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Lawyer Suzanne Cote has been appointed to fill a vacancy on the bench of the Supreme Court of Canada. (Jacques Boissinot/THE CANADIAN PRESS)
Lawyer Suzanne Cote has been appointed to fill a vacancy on the bench of the Supreme Court of Canada. (Jacques Boissinot/THE CANADIAN PRESS)

New Supreme Court judge challenged on conduct as a lawyer in two cases Add to ...

The newest judge on the Supreme Court of Canada is facing questions about her conduct as a lawyer in two cases. But Prime Minister Stephen Harper’s decision to drop public hearings in which legislators ask questions of new judges means the opportunity to scrutinize the story of Suzanne Côté of Montreal is at an end.

In a letter signed by more than 350 law students, lawyers and professors from several provinces, Justice Côté is accused of demeaning a Manitoba judge and contributing to her decision to resign from the bench. Separately, she is accused of dragging out a lawsuit, now at 16 years and counting, as part of a legal team representing Imperial Tobacco. Justice Côté, 56, who was sworn in this week, is the first female lawyer appointed to the court straight from private practice.

The suspension of the parliamentary hearings is the latest fallout from Mr. Harper’s botched Supreme Court appointment last fall of Justice Marc Nadon. The Supreme Court ruled Justice Nadon ineligible, and sat for 10 months short one judge. In May, The Globe and Mail revealed three other candidates on the government’s secret list of six candidates were also ineligible. Citing that report, the government suspended parliamentary involvement in a committee that screened the judges on the government list, and shut down the public hearings. Ms. Côté is the second judge in six months named to the court in a closed process.

Justice Côté said through a Supreme Court spokesman that she has no comment.

In a $28-billion class-action lawsuit filed in Quebec against three multinational tobacco companies, lawyers for addicted and ill smokers argue in their closing submissions that Imperial Tobacco used “abuse of process as strategy.” In court documents, they allege the abuse is “manifest in virtually every aspect of the defendants’ handling of the files” since 1998, including launching “countless proceedings and appeals” without legal justification. (The submissions do not criticize Ms. Côté by name.)

“It’s a good question: When is it the client and when is it the lawyer?” said Douglas Lennox, who represents consumers in a separate class-action lawsuit against Imperial Tobacco in British Columbia. “At what point is a lawyer supposed to say to a client, ‘I have an ethical obligation; there are things I just can’t do’? We don’t get to have that discussion.”

He said he is not criticizing Justice Côté, who may turn out to be an excellent judge, but added, “It is too bad that the Prime Minister did not provide her with a parliamentary hearing to help introduce herself to Canadians. Such hearings provide democratic transparency, and they may be a benefit to prospective appointees. Furthermore, they may draw attention to important issues in the administration of our justice system. In particular, lawsuits are taking too long to resolve, and they cost too much.”

Deborah Glendinning, a lawyer representing Imperial Tobacco, said the allegations are baseless; that they are lodged at Imperial, not its lawyers; that Ms. Côté did not join the Imperial trial team until 2010, and that “at no time has there been any complaint about her conduct whatsoever as she exemplifies at all times the highest of professional and ethical standards.”

The accusation of demeaning a judge is made in a letter to the Canadian Judicial Council protesting the council’s handling of a disciplinary matter involving Manitoba judge Lori Douglas, whose nude photos have circulated on the Internet. Ms. Côté served for the past year as independent counsel to a committee set up by the CJC to review Justice Douglas’s conduct. In that role, Ms. Côté pushed for the photos to be made available as evidence to the 17 members of the judicial council. (The photos were to have been sealed from public view.)

The letter, which does not mention Ms. Côté by name, says her insistence on making the photos available was “callous and gratuitous. Not only would it have re-traumatized the Justice, it could elicit no information relevant to the issues at hand.”

The letter said the judicial council’s inquiry was based on the discriminatory and irrational notion that nude photos taken in private, and consensually, would affect a judge’s ability to rule impartially on cases.

Justice Douglas’s late husband posted the photos on the Internet without her knowledge, and the CJC was attempting to determine whether she failed to disclose the existence of the photos prior to becoming a judge. When she resigned last week after reaching a deal with the CJC to stay the charges against her, her lawyer said that to “risk the viewing of her intimate images by colleagues and others is more than she can bear.”

Esther Mendelsohn, a second-year student at Osgoode Hall Law School in Toronto who spearheaded the letter, said in an interview she did not wish to make the issue about Justice Côté.

“I may take issue with decisions, but not individuals.”

Norman Sabourin, executive director of the Canadian Judicial Council, said “I hate to say something like this, it’s not my style, but a second-year law student saying one of the most esteemed lawyers in Canada didn’t do things the way she should have is something I reject entirely.

“ Those are pretty strong words – ‘callous and gratuitous’ – and I’m not sure on what that opinion is based.”

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