"I don’t have any illusions that my work will endure forever. It has to get examined and re-examined and modified as we know more about different kinds of issues. And that’s the way it should be.”
The Honourable Frank Iacobucci was born to Italian immigrants and grew up in the East End of Vancouver. Though his parents were uneducated, they gave him the values that supported him throughout his career. At seventeen he was hired to work alongside his father in a steel foundry, and was told by the superintendent that if he was a fraction of the worker his father was he would be a success. Justice Iacobucci was indeed a success, though he followed a different path from his father. The money he earned at the steel foundry was put toward his education at the University of British Columbia, which in turn facilitated a distinguished legal career spanning private practice, academia, government and the judiciary.
After private practice in New York, Justice Iacobucci pursued an academic career at the University of Toronto, which included serving as Dean of the Faculty of Law from 1979 to 1983. In 1985, Justice Iacobucci was appointed Deputy Minister of Justice and Deputy Attorney General for Canada. He was subsequently appointed Chief Justice of the Federal Court of Canada in 1988, and served as a Justice of the Supreme Court of Canada from 1991 to 2004. After retiring from the bench, Justice Iacobucci served as interim President of the University of Toronto, after which he joined Torys LLP as Counsel.
Justice Iacobucci has acted for the Federal Government and the Ontario Government on a broad range of major issues, including serving as the federal negotiator for the Indian Residential Schools settlement, which ultimately resulted in the largest legal settlement in Canadian history to date. Justice Iacobucci has also been asked to conduct independent reviews for various organisations, including a recent report for the Chief of Police in Toronto on encounters of the police with people in crisis.
In July 2007, he was appointed a Companion in the Order of Canada and in 2009 received the Justice Medal for lifetime achievement from the Canadian Institute for the Administration of Justice. He has received numerous honorary degrees and recognitions in Canada, the United States, and Italy. He spoke with the Allard Law History Project in May 2016, a partial transcript from which is available below:
Considering your many accomplishments, I want to begin by asking whether you can recall any setbacks or disappointments that you faced either in law school or early on in your career.
Well life is full of peaks and valleys in my experience. I told my economics professor in statistics to whom I was a lab assistant that I wanted to be a lawyer. He said “you don’t want to be a lawyer; you don’t have the right name for it.” This was 1957. And so he said “well let’s go see John Deutsch.” John Deutsch later became Principal of Queen’s University. He was a great Canadian, a great public servant. He said very reflectively “well, Canada’s changing and if you want to go and study law you should go.” That experience was disquieting to me. Canada was generally not open to minorities, to women et cetera, neither was the United States in a number of areas, and neither were lots of other countries. But Deutsch said Canada was changing and he was right.
I was disappointed when I applied for a Rhodes scholarship, and the night before the interviews I found out that I was too old to meet the conditions for the scholarship. But that disappointment ended up in my going to Cambridge, not Oxford, where I met my wife, and that’s the most important development in my life, getting married to her. She was a lawyer, a distinguished graduate of the Harvard Law School, an American. We wanted to be in the same country, and I was refused like you wouldn’t believe applying to US law firms. Some of them hadn’t heard of British Columbia, some of them thought it was in South America. So it was a disappointment. Life is full of that, but fortunately I landed a job.
Why did you choose to do law?
The one thing that I can pinpoint happened when I was leaving grade six to go to junior high. They had a tradition of a little graduation ceremony; the principal would say a couple of words about each student. And about me he said “here’s Frank Iacobucci, he’s a great talker. He could be the next Angelo Branca.” I’d never heard of Angelo Branca. I thought he was a football player with the Hamilton Tiger-Cats, but I went home and asked my father if he’d ever heard of Angelo Branca. Angelo Branca was a very prominent criminal defence lawyer, later to become a judge, later to be on the Court of Appeal in BC. That was a reference point that registered in my mind and planted a seed which carried through when I went to University.
Did your commerce background help you in law school?
Not really. It did in the sense of not getting scared by accounting terminology such as capital, income, and depreciation, but I have to say that commerce was in its infancy in those days. It was really not the academic subject that it has become and that it is today. I think I would have been better off studying more of the humanities and the sciences.
What areas of law interested you most as a law student?
I really enjoyed private law. One of my friends said that after first year he noticed that I would always say “on the one hand and on the other hand”, and you know there’s a joke about the person who says I want to get a one armed lawyer so that he or she will not keep saying “on the one hand on the other hand”. But it taught me that the world isn’t black and white, that there were a lot of greys. We didn’t have the richness of the curriculum that you have today. It’s just unbelievable. We didn’t have that. We had maybe two electives.
What did you enjoy most about law school?
First of all we had a fantastic class. Every year can say that but I can say it with some pride and some evidence to bolster it. There were only three women, which was regrettable but that’s the way things were. But I enjoyed my classmates and I enjoyed studying law. You mentioned Lance Finch. I was in a study group with Lance Finch. We’re still close friends. Now I will say this, I was a bit of a joker in the class. I think it’s fair to say that maybe I was a clown. I couldn’t depart from having fun. Law school was a serious endeavour but I felt I needed and we needed comic relief. So there were pranks that would take place.
Can you give me an example?
One time just before exams we re-enacted someone stealing my notes, and I had a starter pistol. I yelled “Stop! Stop!”, going through the main reading room with a starter pistol. It made a huge noise and the guy sort of pretends he’s been hit by the gun. I got hauled in to see the Dean on that one, but I mean things like this were for comic relief. And I was a good student! I don’t want to seem like I wasn’t a good student.
You were appointed Deputy Minister of Justice shortly after the Charter came into effect. What were some of the government’s concerns at the time about the Charter and did you share those concerns?
I was appointed deputy in 1985. As you will know the equality section was postponed in coming into force. Governments looked at their legislation and tried to anticipate what might be problematic, so there was a report done on that. That concern of governments to be onside of the equality section was a challenge because there was no interpretation of the equality section. It was a time of both excitement and concern, because you didn’t know how the profession was prepared for the Charter, whether the judges were prepared for it and what its role would be in terms of the relationship between the legislative and executive branches and the courts. So it was a very exciting time.
How deep was the sense of uncertainty? Could you anticipate how its interpretation would develop?
Well the Charter was deliberately phrased in general terms to allow the living tree of the constitution, not the originalism of some people in the states – the Scalias and so on. That’s not our doctrine, our approach. So when I was there I was deputy at the time of some momentous decisions. The Morgentaler case, BC Motor Vehicle and so on, and the Oakes test. Brian Dickson once came to my office when I was dean of Toronto; he came to give some lectures, and he sort of was complaining about academics not writing enough about the Charter. Well I took up his challenge. The next morning I had all the articles and books from my colleagues from the last couple years on the coffee table, and said “this is what we’re doing.” And he sort of retracted a bit. But we were good friends. What was very interesting was that the contribution of academics to the understanding of the Charter was just immense. So the Charter in and of itself was an agent and an inspiration for research in all different directions, policy, empirical, doctrinal, and it spilled over into other areas. So it was an engine. And to witness all that was a great honour.
Aside from your time on the Supreme Court did you feel that you had more impact on the development of the Charter as an academic, as a judge or in government?
Very good question. I don’t want to answer it because it puts an emphasis on me. I was part of a team. I was part of a court. I think I was known as a consensus-builder in the court. I’m proud of that. I know I contributed in a number of areas, but I don’t have any illusions that my work will endure forever. It has to get examined and re-examined and modified as we know more about different kinds of issues. And that’s the way it should be. There’s no doubt of that. I mean I had some highlights: sitting on the Secession Reference for Quebec, being involved with same-sex issues and challenges, First Nations, aboriginal and indigenous issues, constitutional issues, the list goes on.
When did you find out that you were being considered for the Supreme Court?
Well the first thing I should say is that when I went to the Federal Court I had no idea about that, none whatsoever.
You got a call out of the blue?
I got a call. The vacancy of Chief Justice was open. I had been asked to recommend people as Deputy Minister. I didn’t practise in the court so I got some colleagues who did practise in the court and they formed a committee and they gave me some recommendations. I passed them on to the government through the Clerk of the Privy Council. And then three months or so later I got a call. I was in a meeting, my secretary came rushing down - “the Prime Minister wants to speak to you in five minutes” - so I went to my office and got three files out that I thought he might want to ask about, and then he asked, in a nice way, “would you like to go to the Federal Court as chief justice?”. I had no idea. So then I said I’d like to speak to my wife. And he said sure, call me back in the morning. So I went back and did it.
For the Supreme Court, in those days, my name was associated as a possibility, and I had some signs. The Chief Justice came down to speak with me. He wasn’t telling me anything but he said “I hope you will be thinking about it.” And so I knew a little bit about what to expect, but it’s never over until it’s over. Then I got a call from the Prime Minister.
You mentioned that you spoke to your wife after being asked to go to the bench. What was her reaction?
Well first of all it meant staying in Ottawa. That was a good thing for her because she liked Ottawa. She’s from a small town just north of Boston, so she likes a smaller community. She thought if I want to do it, I’m not going to get in your way, and that’s what she’s done. She’s been – supportive is an understatement. She was also very critical of my first judgements. She disagreed profoundly with one of them. Anyway she was happy being in Ottawa, and we stayed there for twenty years.
The appointment process is sometimes criticised for being fairly opaque. As someone who has been through it are you confident in the existing system?
Well I think the answer that I have always felt is that there can be improvements, but I don’t want the American system, and I do think that there should be more transparency in the process. I would not change who the appointing authority is, because I want the responsibility to be with the democratic leader. I don’t want authority to be hidden behind a committee that doesn’t bear the responsibility that a politician does in a democratic way. Politicians are responsible and many of them take these responsibilities very seriously. Some don’t - they appoint friends – but then we know that and that’s their legacy, that they didn’t attain the high standards that should exist. So I’m for keeping the same appointing authority, but make it more accountable and more transparent.
You were the first BC-educated jurist to be on the Supreme Court, and the first native-born British Columbian. How important is that landmark to you?
Well first of all being appointed is an honour. My education has stood me in good stead. I’m grateful to two universities: UBC for my education and I’m grateful to UofT for my career.
More generally how important is regional representation on the court?
Absolutely, fundamentally important. This is a federal country. We can’t have institutions that are just Central Canada. I feel that even though most of my career was in the east I still have an attachment that I owe this province for being born here, raised here and educated here. And that regional representation increases the legitimacy of the institution.
How can we best ensure a representative court not only in terms of regional representation but also representation of minorities, indigenous representation, gender representation et cetera?
Well I think I can say it’s happening. Chief Justice McLachlin is the first woman in that position, Justice Sopinka was the first ethnic minority member, I guess I was the second; an allophone as the French would say. Diversity has happened and it’s going to continue to happen and there will be an aboriginal justice on the Supreme Court in the near future. There are aboriginal judges who are really contributing across the country. Remember, the legal profession was not always an open profession. I was in that New York office – there were no Jews in the partnership, no women, no visible minorities. In some places the Irish were not welcome. Catholics were not welcome in Boston. Now that’s changed and it’s going to keep changing. We can’t go back, so we’ve got to move forward.
When you were working on high-profile, controversial cases, to what extent did public opinion enter your mind and potentially influence your decisions?
Well your focus has to be on the case before you and you cannot ignore what are the facts, what are the issues, and so on. You just can’t get into that public opinion mindset. Your mindset has to be what is the best legal outcome knowing what the facts are, what the issues are, what’s the precedent and what is the outcome that to the best of your ability should be reached. If you start considering public opinion I think that’s a dangerous, dangerous approach. What you hope for is applying all that you’ve learned, the constraints of decision making and the courage to take the right step and make the right decision as best you can judge it, and you hope that coincides with what the people would say about that. Sometimes it doesn’t, but it doesn’t mean it’s wrong if it doesn’t get that endorsement. Now if the courts are coming out with decisions constantly that are at odds with what the public sentiment is there’s no question that can create a question of legitimacy, but to start off doing something for the court of public opinion is dangerous.
Are you doing what you expected to do after leaving the bench?
Good question. I didn’t know what to expect. I wanted to keep active so I just hoped that I would have some interesting things to do. I mean I miss the court, but I don’t regret my decision. I felt I should leave too early rather than too late. I went to a very good law firm as a general counsel, and they support all the things I do. I’ve worked with some outstandingly good lawyers and young people that are much smarter than I am.
Looking back, can you point to one accomplishment in your life that you’re particularly proud of, perhaps even the most proud of?
I’d have to divide that question. I mean I’m very proud of my family, and I wouldn’t have done, virtually any of the stuff we’ve been talking about without my wife. I owe so much to her. So there’s a personal side and a professional side, and I wouldn’t want to talk about the professional side without mentioning the personal side. We have three kids and eight grandkids. On the professional side, every step of the way, whether it was in the academy or whether it was in the civil service as deputy minister, or on the bench there have been highlights, and they usually involve other people, not just myself. I’ve just been absolutely privileged, honoured, and grateful to have had that opportunity.
Do you have any general advice you’d like to give to people entering the legal profession?
Well, I think the legal profession occupies a very special place in our society. Men and women that I have seen, they work in the administration of justice, not just the lawyers but the staff and people in legal aid, people in NGOs, the people who work in the courts, the people who work in the public service, we’re very fortunate in this country, and you can find your dreams in so many areas through the law. And it all comes down to I think one basic idea, and that is helping other people, helping your fellow human being and finding your passion within that, and it can turn up in so many different areas. The law as an ideal I think is noble and inspirational.
Do you have any final thoughts you would like to add?
Well I just want to say that I have great pride in the law school. I think that it is an excellent place. It has gotten better with each year. The graduates – none of us would have gotten in probably today. I can say I’m grateful not only to the law school but also to the university, and its role and its contribution to Canada, not just to BC but to Canada, and the world beyond.