Reflecting on his multifaceted career as a legal scholar, public servant and judge, Gérard La Forest said, “If there is one element that links the various experiences in my career, it has been my commitment to be mindful of the human stake in justice.” These were the words of a man learned in the law who never forgot the lessons of his humble beginnings and who put family values above all.
Supreme Court of Canada Justice Gérard La Forest.Michael Bedford/Supreme Court of Canada
In 1985, Justice La Forest explained the judicial role to students and faculty at his alma mater, the University of New Brunswick, as adhering to the law but avoiding what he called “a mechanical application of rules.” The judge, he said, must dig below the surface and “attempt to apply those rules justly” based upon the values of “our common humanity.”
He recognized the limits of judicial lawmaking but said: “Whenever I come across a case where the law can be refashioned for the public good and private justice, I shall continue to do so – with relish!” He told the audience at his Supreme Court of Canada swearing-in that along with technical legal skills, “It is the human and social values that must guide us if we are to meet the needs of order and justice in our society.”
Gérard Vincent La Forest, CC, KC died at the age of 99 on June 12, at his home in Fredericton, surrounded by his family. Justice La Forest’s wife, Marie, to whom he was married for 49 years, predeceased him in 2002. He leaves his five daughters, Marie, Kathleen, Anne, Elizabeth and Sarah, nine grandchildren and one great-grandchild.
Born on April 1, 1926, in Grand Falls, a small New Brunswick town on the St. John River, he was the youngest of the 12 children of Philomène (née LaJoie) and J. Alfred La Forest. Alfred worked as a planer in the lumber industry. Philomène died when Gérard was only 14 years old. Gérard was proud of his hardworking parents who lived a simple life and grew their own vegetables. His attachment to Pepsi, the family’s cow, gave him a life-long aversion to eating beef.
He did his undergraduate studies at St. Francis Xavier University and then studied law at the University of New Brunswick, graduating in 1949. He attended Oxford University on a Rhodes Scholarship, graduating with a BA in jurisprudence in 1951, to which he later added Master of Laws and Doctor of the Science of Law degrees from Yale.
He began his own practice in Grand Falls with an eye to entering politics. The political career did not happen, but his timing for starting a law practice was ideal. The town was emerging from a lengthy economic slowdown and he was retained to deal with a significant number of lawsuits, most of which he was able to settle.
As he told law students in a lecture about alternative legal careers, “At the end of the year, I owned a car and had a little money left in my pocket.”
Despite his success in practice, Mr. La Forest (as he was then known) was always open to new possibilities. When the opportunity arose, he turned to what would be an extended career of moving between the federal public service and the academy. He accepted the offer of a position with the Combines Branch of the federal Department of Justice where he worked from 1952 to 1955. Eager to return to New Brunswick, he did a short stint as legal advisor to K.C. Irving at Irving Oil and then embarked upon his academic career at the University of New Brunswick. He served as dean of law at the University of Alberta from 1968 to 1970.
Gérard La Forest invested as Companion to the Order of Canada by Canada's 26th governor-general Adrienne Clarkson in 2000.JONATHAN HAYWARD/The Canadian Press
Gérard La Forest returned to the federal public service in 1970 as assistant deputy attorney-general, where he was involved in the process of constitutional reform, the formation of the Canadian Human Rights Commission and Indigenous land claims. He was appointed in 1974 to the Law Reform Commission of Canada during a period when it was engaged in an ambitious program of reform of family and criminal law.
In 1979, he returned to the academy as the director of the University of Ottawa’s Legislative Drafting program. He wrote more than 50 periodical articles, books on Canadian constitutional law, extradition law and a long list of published government reports and studies. His scholarly work was recognized by his election as a fellow of both the Royal Society of Canada and the World Academy of Art and Science.
Gérard La Forest embarked on his judicial career in 1981 with his appointment to the New Brunswick Court of Appeal. His appointment to the Supreme Court of Canada came just four years later and coincided with the first wave of cases under the Charter of Rights and Freedoms making its way to Canada’s highest court.
Along with chief justice Brian Dickson, and justices Antonio Lamer and Bertha Wilson, Justice La Forest played a key role in the transformation of Canadian law in the Charter era. He was considered by many to be a Charter conservative. He dissented from the majority judgment in R. v. Morgentaler, the decision that struck down Canada’s abortion law. He believed that in certain cases legislatures should be allowed to limit Charter rights in order to meet important social objectives and resisted a strict or rigid test under the Charter’s Section 1 “reasonable limits” clause, preferring a more flexible, case by case approach that would not unduly constrain legislatures.
On the other hand, he wrote many significant judgments that broke new ground under the Charter. He ensured that the Charter would safeguard personal privacy. In a 1990 decision he wrote: “A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths … would be one in which privacy no longer had any meaning.”
Justice La Forest also resisted a narrow interpretation of the Section 7 right to liberty as including only physical freedom, insisting that it should include the right to make fundamental personal decisions. He gave equality rights a strong interpretation in a case holding that public hospitals were required to provide sign language interpreters to hearing impaired patients. He affirmed that Aboriginal title was not subject to provincial extinguishment.
In many cases, he occupied the centre of the Court, moderating the push toward a more active judicial role, but maintaining a firm commitment to the fundamental rights and freedoms protected by the Charter.
Justice La Forest believed that “while the primary purpose of law is order, justice is its secondary purpose … [but] the secondary purpose supports the first because just rules engender respect for the law.” Following precedent maintained order and stability, but when the common law was out of step with society’s values, he did not shy away from the need for an active judicial role. He believed that judges “unavoidably adapt the law to the times.”
Supreme Court of Canada Justices Claire l'Heureux-Dube, Gérard La Forest and John Sopinka listen as a lawyer makes a statement at the start of landmark hearings in the taxation of child support payments in 1994.Fred Chartrand/The Canadian Press
Perhaps his greatest achievement in keeping the common law current with contemporary needs came with his decisions in the early 1990s that rewrote the rules governing how Canadian courts recognize and enforce the judgments of other jurisdictions, including the judgments of another province. He insisted that it was time to abandon parochial 19th-century rules developed in England that were unsuitable for a modern federation in the modern age of extensive cross-border trade.
He wrote judgments developing what is known in law as the “constructive trust,” a court order stating that someone who has acquired property unfairly holds that property for the benefit of the rightful owner, even if there was no written agreement. He also wrote important decisions advancing the reach of “fiduciary duties,” imposing an obligation on commercial actors in appropriate cases to avoid self-dealing and to put vulnerable parties’ interests ahead of their own.
On his retirement from the Supreme Court of Canada in September, 1997, Gérard and Marie returned to Fredericton. He was the Distinguished Legal Scholar in Residence at the University of New Brunswick, and counsel at the firm of Stewart McKelvey. He continued his work on public policy issues, writing an important report for the Privacy Commissioner of Canada and co-chairing a task force that made recommendations to improve New Brunswick’s relations with Indigenous peoples.
“He brought unmatched intellect and experience to the Supreme Court of Canada,” Chief Justice Richard Wagner said in a statement. Retired chief justice Beverley McLachlin described him as “a kind and loyal man” who had one of the finest legal minds she had ever encountered.
When Gérard La Forest began his legal career, narrow legalistic formalism was the dominant judicial philosophy. Cases were decided by the strict letter of the law without regard to social context or the law’s underlying values. By the time of his retirement from the Supreme Court in 1997, formal legal rules were applied, in his words, in a manner that was “mindful of the human stake in justice.”
He made a remarkable contribution to Canadian law. His judgments reveal a combination of Oxford’s analytic rigour, Yale’s integration of social science, a practical eye for justice in individual cases, a scholar’s understanding of the broad sweep of the law, a law reformer’s zeal for improving the law, and a senior public servant’s understanding of the demands and realities of government.
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