Supreme Court of Canada Justice Morris Fish has announced that he will retire from the top court this spring, putting immediate pressure on Prime Minister Stephen Harper to restore the balance of female judges on the Supreme Court bench to four.
Only one of Mr. Harper’s five appointees to the nine-judge court has been a woman. Last fall, he again raised eyebrows by replacing Justice Marie Deschamps with Justice Richard Wagner.
No sooner had Justice Wagner taken the Quebec seat on the court than Judge Deschamps said it was imperative that the next person appointed be a woman: “Numbers do count,” she told The Globe and Mail in February. “I was sad that I was not replaced by a woman.”
Justice Fish’s departure will also deprive the court of its most defence-oriented judge just months before it is expected to begin hearing cases involving the legitimacy of several controversial aspects of Mr. Harper’s criminal-law reform package.
While Justice Fish’s vote counted as just one of nine, his vast knowledge of criminal law and his perspective on the defence side of cases was a powerful influence on debate within the court.
James Stribopoulos, associate dean of law at York University’s Osgoode Hall Law School, said that Justice Fish epitomized the best qualities of a judge. Justice Fish felt passionate concern for the plight of an individual who faces the might of the state, he said.
“He has many strengths as a jurist – a clear and pithy writing style, a razor-sharp intellect, a fidelity to logic and principle,” Prof. Stribopoulos said. “Most of all, however, is his humanity. In every context, but especially in criminal law, he was always very much aware and sensitive toward the stakes for everyone involved.”
Frank Addario, a veteran Toronto defence lawyer, said that Justice Fish made his mark on the court as a staunch defender of civil liberties. “He does not flinch, no matter how much law enforcement or government insists on a wider reach,” Mr. Addario said. “His combination of practical experience, intuition and legal ability made him a very unique judge.”
Justice Fish would have reached his mandatory retirement date on Nov. 16 – his 75th birthday.
To make the job of replacing him even more difficult, the Prime Minister must also face aboriginal and minority communities that have grown increasingly restless waiting for the court’s first non-white judge.
Those seen as leading contenders to replace Justice Fish include Madam Justice Marie-France Bich, Chief Justice Nicole Duval-Hesler and Madam Justice France Thibault, all of the Quebec Court of Appeal.
However, should Mr. Harper opt for another male – or if top female candidates decline to be considered – the list could include Quebec Court of Appeal justices Pierre Dalphond and Nicholas Kasirer; as well as two senior litigators, Guy Du Pont and Guy Pratte.
In announcing his retirement on Monday, Chief Justice Beverley McLachlin said: “Justice Fish has served on the court with wisdom, and made enormous contributions to the court and to Canada. He is a wonderful colleague and friend who will be greatly missed.”
Justice Fish expressed his gratitude for having been entrusted to hold judicial office for well over two decades.
“I am grateful to have enjoyed this privilege and mindful of the honour and public trust that attach to the holding of judicial office in Canada,” he said in a release.
One of the more colourful personalities to sit on the Supreme Court bench, Justice Fish was born in Montreal in 1938. He spent 11 years as a staff reporter and editorial writer for the Montreal Star before embarking on his criminal law career. He served on the Quebec Court of Appeal for 14 years and was elevated to the Supreme Court of Canada on Aug. 5, 2003.
If Mr. Harper stays with the format he used in his most recent appointments, an all-party committee will be asked to provide a short list of candidates prepared by the Department of Justice.
While all of Mr. Harper’s previous appointees were considered meritorious, they were also seen as relatively conservative when it came to activist decision-making and applying the Charter of Rights.
The third veteran Quebec judge on the court – Mr. Justice Louis LeBel – reaches his mandatory retirement date next year.
Each Quebec appointment has even more significance. 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 McLachlin when she retires.