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Remembering the Honourable Mr. Justice Charles D. Gonthier

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Remembering the Honourable Mr. Justice Charles D. Gonthier Remembering the Honourable Mr. Justice Charles D. Gonthier Martin J. Valasek* t was with some trepidation, but without hesitation, that I accepted the Journal’s invitation to write a tribute to Justice Charles Gonthier, formerly a fellow member of the Journal’s IAdvisory Board and my mentor for the wonderful year that I spent under his guidance as a clerk of the Supreme Court of Canada. As I sat down to write, my mind turned naturally to the day, a year earlier, that I was sitting in a pew of the St. Viateur Church in Outremont, along with hundreds of others, to celebrate the life and mourn the death of Mr. Gonthier. Tributes to Mr. Gonthier were written during his lifetime, tributes have been written since his passing and several tributes were delivered at his funeral. No tribute was more personal or more moving, however, than the one uttered by his son during the eulogy he delivered that sunny day in Outremont. Pierre Gonthier spoke of his father’s profound love for and dedica- tion to his family, his colleagues and his work, and how those qualities enabled him to draw on a seemingly endless reserve of patience–be it on the bench facing unruly litigants, or at home helping his wife Mariette deal with their five boys. With words and emotion that resonate in me still, Pierre concluded his eulogy by thanking his father for loving his children, for teaching them how to love others, and, ultimately, for teaching them to love themselves. I had the great privilege of being selected to be one Mr. Gonthier’s clerks from 1998 to 1999. He had been a Puisne Judge of the Supreme Court of Canada for some ten years. As I began my clerkship, the judgment in the Reference re: the Secession of Quebec1–in which Justice * Martin J. Valasek is a Partner at Ogilvy Renault LLP. 1 Reference re: the Secession of Quebec, [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385. JSDLP - RDPDD VALASEK Gonthier played an important role–had just been issued by the Court. That year remains one of the most cherished experiences of my life. During this period, which involved regular meet- ings with the Judge, I came to know the man that others have quite rightly described as “a perfect gentleman.”2 The obituary in theGlobe and Mail praised Mr. Gonthier as “[a] scholar, philosopher and original thinker, and a man of principle and integrity.”3 Mtre. Gérald D. Tremblay, Mr. Gonthier’s colleague at the law firm to which he returned after his retirement from the Supreme Court in 2003, wrote in his own tribute that “[t]here was an usual calm and quiet force about him,”4 and “a nature deeply rooted in extraordinary simplicity and deep humility, the sign of true greatness.”5 What legacy has this remarkable jurist left for us in this Journal’s field of focus? To begin, what does it mean that this great and good man, after a brilliant career in private practice and on the bench, elected to turn his attention to sustainable development? Undoubtedly, it must mean that sustainable development is a worthy pursuit. Further, what do Mr. Gonthier’s ideas contribute to the discussion about how we, as a community–be it at a city, a country, or the world-wide level–can achieve the elusive goal of environmentally sustainable and socially desir- able economic development? Mr. Gonthier’s ideas on sustainable development, and more specifically on the role of law in sustainable development, are a natural extension of his philosophy on the interplay between law, ethics and morality.6 On the relationship between law and morality, Mr. Gonthier affirmed one of the basic precepts of liberalism, namely that “[t]he law cannot impose the majority’s moral views of the ‘good life’ on the rest of the population.”7 While the law requires a moral foundation in order to attract the willing support of the members of society, its moral content is necessarily and correspondingly limited to a common moral denominator shared by these members. If the law strives too quickly to “legislate” what certain members (but not all, and perhaps not even the majority) consider to be the “right way” to live, then the law loses its legitimacy.8 This is an important insight into the limitations of the law as a tool for achieving the objectives of sustainable development. 2 Mahmad Jamal (a Toronto lawyer and Gonthier clerk in the mid-1990s), quoted in the Globe & Mail’s obituary, “Ex-jurist Left A Complex Legacy,” The Globe & Mail (20 July 2009), online: The Globe and Mail <http://v1.theglobeandmail.com/servlet/story/LAC.20090720. OBGONTHIER20ART2222//TPStory/Obituaries> 3 Ibid. 4 Gérald Tremblay, “A Tribute to a Great Man, the late Charles D. Gonthier” (13 November 2009), online: McCarthy Tétrault <http://www.mccarthy.ca/article_detail.aspx?id=4703>. 5 Ibid., borrowing from the tribute delivered at his funeral by the Honourable Justice Claire L’Heureux-Dubé. 6 In exploring some of Mr. Gonthier’s ideas, I have relied in part on the tribute that Professor Fabien Gélinas wrote for the McGill Law Journal earlier this year, in which he traced the intellectual themes woven through Mr. Gonthier’s writings. See Fabien Gélinas, “Une justice fraternelle : éléments de la pensée de Charles Doherty Gonthier” (2010) 55 McGill L.J. 1. 7 Charles D. Gonthier, “Law and Morality” (2003) 29 Queen’s L.J. 408 at 414. 8 See Gélinas, supra note 6 at 3-4. VALASEK Volume 6: Issue 1 Mr. Gonthier also thought deeply about the relationship between law and community, and the importance of “fraternity” as the “forgotten leg of democracy.”9 In this vein, Mr. Gonthier reminded us that, in an age of “freedom” and “equality,” there are corresponding obligations that members of society owe one another in order to live in freedom and equality. In other words, for Mr. Gonthier, it was clear that there are no rights without responsibilities. At the same time, Mr. Gonthier acknowledged that our mutual responsibility to one another and, he would say, to the environment and to future generations, could not be imposed through the rule of law alone: The rule of law is fundamental to an ordered society. Black-letter law serves to create a certain level of determinacy and predictability in the outcome of legal dis- putes. But an ordered society requires commitment to others; otherwise order will not prevail for very long. A society that does not succeed in meeting the needs of a significant segment of its population is a society doomed to instability, no matter how many black-letter laws it has. There can be no proper application of the law in such a context. Thus, as a complement to the rule of law, there is the spirit of the law. The spirit of the law is not concerned so much with setting down rules. Rather it reflects the values which a society draws upon in its development of legal rules. Sharing the logic of sustainable development, these values of the spirit of the law must include cooperation, commitment, responsibility, community, trust, fairness, security and empathy. These are constituent elements of solidarity or fraternity. These values, like liberty and equality, are fundamentally moral values, values to which we aspire though seldom attain. They interact with liberty and equality while also interacting with each other and together they weave the cloth of fraternity.”10 It follows from these observations that, for Mr. Gonthier, sustainable development was more about values–about the spirit of the law–than about black-letter rules. Or, put another way, the realization of sustainable development in our society is more a cultural challenge than strictly a legal one. If sustainable development promotes a system of values, what value lies at its core? For Mr. Gonthier, when he delved beyond the general value of fraternity, the concept was about the specific value of avoiding economic waste: It is obvious that the whole concept of sustainable development is tied to the notion of avoiding economic waste and trying to meet the needs of the largest number of people while ensuring a long-term environmental and social viability of the means chosen to meet those needs. This is nothing other than a desire to build a commu- nity where there is respect for the needs of others and a respect for both present and future generations.11 9 See Charles D. Gonthier, “Liberty, Equality, Fraternity: The Forgotten Leg of the Trilogy, or Fraternity: The Unspoken Third Pillar of Democracy” (2000) 45 McGill L.J. 567. 10 Charles D. Gonthier, “Sustainable Development and the Law / Le développement durable et le droit,” (2005) 1 McGill J.S.D.L.P. 11 at 13. 11 Ibid. JSDLP - RDPDD VALASEK In this respect, returning to the relationship between sustainable development and the law, Mr. Gonthier was encouraged by what he saw as the law’s concern with avoiding economic waste, such as, for example, in the long-established duty to mitigate damages.12 If sustainable development is about values, the prescription for the future should perhaps be less concerned with the law and more concerned with culture. Rather than run to the courts, or even our political leaders, to demand sustainable development, it is perhaps neces- sary for each of us to live the values of sustainable development and transmit those values to our neighbours and children. It would be fortunate if a generation from now, those following us could thank us not only for living our lives in a way that respects social and environmental values, but also for teaching them how to live that way as well.
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