A former university professor who is a respected expert in constitutional, administrative and labour law is emerging as a strong favourite for the next appointment to the Supreme Court of Canada.
Prime Minister Stephen Harper is expected to choose imminently from a list of three candidates that an all-party Parliamentary committee has prepared.
Two more Quebec vacancies will arise in the coming years, when Mr. Justice Morris Fish reaches mandatory retirement in 2013, and when Mr. Justice Louis LeBel retires in 2014. The two people not selected in this round are bound to figure prominently later.
Madam Justice Marie-France Bich, 56, of the Quebec Court of Appeal is widely seen as the leading contender for the nomination. A full-time law professor at the University of Montreal from 1983 until her 2004 appointment to the Quebec Court of Appeal, Judge Bich also presided over the Quebec bar association’s labour and employment law committee from 1997 to 2004. Choosing her would spare Mr. Harper the controversy of not replacing Madam Justice Marie Deschamps with a woman.
In interviews after she retired, Judge Deschamps created an expectation that her replacement will be female by endorsing the current gender composition of the court.
“He’s got two more openings coming up next year, so Mr. Harper might be wise to choose a woman right now to settle that issue right away,” a prominent Montreal lawyer observed.
Leading candidates include two other Quebec Court of Appeal jurists – Mr. Justice Nicholas Kasirer, 52, and Madam Justice France Thibault. A third judge on the court, Mr. Justice Pierre Dalphond, is seen as highly qualified, but handicapped by past associations with the Liberal Party.
Elevated from Quebec Superior Court to the Court of Appeal in 2002, Judge Dalphond, 54, “has a very strong intellect and sits on most of the important constitutional hearings,” said Silvana Conte, a Montreal litigator.
An early favourite for the job, the appeal court’s Chief Justice, Nicole Duval Hesler, is now considered less likely to go to the Supreme Court. At 67, she is said to be cool to the idea of moving to Ottawa to take on such a gruelling assignment. Moreover, she has barely settled into her new office after being elevated to the chief justice position less than a year ago.
Mr. Harper has appointed four of the nine judges on the Supreme Court, meaning that he is well on the way to refashioning the very bench that will ultimately rule on the legitimacy of several controversial aspects of his criminal law reform package.
The Prime Minister’s four previous appointees were known quantities: conservative jurists with no track record of writing decisions that expand the law into new areas or restrain the actions of legislators.
Legal observers expect that his next appointments will bear the same hallmark – a factor that could count against candidates such as Judge Kasirer, who is considered a progressive legal thinker.
At other levels of court, Quebec Court of Appeal's Mr. Justice Richard Wagner, 55, is considered a strong contender for the vacancy, as is Federal Court of Appeal Judge Robert Mainville.
While it is rare for Supreme Court appointees to come straight from the bar, the opportunity to pick three judges in quick succession could open the way for Mr. Harper to choose one of three litigators who have appeared often before the Supreme Court – Guy Pratte, Guy DuPont and Pierre Bienvenu.
The mechanics of gleaning feedback from top judges and bar associations has stretched the process close to the beginning of the court’s fall hearing session, on Oct.10.
“Work by the selection committee is ongoing,” said Julie Di Mambro, press secretary to Justice Minister Rob Nicholson. “An announcement will be made in due course.”
In light of a developing convention that the office of the chief justice rotates between French- and English-Canadian judges, one of the three Quebec appointments stands a good chance of replacing Chief Justice Beverley McLachlin when she retires.