Remembering Bora Laskin: a giant’s shoulders
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.