Re­mem­ber­ing Bora Laskin: a gi­ant’s shoul­ders

The Canadian Jewish News (Toronto) - - News - — JEN­NIFER TZIVIA MACLEOD

It wouldn’t hap­pen to­day. With a BA, MA and bach­e­lor of laws from the Uni­ver­sity of Toronto, and a master of laws from Har­vard, the bril­liant young lawyer, Bora Laskin, sim­ply couldn’t find an ar­ti­cling po­si­tion – be­cause he was a Jew. In­stead, he wrote le­gal di­gests for spare change, un­til he was fi­nally ad­mit­ted into the Uni­ver­sity of Toronto in 1940.

In the years be­fore mul­ti­cul­tur­al­ism, the Jewish com­mu­nity of Canada hardly dared to rock the boat when Jews couldn’t work in law firms, in­tern in hos­pi­tals or be ad­mit­ted to the Gran­ite Club. Laskin, how­ever, dared to stand out, and as a re­sult, he walked alone for much of his ca­reer, wait­ing for the world to catch up.

Born in Fort Wil­liam (now Thun­der Bay), Ont., on Oct. 5, 1912, Laskin was born to Men­del (later, Max) and Bluma Laskin. His fam­ily never used his He­brew name, Raphael. His un­usual name was most likely given for U.S. sen­a­tor and failed pres­i­den­tial can­di­date Wil­liam E. Bo­rah of Idaho, known for his pro-jewish views.

Grow­ing up, Laskin at­tended public school by day and He­brew school in the after­noon through­out ele­men­tary and high school, be­com­ing trilin­gual in English, Yid­dish and He­brew. A pop­u­lar and well­spo­ken boy, he be­came pres­i­dent of Fort Wil­liam’s Young Ju­daea club and taught for two years at the Fort Wil­liam Tal­mud To­rah. Even in his youth, Laskin was a bril­liant speaker who won the Toronto Star cup in his fi­nal year of high school for a speech en­ti­tled, “Canada and Em­pire Free Trade.”

Ar­riv­ing in Toronto in the 1930s from the peace­ful co-ex­is­tence of small-town On­tario must have been a shock to Laskin. Anti-semitism was ram­pant: the Christie Pits ri­ots, a down­town bat­tle be­tween Jews and non-jews in a public park, broke out in Au­gust 1933. Philip Gi­rard, Laskin’s most prom­i­nent bi­og­ra­pher, posed the question af­ter Laskin’s death of whether he was a lawyer who hap­pened to be Jewish, or a Jewish lawyer. Laskin some­times seemed to down­play his Jewish iden­tity, while at other times, he seemed to em­brace it. While Laskin might have pre­ferred to be a lawyer who hap­pened to be Jewish, dis­crim­i­na­tion early in his ca­reer likely forced him into the role of Jewish lawyer, a self-per­cep­tion, which would per­haps in­form his sen­si­tiv­i­ties on mi­nor­ity is­sues for the rest of his life.

None­the­less, Laskin hur­dled ev­ery ob­sta­cle, ris­ing quickly in the areas of con­sti­tu­tional and labour law. In 1970, prime min­is­ter Pierre Trudeau ap­pointed him to the Supreme Court, the first Jew to sit on its bench. Three years later, Trudeau named him chief jus­tice. This was a con­tro­ver­sial choice not be­cause of Laskin’s re­li­gion, but be­cause of his stance as a labour dis­pute ar­biter in the 1950s and ’60s and his views on civil rights, in­clud­ing un­pop­u­lar mi­nor­ity judg­ments that had made him a folk hero among lib­er­als, hu­man­ists and civil lib­er­tar­i­ans. In a sense, he was the ideal legacy of the Trudeau years. As Os­goode Hall Law School dean Lorne Sossin wrote in a trib­ute, “Just as Trudeau con­jures the im­age of a con­fi­dent, cos­mopoli­tan, risk-tak­ing po­lit­i­cal age for Canada, Laskin is in­voked as the standard-bearer for an in­tel­lec­tu­ally rig­or­ous, mod­ern, pro­gres­sive le­gal age for Canada.”

Early in his Supreme Court term, Laskin was lauded for his ar­tic­u­late dis­sent in a judg­ment, which de­ter­mined that First Na­tions women lost their sta­tus if they mar­ried non-first Na­tions men. The ma­jor­ity had de­ter­mined that this did not vi­o­late women’s equal­ity, but Laskin wrote that this was equiv­a­lent to ad­mit­ting “that the Cana­dian Bill of Rights does not ap­ply to In­di­ans on a re­serve, nor to In­di­ans in their re­la­tions to one an­other whether or not on a re­serve.” The ma­jor­ity de­ci­sion, he con­tended, com­pounded sex­ual dis­crim­i­na­tion with racial dis­crim­i­na­tion, sug­gest­ing that it was ac­cept­able to dis­crim­i­nate against women as long as they were from First Na­tions back­grounds.

Yet Laskin shouldn’t be dis­missed as an across-the-board lib­eral. In 1974, leg­endary civil-rights lawyer Clay­ton Ruby said, “Laskin is not a lib­eral, still less is he a rad­i­cal; in a po­lit­i­cal spec­trum, he goes all over the place. He almost seems to avoid a string of judg­ments which would char­ac­ter­ize him.” De­spite many pro­gres­sive decisions, for in­stance, he ran­kled at the men­tion of fem­i­nism. When jus­tice Bertha Wilson was nom­i­nated as the first woman on to the Supreme Court, Laskin was among nu­mer­ous old-guard mem­bers vo­cif­er­ously ask­ing, “Is she ready?” The true question was prob­a­bly whether Canada was ready for a fe­male Supreme Court jus­tice. Yet right af­ter Wilson was of­fi­cially on the bench, the court heard an ex­tremely com­pli­cated patent case in­volv­ing Shell Oil. Laskin turned to her and sug­gested that she write the ma­jor­ity opin­ion, which she did – bril­liantly.

Laskin has been de­scribed as a prophet for mi­nor­ity rights and the Con­sti­tu­tion, who, like Moses, did not live to see the prom­ise he had worked for ful­filled. In 1984, the Supreme Court heard its first chal­lenge un­der the brand new Char­ter of Rights. Laskin was too ill to par­tic­i­pate in de­lib­er­a­tions. He died on March 26, 1984.

Dis­cussing the legacy of Laskin’s years, Sossin has writ­ten that, “Lega­cies are de­fined not by the ac­com­plish­ments of the past but, rather, by the in­flu­ence those ac­com­plish­ments have on the present.” He also wrote that Laskin isn’t quoted too of­ten any more, de­spite his years of work and ground­break­ing le­gal decisions. The law moves on, and what was con­sid­ered ground­break­ing in the 1950s may seem almost self-ev­i­dent in 2017.

Yet it is also true that each Supreme Court stands on the shoul­ders of the gi­ants who pre­ceded it, each de­ci­sion build­ing on what was once sur­pris­ing and in­no­va­tive. Bora Laskin was one of those gi­ants.

SUPREME COURT OF CANADA PHOTO

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