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The Supreme Court of Canada building in Ottawa. (DAVE CHAN FOR THE GLOBE AND MAIL)
The Supreme Court of Canada building in Ottawa. (DAVE CHAN FOR THE GLOBE AND MAIL)

Legal affairs

Gender balance at issue with Supreme Court vacancy Add to ...

Prime ministers have been known to have something (or someone) up their sleeve as they choose a judge for the country’s most influential court.

Ever since Prime Minister Stephen Harper passed over several talented female candidates for a spot on the Supreme Court a year ago, many in Quebec’s legal community have been wondering if he would restore the court’s previous gender balance – probably with the scholarly Justice Marie-France Bich of the province’s Court of Appeal. But a Montreal lawyer says he hears from an insider that Mr. Harper has something unexpected in mind for the soon-to-be-filled vacancy.

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“Just watch out. There’s going to be a surprise,” he was told. Like others in this story, the lawyer asked that his name not be used so he could speak freely.

Handicapping the behind-the-scenes contest for a spot on the Supreme Court is difficult without understanding the web of political considerations and traditions that might shape the Prime Minister’s choice of a replacement for Justice Morris Fish of Quebec, a persistent advocate for the rights of the accused, who retired at the end of August.

This will be Mr. Harper’s sixth appointment to the nine-member Supreme Court of Canada. He will probably make the appointment within a couple of weeks, when the court’s fall session begins – unless he wants the formidable Chief Justice Beverley McLachlin on his back for leaving the court a body short.

By law, the appointment must be from Quebec to keep the court’s complement from that province at three.

Gender
The court’s high-water mark for women was four. Under Mr. Harper, it has slipped to three, prompting retired Supreme Court judge Marie Deschamps to express her disappointment publicly. Justice Bich, an expert in administrative law who writes frequently, and with gravitas, and knows civil law thoroughly, is considered a favourite. “Any third-year law student would tell you she’s a contender,” a Montreal lawyer said.

And she can’t be easily pigeonholed. “She’s a very intelligent judge who is likely to go further than the current Supreme Court in deferring to government agencies,” said Paul Daly, a University of Montreal law professor.

The Quebec bar is not necessarily expecting a woman. “Yes, it would send a positive message to have a woman,” a male lawyer said. “Do we want a woman? We want a good judge.”

Language
Anglophone judges have been few and far between from Quebec. When Justice Fish joined the court in 2004, there was a francophone judge from New Brunswick (Michel Bastarache) and another from Ontario (Louise Arbour). “Is there an anglo seat on the court? No, not really,” a Quebec law professor said. “Of the anglos, the best judge by far would be [Nicholas] Kasirer,” of the Quebec Court of Appeal. A lawyer described Justice Kasirer, a former McGill law dean, as a “perfect gentleman” and perfectly bilingual.

Geography
By tradition, one judge is from Quebec City and two from Montreal. Justice Louis LeBel, who reaches the retirement age of 75 in 2014, is from Quebec City. Most observers expect the current vacancy to be filled from Montreal. “Would you have two appointees from Ottawa and one from Toronto? How would Toronto react?” a Montreal lawyer said.

Crime agenda and constitutional leanings
Mr. Harper’s tough-on-crime agenda will be challenged at the Supreme Court. A law professor said, “All indications are that he likes small-c conservative types like [Richard] Wagner,” appointed to the court last October from Quebec. Many in Quebec place Yves-Marie Morissette, an appeal court judge who was the first francophone law dean at McGill University, on their shortlists of worthy candidates. A law professor described him as having conservative tendencies on criminal law.

Big-P politics
Pierre Dalphond is on many people’s shortlists, but he’s also a former president of the Liberal Party of Canada. Observers say it would be a large surprise indeed if Mr. Harper chose him. A Quebec law professor said it is difficult to be a federalist in Quebec and not have some connections to Liberals. He believes Mr. Harper is not worried about political connections unless they are too overt.

Eye out for a francophone Chief Justice
The tradition (not always followed) of alternating between anglophone and francophone is “grounded in something very important about the country,” McGill University law professor Shauna Van Praagh said. Chief Justice McLachlin is five years from mandatory retirement at 75. “If you are looking for a real surprise, try [appeal court judge] Guy Gagnon, former chief judge of the Quebec Court, a real leader who kept a fractious court functioning well, and who is universally admired as a person,” another law professor said.

Eye out for aboriginals, visible minorities
Lawyers and academics were stumped. “It’s not a very diverse bar. The judiciary is not diverse in Quebec,” a law professor said. Justice Robert Mainville of the Federal Court of Appeal practised and has written books on aboriginal law. The Harper government appointed him to the Federal Court in 2009 and to the appeal division just one year later.

So what (or who) might constitute a surprise? A male would be a surprise (though the previous gender balance could be restored when Justice LeBel retires). So would someone from outside the Quebec Court of Appeal. A newcomer to that court such as the highly regarded Justice Manon Savard, appointed in April, would be a surprise, as would a lawyer chosen straight from the bar – such as Guy Du Pont, Guy Pratte or Suzanne Côté.

Or perhaps if Mr. Harper appoints the favourite, Justice Bich, it would, after all the speculation, be a surprise.

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