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Bridging the divides

Former Justice Harry LaForme wins SOGIC Ally Award.

Retired Justice Harry LaForme, winner of the CBA's 2018 SOGIC Ally Award
Mark Blinch

Former Ontario Court of Appeal Justice Harry LaForme has always stood up for those who have suffered historical disadvantages, spending much of his life advocating on behalf of Indigenous peoples. As a member of the Eagle Clan of the Mississaugas of New Credit First Nation in Ontario, LaForme was born and raised on his reserve and knows firsthand what it’s like to be marginalized.

When he went to law school in the 1970s, there were only four Canadian Indigenous judges and his goal was to represent Indigenous issues, help to define them and move them forward. As he began to practise law, he realized the complexity of the issues and that “Indigenous people weren’t represented in the legal community.”

He later brought his experience as an Aboriginal person to the bench and to his decision-making, “because I had a life’s experience of growing up on a reserve, of being under the thumb of the Department of Indian Affairs.” He describes his younger life as being controlled by white people— the local Brantford Indian Agent and a faceless Ottawa bureaucrat—who “were responsible for conducting our lives.”

LaForme was appointed Commissioner of the Indian Commission of Ontario in 1989, then two years later he was appointed to chair the Indian Specific Claims Commission, also known as the Indian Claims Commission. In addition to chairing the two commissions and working as a lawyer, he taught the Rights of Indigenous Peoples law course at Osgoode Hall Law School in 1992 and 1993.

In 1994, he was appointed to the Ontario Court of Justice (General Division), then in 2004 to the Ontario Court of Appeal, becoming the first Indigenous person to serve on appellate court in the Commonwealth. He has also served as Commissioner of the Indian Commission of Ontario and as Chair of the Truth and Reconciliation Commission of Canada.

As a result of his work on behalf of others, Justice LaForme has received numerous honours and awards, including honorary doctorates in law and education, the Mayan Traditional Honour Medallion and the National Aboriginal Achievement Award in 1997. And on February 12, Justice LaForme will be given the Canadian Bar Association’s 2018 Sexual Orientation and Gender Identity Community (SOGIC) Ally Award, which recognizes excellence within the Canadian legal profession in advancing the cause of equality for lesbian, gay, bisexual, transgender and two-spirited people.

In nominating Justice LaForme for the Ally Award, OBA SOGIC Chair Hossein Moghtaderi of Hicks Morley Hamilton Stewart Storie LLP in Toronto points to his ongoing efforts to educate Canadians about the effects of marginalization and how they continue to benefit those who suffer from historical disadvantages. “His victories have furthered the rights of all Canadians who share experiences of oppression. It is through those efforts that Justice LaForme has cultivated understanding and bridged the divides across difference, from which all Canadians have benefited.”

Justice LaForme has been involved with important decisions for the LGBTQI2 community, but it was the groundbreaking 2002 Superior Court of Justice ruling in Halpern v. Canada that is “perhaps the most significant legal victory for Canada’s LGBTQI2 community in recent history,” says Moghtaderi.

In the Halpern same-sex marriage decision, Justice LaForme found that the common-law rule defining marriage as being the “lawful and voluntary union of one man and one woman to the exclusion of all others” violated the equality guarantees in s. 15 of the Charter.

“Drawing on his keen insight into and his lived experience of discrimination, Justice LaForme articulated the historical disadvantages and oppression suffered by Canada’s LGBTQI2 communities with sensitivity and compassion,” says Moghtaderi. “Specifically citing the historical treatment of Aboriginal peoples in Canada under the law, especially through the Indian Act, Justice LaForme found that there was no legal justification for the common law’s discriminatory distinction between same- and opposite-sex couple with respect to marriage.”

In Halpern, Justice LaForme did not accept that a legislative response to the issue was appropriate. “It is my firm opinion that there is absolutely no reason why the rights infringements that are in issue—and that have historically persisted for gays and lesbians—should continue any longer.” He quoted Martin Luther King: “We must use time creatively, in the knowledge that the time is always ripe to do right. …Now is the time to lift our national policy from the quicksand of injustice to the solid rock of human dignity.” The decision was upheld by the Ontario Court of Appeal and the Supreme Court.

Justice LaForme sees Halpern as “a big, big decision for our evolution as a just society. It’s one of the most important decisions of our time, I’m convinced of that.” He adds, “To me it may very well be a crowning achievement as a judge so that’s why it’s special to me.”

Although he’s “thrilled” to be honoured this way, he adds, “there’s a part of me that thought getting an award for that somehow strikes me as not something that we should be requiring or even be a reality at this stage of life, to be an ally of the gay, lesbian, LGBTQ community. I would have thought that everyone was. And there’s a bit of me that says people shouldn’t get rewarded for this; they should just do it. That should just be us.”

Many people have told him that it isn’t the decision itself that touches them so much, it’s the reasoning, its inclusivity and how sensitive and morally correct it was. “When you write decisions like that, you expose yourself to the world and you tell people, at least the way I wrote it, you tell people all over the world this is what I’m about, this is who I am. And not everybody likes that.”Justice LaForme retired from the bench last year, believing it was time to move on. Joining Olthuis Kleer Townshend LLP in Toronto as senior counsel, he’s closing the circle to act on Indigenous issues as he did before becoming a judge. It’s “almost surprising the distance that we’ve gone from when I started out to where it’s at today.” The issues are still alive, sensitive, challenging but more complex and after 25 years as a judge, he says his voice will be able to change as a lawyer. “You can be freer with your opinions and your views about where things need to go.”