Jun. 22, 2004. 09:32 AM

Iacobucci, a 'giant' of a judge, retires
Supreme Court justice known for his civility
Canada's legal heavyweights bid fond farewell

TONDA MACCHARLES
OTTAWA BUREAU

JONATHAN HAYWARD/CP Retiring Supreme Court Justice Frank Iacobucci.

OTTAWA—Justice Frank Iacobucci leaves the country's top bench this week with no regrets and a parting plea for greater civility and mutual respect between legislators and the courts.

In a wide-ranging interview before his official "swearing-out" ceremony at the Supreme Court of Canada yesterday, an impassioned Iacobucci — the judge who popularized the idea of "dialogue" between courts — suggested the "dialogue" has become strained.

A key author of groundbreaking and controversial decisions that "read in" to the Charter equality rights for homosexuals, Iacobucci was keen to avoid anything that might be taken as political comment in the midst of an election.

The role of judges, especially on the same-sex marriage question, has become an issue on the campaign trail, along with the Conservative party's call for more judicial "deference" to Parliament.

Iacobucci refuses to be drawn into those discussions or say how his replacement should be chosen, but he made clear his notion of "dialogue" is a more respectful one than is currently taking place, and his idea of "deference" doesn't mean giving in and accepting at face value what legislatures say.

"We have different functions," said Iacobucci, a former deputy justice minister, "and I think we must have some fundamental principles of respect for each other's role. I think we are all agents of democracy.

"In all of that, if there are differences, the differences should be conducted, or expressed in a way that is mutually respectful.

"I don't mean to say deferential," he said. "The point is that the Constitution clearly puts that role on the judiciary to interpret the laws, and to the extent that they are inconsistent with the Constitution, they are to be of no force and effect.

"This doesn't mean we get into, in effect, shouting matches with each other, or otherwise say we are suspicious of one another. I don't think that's constructive at all."

It was Iacobucci's own civility and good humour that dominated a good-bye ceremony yesterday, prompting wave after wave of sustained applause from a gathering of legal heavyweights and friends that included retired Supreme Court colleagues Gerard LaForest, Claire L'Heureux-Dubé, and Charles Gonthier, senior judges from many provincial and federal courts, as well as former clerks, students, and family.

A former law professor and faculty dean at the University of Toronto, Iacobucci was deputy justice minister from 1985-88 under Brian Mulroney's government.

Justice department officials say his tenure changed the way laws are drafted even to this day, with a focus on ensuring they would pass constitutional muster — or be "Charter-proof." Iacobucci smiles now at suggestions "charter-proofing" has become a more mundane "get-it-past-the-court" affair. "It's almost like tax planning," he said.

He became chief justice of the Federal Court in 1988, before being appointed by Mulroney to the high court in January, 1991, to replace Bertha Wilson.

A baseball fanatic and tennis buff, Iacobucci's tenure on the high court was also marked by his promotion of judicial education, collegiality, as well as more open relations with the media (the Canadian Supreme Court, whose hearings are televised, is one of the most accessible to media in the world).

He emerged as a consensus builder on the court, says Osgoode Hall dean Patrick Monahan. With now-retired justice Peter Cory, Iacobucci rallied unanimous or often majority opinions on many contentious cases.

"He's pretty much a centrist. He ruled about one-third of the time in favour of Charter claimants, which is pretty much the court average over-all," said Monahan.

Iacobucci and Cory were able to get consensus in controversial appeals like the 1998 Vriend decision that ruled 8-1 in favour of a gay Alberta teacher who had been fired because of his sexual orientation. Iacobucci also wrote the unanimous opinion that set out a way to analyze Section 15 equality rights claims in the Law case after years of confusing rulings from the court.

Often a tough questioner of litigants who come before him, Iacobucci was moved to tears by yesterday's tributes.

His voice breaking, Iacobucci, who turns 67 in a couple of weeks, thanked his court colleagues, staff, and especially his wife Nancy, a lawyer.

Waving and grinning at his three grandchildren sitting in the walnut-panelled courtroom, he said he relishes the chance to spend more time with them.

Federal Justice Minister Irwin Cotler told how he hung up the phone after Iacobucci advised him of his upcoming departure, and tears welled in his eyes.

"We have, the Canadian people, have lost a giant of a Supreme Court judge, a giant of a man," Cotler had told his wife.

Cotler, a respected human rights scholar and former law professor, counts Iacobucci as a personal friend. He is a "renaissance legal scholar" in many areas of law, Cotler said, but quoted Iacobucci's writings on equality rights in the Charter, saying he defined a philosophy of human dignity that reflects "a vision for a just society."

Chief Justice Beverley McLachlin, who has clashed with Iacobucci over the issue of how much deference the courts owe to Parliament, praised him for his "intellectual leadership" on the court in the crucial years "that gave the Canadian Charter of Rights and Freedoms its initial scope and vigour."

She said he "showed us all how a judge's heart and mind can work together in the service of justice."

In his chambers, Iacobucci, the son of Italian immigrants, said he has no second thoughts in leaving at what is now a politically sensitive time. He is two years past his eligible retirement date, but years away from the mandatory retirement age of 75.

"It is bittersweet. It's corny to say, but it is bittersweet in that I love the work of this court. I will miss it greatly," he said.

He frankly admits the case of Sue Rodriguez, who lost her appeal for a legal right to assisted suicide, still "stands out on the classic tension between one's heart and one's mind."

"My heart was for her, but my mind led me to be with the majority on that. And I think about her from time to time. It's just something — she struck me as being a woman of great character, great decency whose wish was to die with dignity. She had an impact on me."

The departures of Iacobucci and Justice Louise Arbour this month have created two Ontario vacancies on the bench that are to be filled under a yet-to-be determined appointment process that will doubtless include greater parliamentary scrutiny.

Iacobucci declined comment on the judicial appointments process.

He said he expects to continue work on legal and judicial education projects, and knows governments often turn to retired judges with tasks, but he hopes to balance those with more time at his west-end Toronto home.

http://www.torontostar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_Type1&c=Article&cid=1087855810045&call_pageid=968332188492