OUTDATED RULINGS NEED REVIEW: jurist

by Janice Tibbetts, Ottawa Citizen Nov.18 2003 A3

The former Chief Justice of the Supreme Court of Canada says some of the bench's rulings are no longer good law and should be updated to keep up with the times.

"Society has evolved and it's obvious what you decided years back is no longer the right thing to decide", said Antonio Lamer, who retired three years ago. "It's evident, and even my own judgments, they get out- dated. Some of the things I said 20 years ago, I might say differently today."

Mr. Lamer compared the judiciary to the car industry, saying: " Certain things become obsolete .. the brakes and the hydraulic system and this and that. Things change so I see nothing wrong with judgments being modified and qualified."

Mr. Lamer, now a consultant with an Ottawa law firm, declined to elaborate on which decisions might be legal relics. But three legal experts built on his comments by citing decisions they think the court should review: mandatory retirement, alimony, national security, and areas of criminal law. "It's a fluid system and there are judgments out there in all sorts of contexts that could be changed," said Don Stewart, a criminal law expert at Queen's University, who thinks there are outdated decisions on the gathering of evidence against criminal suspects.

Constitutional law expert Julius Grey has plenty of company in his claim that the court should re-visit a 13-year-old ruling that upheld forced retirement at age 65. "I think the world is moving forward, postponing retirements and, yes, I think, it could be re-opened in view of the social reality." There have been calls from several quarters to abolish mandatory retirement as part of a movement to end society's discrimination against the aging population. Philip Epstein, a Toronto family law expert, said a 1992 alimony decision is outdated because it does not reflect the growing economic equality between men and women. The decision of Moge vs. Moge considered to be leading case law, ordered a Winnipeg man to pay indefinite support to his ex-wife, from whom he had separated 19 years earlier. Mr. Stewart and Mr. Epstein think the high court, which decides which case it will hear, is stubborn about going over old ground.

Mr. Grey cautioned that the court should not be too aggressive about re-crafting its rulings because it would be unfair to the poorer parties who exhausted all their time and money seeking a legal pronouncement. "To frequent a re-opening would favour the powerful, those who could afford to go through it all again," he said.

In recent years, the court has started to tweak, or even over-haul, its earlier decisions, including judgments on capital punishment, gay rights, and more recently, the power of human rights and other tribunals to rule on the Charter of Rights. Chief Justice Beverley McLachlin, without giving specifics, said last year that the Supreme Court is open to taking a second look at rulings made in the early days of the Charter of Rights. She noted that the Court already has "departed from the previous doctrine" in a couple of cases to be in step with current thinking at home and abroad. For instance, a 2001 ruling banning the extradition of two Canadians to the United States without assurances that they wouldn't be put to death reversed a 1992 decision in which killer Charles Ng was extradited to the United States to face execution. Earlier this year, now retired Justice Charles Gonthier was direct in his repudiation of a 1996 decision that only allowed judges, not human rights commissioners, to interpret the Charter of Rights- a decision he declared was "no longer good law".

Mr. Stewart noted that the court, in a decision last month, effectively reversed a Lamer ruling against self-incrimination of accused criminals. The bench, saying the earlier ruling had limited application, unanimously rejected an accused rapist's claim that DNA samples should be thrown out in keeping with his right not to incriminate himself.