed, based on existing case law, that the Charter applied only to the hospital’s governing statute and not its discretionary operational decisions.
During the claimants’ counsel’s submissions, Justice La Forest gently interjected to ask whether the hospital’s administrators might have been acting in a governmental capacity in deciding how to provide a statutorily mandated service. Recognizing that she had been granted a lifeline, counsel pivoted to outline just such an argument. Unsurprisingly, it became the linchpin of Justice La Forest’s unanimous opinion finding that the discretionary decision to deny interpretation was subject to the Charter and violated s. 15. (In his reasons, Justice La Forest modestly attributed this insight to counsel: Eldridge at para. 24).
Though he retired from the court almost three decades ago, Justice La Forest’s influence continues to this day. Contemporary practitioners and scholars are intimately familiar with his many jurisprudential innovations, including his integrated conception of contractual, tortious and fiduciary obligations (see, for example, Norberg v. Wynrib, [1992] 2 S.C.R. 226; Hodgkinson v. Simms, [1994] 3 S.C.R. 377); normative view of privacy protection under s. 8 of the Charter (see, e.g., R v. Dyment, [1988] 2 S.C.R. 417; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wong, [1990] 3 S.C.R. 36; Thomson Newspapers v. Canada, [1990] 1 S.C.R. 425); pragmatic yet principled stance on structural federalism (see, e.g., Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; R. v. Hydro-Québec, [1997] 3 S.C.R. 213); commitment to the principles of comity and conformity in transnational matters (see, e.g., Libman v. The Queen, [1985] 2 S.C.R. 178; Canada v. Schmidt, [1987] 1 S.C.R. 500; Morguard Investments Ltd v. De Savoye, [1990] 3 S.C.R. 1077; London Drugs v. Keuhne & Nagel International, [1992] 3 S.C.R. 299; Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; R. v. Harrer, [1995] 3 S.C.R. 562); and expansive, economically informed articulation of mobility rights under s. 2(d) of the Charter (see Black v. Law Society Alberta, [1989] 1 S.C.R. 591).
Even Justice La Forest’s dissents continue to resonate. In two 1990s decisions, for example, the court found that Charter remedies are unavailable to persons whose own rights were not violated, even if the police violated others’ rights in the same course of conduct (R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Belnavis, [1997] 3 S.C.R. 341). Justice La Forest wrote penetrating minority opinions in both cases, warning in one that evidence may be excluded in response to state misconduct “not to protect criminals but because the only really effective safeguard for the protection of the constitutional right we all share is not to allow use of evidence obtained in violation of this public right when doing so would bring the administration of justice into disrepute” (Edwards, at para. 64). Twenty-eight years later, the court moved some distance towards his view, finding that individuals not suffering direct Charter infringements could claim a s. 7 violation when the proceedings against them were tainted by systematic violations of others’ rights (R. v. Brunelle, 2024 SCC 3).
Similarly, in its 2021 decision upholding the federal carbon tax legislation, the court took great pains to distinguish the law from the one Justice La Forest would have found ultra vires 33 years earlier (References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11; R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401 at para. 54). Considering the Greenhouse Gas court’s many approving references to La Forest’s dissent in Crown Zellerbach, one could be forgiven for assuming that he had written for the majority (References re Greenhouse, 2021 SCC 11 at paras. 54, 90, 99, 201).
Few jurists have had this kind of impact on Canadian law. But Justice La Forest was not only a superstar academic, lawyer, policy adviser and appellate judge. He was also a gracious, kind and decent man — patient and generous with his law clerks and staff, and a devoted husband, father and grandfather. His jurisprudential, scholarly and personal legacies will endure for decades to come.
Steven Penney is a professor at the University of Alberta Faculty of Law. He served as law clerk to Justice La Forest from 1996 to 1997.
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