Remembering the Honourable Mr. Justice Charles D

Remembering the Honourable Mr.
Justice Charles D. Gonthier
Martin J. Valasek*
I
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
Advisory 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 dedication 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 Quebec–in which Justice
*
Martin J. Valasek is a Partner at Ogilvy Renault LLP.
Reference re: the Secession of Quebec, [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385.
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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 meetings with the Judge, I came to know the man that others have quite rightly described as “a
perfect gentleman.” The obituary in the Globe and Mail praised Mr. Gonthier as “[a] scholar,
philosopher and original thinker, and a man of principle and integrity.” 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,” and “a nature deeply rooted in extraordinary simplicity and deep
humility, the sign of true greatness.”
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 desirable 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.
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.” 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. This is
an important insight into the limitations of the law as a tool for achieving the objectives of
sustainable development.
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>
Ibid.
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>.
Ibid., borrowing from the tribute delivered at his funeral by the Honourable Justice Claire
L’Heureux-Dubé.
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.
Charles D. Gonthier, “Law and Morality” (2003) 29 Queen’s L.J. 408 at 414.
See Gélinas, supra note 6 at 3-4.
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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.” 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 disputes. 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 community where there is respect for the needs of others and a respect for both present and
future generations.11
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.
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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 necessary 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. That would be a legacy worthy
of the great life lived and shared with us by Mr. Gonthier.
12
See ibid. It is worth asking whether this example, which indeed seems to suggest a concern for avoiding
economic waste, is illustrative of our broader legal culture regarding waste. In the Western legal tradition,
the right of ownership gives the owner three fundamental prerogatives: usus (the use of property), fructus
(the benefit of its fruits/income) and abusus (the right to alienate and even destroy the property). This is
a topic worth exploring in the pages of this Journal. Cf. Edward J. McCaffrey, “Must We Have the Right
to Waste?” in Steven Munzer, ed., New Essays in the Legal and Philosophical Theory of Property (Cambridge
University Press, 2000) (arguing against the continuance of the jus abutendi, or the right to destroy one’s
own property, from the perspective of a concern with depleting stores of nominally private capital).