A Quebec judge who has flown under the radar of the province’s legal community is a leading contender to fill a vacancy on the Supreme Court of Canada, with an announcement expected as early as Tuesday.
Justice Johanne Trudel of the Federal Court of Appeal, who has a reputation for rigour and thoroughness, is on the short list to be named to the nation’s highest court this week, says a source who is familiar with that list. If chosen, she would replace Justice Morris Fish, who retired on August 31.
Justice Trudel is not the woman who Quebec lawyers and academics were expecting. Many anticipated the appointment of Justice Marie-France Bich of the province’s Court of Appeal. Justice Bich, a former law professor at the University of Montreal, is widely respected for her prolific and scholarly judicial opinions.
There is pressure on Prime Minister Stephen Harper to appoint a woman to the country’s highest court. The number of women has fallen from four to three on his watch, after he replaced Justice Marie Deschamps of Quebec with Justice Richard Wagner last October.
The Federal Court is a specialized court that handles such matters as taxation, aboriginal law and national security. If Justice Trudel has been involved in controversial rulings in her time on the federal appeal court, law professors and lawyers contacted in Quebec and Ontario were not aware of them. In one ruling, she refused to grant Conrad Black an expedited hearing in his attempt to fight being stripped of his Order of Canada, saying that “the interests of justice and of other litigants” came first.
“She writes very clearly,” said Nathalie Des Rosiers, Dean of Common Law at the University of Ottawa law school. “She is a succinct writer. My recollection of her judgments is . . . a) labour law, fair to all sides, narrow in the sense of a judge who does not venture her opinion outside the confines of the case, a very prudent [quality] in the context of Federal Court of Appeal; b) income tax; and c) intellectual property.” She added that Justice Trudel is well-liked by her colleagues.
The Federal Court of Appeal’s narrow specialties in copyright or income tax law make it difficult to predict how she would decide cases at the Supreme Court level, Sébastien Grammond, Dean of Civil Law at the University of Ottawa, said. “Unless you’re a specialist in those fields, it’s difficult to say Justice Trudel is this sort of a judge or that sort of a judge.”
Justice Trudel, who grew up in Montreal, studied law at McGill University and practised municipal law before becoming lawyer for the City of Hull. In 1993, the Progressive Conservative government of Brian Mulroney named her to Quebec Superior Court, which gave her a wider background in civil and criminal law. Mr. Harper appointed her to the Federal Court of Appeal in 2007.
Justice Trudel, the daughter of a firefighter who died of lung cancer when she was 15, went to live with two of his sisters after his death and credits them for inspiring her to go to McGill. When she first became a judge, the Ottawa Citizen reported that she told her aunts, “If I could put all my success in a box, I would give it to you.”
There is some question about whether a Federal Court judge from Quebec can be appointed to the Supreme Court. Section 6 of the Supreme Court Act appears to exclude such a judge: “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.”
Legal experts say that if it is a roadblock, it will be overcome. Michel Morin, a law professor at the University of Montreal law faculty, said he can see “no obvious reason why Parliament would have intended to disqualify Federal Court Justices who have been members of the Quebec Bar for 10 years.”
Justice Minister Peter MacKay said in August that one of his first priorities would be to update the Supreme Court Act, because some provisions “could be interpreted as excluding federal judges from Supreme Court appointments.”
If chosen, Justice Trudel would have 15 years until the mandatory retirement age of 75.