Prime Minister Stephen Harper has chosen Clément Gascon, a widely respected, conservative-minded judge from the Quebec Court of Appeal, for a seat on the Supreme Court of Canada, capping an unprecedented and at times disastrous year-long search.
The government will not hold a public hearing for Justice Gascon, the second time in six years Mr. Harper has broken his promise to allow parliamentarians to ask questions of an appointee. The Prime Minister’s Office said it had promised to fill the position as quickly as possible and did not want to delay it; the appointment is effective next Monday. The job has been vacant since Morris Fish of Quebec retired at the end of August.
The appointment has been the most intensely watched in years; it was Mr. Harper’s chance to make up for the failure of his last one.
A Globe and Mail investigation found the Prime Minister bypassed most of Quebec’s top judges and lawyers, choosing four of his six candidates from the Federal Court in Ottawa, settling on Justice Marc Nadon – a semi-retired specialist in maritime law, known for his conservative views. Ultimately, the Supreme Court ruled him ineligible, and the Prime Minister later became embroiled in a public war of words with Chief Justice Beverley McLachlin.
Justice Gascon was not on the initial list of six candidates created by the Prime Minister’s Office last summer and given to an all-party selection panel. That omission may strengthen the conviction of some observers that the previous list was constructed to pull Justice Nadon through.
Justice Gascon, 54, could spend the next two decades on the Supreme Court; mandatory retirement age is 75. He spent the first two decades of his career specializing in commercial and civil litigation for Heenan Blaikie in Montreal before prime minister Jean Chrétien named him to the Quebec Superior Court, where he spent 10 years. Mr. Harper appointed him two years ago to the province’s highest court, the Court of Appeal.
Simon Potter, a Montreal lawyer and a past president of the Canadian Bar Association, said Justice Gascon is “known for his mind, a meticulous, thorough mind, a real intelligence, a Cartesian approach to things, which Quebeckers like. He writes beautifully.” Justice Gascon has led training sessions in judgment-writing for federal judges for the past six years.
Mr. Potter said many observers would be tempted to see Justice Gascon as deferential to government. “The people who see him on the deferential end will be corroborated in their view by the fact that he is very, very attached to the black-and-white way of looking at law. The expression dura lex sed lex has meaning for him: ‘the law is hard but it’s the law.’”
But it would be a mistake to pigeonhole him too narrowly, Mr. Potter suggested. In a recent criminal case, he was part of a unanimous ruling throwing out a conviction over a police violation of an accused person’s rights. He has been assigned complex class-action suits involving banks, and has ruled against banks, Sébastien Grammond, civil law dean at the University of Ottawa, said after a quick review of some rulings he had been involved in.
Sylvian Lussier, another Montreal lawyer, called it a “beautiful appointment,” and said Justice Gascon was a respected judge and lawyer who doesn’t lose sight of the practical effects of his rulings.
Quebec Justice Minister Stéphanie Vallée said she was pleased with the appointment. In a climbdown by the Canadian government, Ottawa had asked Quebec for a list of candidates. Ms. Vallée said she wants to see a similar process used in November, when Justice Louis LeBel of Quebec retires. The Conservative government bypassed the selection panel it had used in its previous six appointments.
Mr. Harper’s previous choice, Justice Nadon, ended in failure when the Supreme Court ruled that Federal Court judges are not eligible for any of its three seats reserved for Quebec judges. Earlier this spring, Mr. Harper accused Supreme Court Chief Justice Beverley McLachlin of trying to contact him in advance about that case, an accusation that the legal community across Canada called false and damaging.
In choosing Justice Gascon, Mr. Harper bypassed Justice Marie-France Bich of the Court of Appeal. She was the consensus choice of Quebec’s legal community. The appointment of Justice Gascon maintains the court’s complement of women at three, down one from its peak.
The PMO said Ottawa consulted broadly before making the Gascon appointment, including the Quebec government, the Chief Justice of Quebec, the Chief Justice of the Quebec Superior Court, the Canadian Bar Association and the Barreau du Québec.