News

One of the Supreme Court of Canada's most senior and prolific judges, Mr. Justice Michel Bastarache, shocked the legal world yesterday by announcing his impending retirement at the end of the court's spring session in June.

Chief Justice Beverley McLachlin praised Judge Bastarache in announcing his retirement, but gave no reason for the 59-year-old judge's decision to resign long before his mandatory retirement age of 75. Speculation quickly centred around his health, because Judge Bastarache reportedly had heart surgery to open a blocked artery last February.

"I don't know the reason for this, other than that he has not been sitting on some recent cases because of health problems," Philip Bryden, dean of law at the University of New Brunswick, said in an interview.

Dean Bryden said Judge Bastarache's sudden departure leaves a serious void on the court in his areas of specialty — administrative law, labour law, constitutional law and particularly minority language rights, "where he is world-renowned for his work."

At the same time, Judge Bastarache will not be missed within the criminal defence bar, where he was viewed as a law-and-order judge with little enthusiasm for upholding the rights of the accused.

Indeed, Judge Bastarache got into hot water in 2001 over an interview in which he expressed candid opinions about other judges and their motivations. While the Canadian Judicial Council later exonerated him of bias, it noted: "While your personal motives were laudable, some of your comments were of a nature that could be expected to cause controversy. It is clearly preferable for judges to exercise restraint when speaking publicly."

Appointed from the New Brunswick Court of Appeal in 1997, Judge Bastarache was a former law professor and CEO of a large corporation.

His retirement plunges the federal government into a search for a replacement from among the Atlantic provinces, which traditionally send one member to the Supreme Court bench.

It is also certain to renew heated debate over the way Supreme Court judges are chosen and vetted. Prime Minister Stephen Harper has little time in which to decide whether the government will again select a nominee and permit a parliamentary committee to question him or her — as happened two years ago, when Mr. Justice Marshall Rothstein was appointed to the court — or adopt an even more transparent process.

UNB law professor Ann LaForest predicted yesterday that the appointment process will be as intriguing as the actual selection. "I suspect the government will want a degree of accountability, but that Canadians do not have an appetite for a process like they have in the United States," she said.

Yesterday's resignation also marked the opening of legal gossip season in the Atlantic provinces. Since Judge Bastarache replaced another New Brunswick judge, Mr. Justice Gerard LaForest, there is a near-unanimous belief in the legal community that the next Supreme Court nominee is most unlikely to come from New Brunswick.

However, most observers added an important caveat: If the best candidates are clearly from New Brunswick, it would be wrong to pass them over.

Those mentioned most often yesterday to replace Judge Bastarache were New Brunswick Chief Justice Ernest Drapeau, and Mr. Justice Thomas Cromwell of the Nova Scotia Court of Appeal (former executive legal officer to then-chief justice Antonio Lamer of the Supreme Court of Canada).

Based on interviews with eight senior lawyers and academics yesterday, other early favourites include:

- Nova Scotia: Chief Justice Michael MacDonald and Mr. Justice Jamie Saunders.

- New Brunswick: Mr. Justice Joseph Robertson of the Court of Appeal, an expert in administrative law.

- Newfoundland: Madam Justice Gale Welsh, of the Court of Appeal, whose appointment would not just give the province its first Supreme Court judge, but would lead to the Supreme Court for the first time having a majority of women; Mr. Justice Leo Barry, of the provincial Supreme Court (trial division), one of the few judges in the province appointed by a Conservative government.

Chief Justice McLachlin said yesterday that she is hoping to have a replacement on the court by the time it begins its fall session in October.