November 21, 2014
Ottawa Law Review [OLR]: What initially inspired you to study law?
Louise Arbour [LA]: Nothing, in short. I was raised here in Montreal and I went to a classical college. In fact, when I started there it was a girls' convent school. (1) So I have a BA with a classical background, and what you did after that, at least what women typically did since I was in an all-girls school until after I finished my BA, was either medicine, law--I don't think anybody ever thought of engineering--and some would do a graduate degree in history or literature and then go and teach. So the avenues were very narrow. I didn't know any lawyers or judges, there were none in my family, and I had no idea what law was really about. But I had eliminated all the other options and so I went into law very much by default, thinking of it as a continuation of my general education with what I thought at the time may lead to a career in either journalism or politics. And then by Christmas of first-year, I knew it was really for me--I thought law was just a perfect fit. And I had done much better in law school than I had done in undergrad. It was a miracle they even accepted me--in those days they were not very discriminating. I was always a good student, but not fabulous, and I was no longer very interested in the girls school environment when I graduated. But law school, no question, it was made for me.
OLR: After law school (2) you went on to clerk for Justice Louis-Philippe Pigeon at the Supreme Court of Canada. (3) We'd like to hear about your clerking experience, starting with what the hiring process was like for clerks at the time.
LA: It was actually quite interesting. First of all, I had heard about it from I think a poster in the bar admission course and somebody had told me that a guy named Gerald Tremblay (4) had done it and I think I spoke with him about his experience. I had never been to Ottawa and in fact hadn't had much contact with English Canada in those days. I had been to France a couple of time but never much west of Quebec. And I had made applications to do graduate work in a couple of places and somebody said to me, "Well, clerking is like graduate work except it pays, instead of you paying," which was a major attraction. So back then you would send an application to the Chief Justice, not to individual judges, and then you just waited to see if anybody called. And in those days for some peculiar reason, the three Quebec judges (5) would only take people who were already called to the bar, while all the other judges from other provinces took students straight out of law school. They had some kind of notion--I think mostly the Chief Justice (6)--that you had to have been sworn to the bar or something, I don't know. So I applied after I finished my bar admission course and I received a call from Justice Pigeon. So I borrowed a car and, I'll never forget, I drove to Ottawa and I thought "no way," I hadn't given it very serious thought as I had a couple of acceptances for graduate work. So I drove there, I got to the court and nobody spoke French--so I didn't think that was looking too good. And then when I got to the interview with Justice Pigeon, he spoke to me entirely in French, and only at the end I think he said something like, "How is your English?," and I said, "Good," which was not the truth. And then he said, "Well I d like to offer you the position." So I said to him, "Well I have to think about it." And he was not pleased. He said, "Well you applied" and I said, "Yes--but," and he interrupts and said, "You thought you never had a chance." And I said, "Well, yes that's true." And then he made his first mistake--he said, "Because you're a woman." And I thought oh man he hasn't figured out I don't really speak English! And then he went on and explained to me at length that he had been instrumental in the reform of the Quebec Civil Code (7) dealing with the status of married women and that given equal competencies he would always give a chance to a woman. I thought this was so cool. I said, "Okay then I'll come." So there I went.
OLR: Can you describe your experience clerking at the Supreme Court of Canada?
LA: It was fantastic. First of all, there were just nine of us and we were in this room--in those days just in front of the library--and it had on top of the door that led to the library nine Christmas-like lights, and when your judge wanted you, your light went on. So wed all be in the same room with a big black telephone and sometimes you'd be reading something and someone would say, "Hey, Louise --ta lumiere est allumee," and you'd have to put your jacket on and rush down to see the judge. Now you have to imagine, in those days, there was an automatic right of appeal for all cases over just $10,000. (8) So there were very few motions for leave to appeal, because virtually everything was appealable as of right, although there were still some things that you needed leave for. So, there was a little courtroom--it's now the judges' dining room--for the motions that were argued on I think Monday morning, and the caseload was huge, with a significant backlog. The list went from Ontario, Maritimes, West and so on, and we never got beyond the backlog. So you had to fish out the good cases out of this massive non-descript pile. Justice Pigeon, when he interviewed me, asked me what areas of law interested me and I told him criminal law, administrative law, constitutional law--all public law. And he said, "Well that's very interesting because I will not require your services in these areas because since you're interested I take it you will keep up your interest." He said, "You have to understand you're not here to help me, I'm here to help you continue your education, and therefore, I will try to develop your skills in other fields." So the first case he gave me was under the Canada Shipping Act, (9) which of course I didn't find very interesting. Oh, and we would do memos handwritten, typed by a legal secretary, with a carbon copy--oh my god--it was quite antique!
OLR: Did you always agree with Justice Pigeon's decisions?
LA: Almost never. And he didn't seem to care. And he was not very keen to discuss. I would write him something with my opinion, certainly in criminal cases, all the areas that I liked, and, under the Canadian Bill of Rights, (10) he had a very conservative interpretation. Fortunately, Justice Bora Laskin (11) was there. He was a junior judge at the time, so I liked him. Justice Pigeon was a wonderful man and I remained in touch with him subsequently, but in terms of the substance of the work, our opinions would often differ. I remember one day there was an appeal that I worked on and I sent him a note and I said, "I don't think the court has jurisdiction," because it was an insurance claim and there were 12 individual claimants, each one of whom who had a claim under the $10,000 limit, so collectively, the case looked like a $60,000. So I wrote to him and I said, "I looked at the Supreme Court Act, (12) and I'm really concerned that there's no jurisdiction here, they should have asked for leave." And I was very keen to see what he would say, so I asked him, "So what do you think?" And he just sort of smiled and didn't say anything. So he goes into court, I'm in the courtroom, the appellant stands up, and before the appellant can open his mouth, Justice Pigeon--who was feared by all litigants, he had a formidable voice--said, "Counsel, can you explain to me on what basis we have jurisdiction?" And the guy had no idea what he was talking about, and I kept thinking, "Just tell him you're going to ask for leave!" And so the appellant was devastated and I think Justice Pigeon dismissed the whole thing. And so afterwards I went to go see him and I said, "Had you noticed that yourself or ... ?" and he wouldn't tell me, which I thought was very mean.
OLR: Do you think Justice Pigeon influenced you as judge? (13)
LA: Well it's difficult to say whether it was Justice Pigeon or just being at the court. For me, the whole clerking experience was a very big thing. First of all, I worked in French with Justice Pigeon but the entire environment was English and it was the first time in my life that I really had to work in English. And, during that year, I also did my Master's courses at the University of Ottawa. I never wrote the thesis, but I took five courses at night during that year, because when I moved there I thought, "I don't know anybody in Ottawa and I won't have anything to do," looking back I don't know what I was thinking. But, anyway, I was very busy, and the whole year was very important for me, so it's hard to tell how much of that was Justice Pigeon. Justice Pigeon was a very, very rigorous man. His great specialty was statutory interpretation, on which he wrote what was then the reference book. I didn't know that area of law very well, so he drew me into that. And Justice Pigeon was very patient with me. When he decided I had to learn something, he would walk me into the library and show me. It was a great experience--scary--but great.
OLR: What were your fellow law clerks like? Were there many women?
LA: There was one other woman, she was also from Quebec, but we didn't see very much of her. She was married and I didn't know her very well. As for the others, one of them became the father of my children--so I knew him quite well. He's no longer a part of my life, but he was for 30 years and that in fact triggered my staying 12 13 in Ontario, teaching at Osgoode and so forth. And I've stayed in touch with several other people I clerked with. When we have law clerk reunions, I see them and, although there are a few with whom I've lost contact, it was a fantastic group; we were all very close. I remember at lunchtime the only place to eat near the Court was the basement at some place I think on Sparks Street. It was a pool hall, it was very big, and it had some 20...