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JUSTICE

Canada's bench strength: Meet the judges, new and old, of the Supreme Court

PHOTOS: SUPREME COURT OF CANADA COLLECTION; DAVE CHAN FOR THE GLOBE AND MAIL

When the Supreme Court of Canada begins a new session this week, it'll have only two judges with more than five years of experience on the nation's top court.

They'll also be one person short: the Prime Minister is still expected to pick a new judge soon to replace veteran jurist Thomas Cromwell.

Who is on the bench now, and how will they approach the weighty legal issues they have to tackle? Justice writer Sean Fine takes a look

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Michael Moldaver

Appointed by: Stephen Harper, 2011.

Role on the Supreme Court: Leading voice on criminal law, conservative but not ideological. Prolific writer of judgments. Thoughtful and passionate, committed to principle.

Notable cases

  • Majority: In his 4-3 ruling in R v Mackenzie (2013) a search-and-seizure case involving a veteran police officer and a sniffer dog, he wrote in typically blunt fashion that not every police move should be “placed under a scanning electron-microscope.”
  • Dissents: In a 6-3 majority ruling in R v Nur (2015), he wrote for the minority that the court should have respected the mandatory minimum sentence of three years for illegal gun possession: “It is not for this Court to frustrate the policy goals of our elected representatives, based on questionable assumptions or loose conjecture.” Also: Wrote the lone dissent in a 6-1 ruling in Reference re Supreme Court Act, 2014, in which he said he would have allowed Mr. Harper to appoint Federal Court Justice Marc Nadon to the Supreme Court.

Controversy: As an Ontario Court of Appeal judge, gave impassioned speech in which he complained about defence lawyers who "trivialize" the Charter of Rights and Freedoms with unnecessary rights claims, sometimes to line their own pockets.

Born: Dec. 23, 1947.

Law school: University of Toronto, 1971.

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Family background: Father was a scrap-metal dealer in Peterborough, Ont. Mother's father was Peterborough's first rabbi.

Personal: Self-deprecating and sees himself as anything but a heavyweight intellectual. "I learned more about dealing with a jury from working on road construction in the summers than I did in all the years of law school." Legal observers say he is able to cut through to the core of an issue very quickly; in his first year on the court, he became a force, writing eight majority rulings.

Legal background: Criminal defence lawyer who articled for G. Arthur Martin, the dean of Canadian criminal defence lawyers, and then joined a firm featuring leading figures such as Eddie Greenspan, Alan Gold and Marc Rosenberg. Became a judge in his early 40s and found it so stressful, he said, he put on 45 pounds.

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Andromache Karakatsanis

Appointed by: Stephen Harper, 2011.

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Role on the Supreme Court: Her background as the top civil servant under Ontario premier Mike Harris means she knows first-hand how policy is made. But she did not turn out to be the conservative many expected. A centrist, she finds herself to the left of most on the court.

Notable cases

  • Majority: Wrote in unanimous R. v Summers (2014) that the Harper government’s Truth in Sentencing Act should not deprive federal inmates of routine credit of 1.5 days for each day served in pretrial custody. The government had sought to limit credit in most cases to one day for each day served. The ruling had the effect of reducing the length of thousands of jail terms.
  • Dissent: In R. v Fearon (2014), 4-3 majority gave police the right to search cellphones without a warrant when making an arrest. She wrote for the minority that “it is difficult to conceive of a sphere of privacy more intensely personal – or indeed more pervasive –than that found in an individual’s personal digital device or computer.” Dissented with Justice Rosalie Abella in R v Saeed (2016), saying police have no right to forcibly swab a rape suspect’s genitals.

Legal background: Was deputy attorney-general of Ontario under James Flaherty. Mr. Harris, a Progressive Conservative, named her head of the civil service. Before that, Liberal premier David Peterson named her head of the Liquor Control Board of Ontario, and NDP premier Bob Rae named her assistant deputy attorney-general and secretary for native affairs. She was on the Ontario Court of Appeal for 18 months before joining the Supreme Court.

Born: Oct. 3, 1955

Law school: York University's Osgoode Hall Law School, 1980.

Family background: Parents owned a Greek restaurant in Toronto suburb of Don Mills. She waited on tables and managed the restaurant when her father was not there. As a child, "I felt like I had this special extra world. Greek music, Greek food, Greek values. We got to go to Greece occasionally in the summer."

Personal: Walls of her home feature her oil paintings – portraits and landscapes. She would like to paint full-time when she retires.

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Richard Wagner

Appointed by: Stephen Harper, 2012.

Role on the court: Voice of common sense, with deep background in civil law from long and varied litigation practice. Perceived as tough on crime when he joined the court, and has shown at times that he will defer to Parliament on crime control. But may yet surprise, and has shown his liberal impulses on a number of occasions.

Notable cases

  • Majority: In R v St-Cloud (2015), he wrote for a unanimous court upholding the controversial third ground for denying an accused person bail – to protect public confidence in the administration of justice.
  • Dissent: In Caron v Alberta (2015), he and Justice Suzanne Côté wrote for the minority in a 6-3 decision. The majority said Alberta has no constitutional obligation to translate its laws into French. The minority said that when Canada annexed the west in 1870, there was an agreement to protect legislative bilingualism.

Born: April 2, 1957.

Law school: University of Ottawa, 1979.

Family background: Father Claude Wagner was a lawyer, judge, Liberal justice minister of Quebec and federal Progressive Conservative MP and leadership aspirant. Once said: "Like Bécaud's song, my story is about a happy man." (Gilbert Bécaud was a popular singer from France.)

Legal background: Came to Mr. Harper's attention after his ruling at the Quebec Court of Appeal denying bail to a judge convicted of murder who was seeking freedom while he appealed the verdict. Told his parliamentary nomination hearing that he believes provincial appeal-court judges, too, should face public hearings, to preserve confidence in an independent judiciary. No government has taken him up on the idea.

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Rosalie Abella

Appointed by: Paul Martin, 2004.

Role on the Supreme Court: Voice for the underdog – refugees, religious minorities, women. Second longest-serving judge on the court, she is able to find a shifting set of allies to carry majorities – and is not afraid to stand out as a lone dissenter.

Notable cases

  • Majority: Wrote ruling for 6-3 majority in Wilson v Atomic Energy Canada (2016) giving non-unionized federally regulated workers similar job protection to that of unionized workers. In Kanthasamy v Canada (2015), she wrote the ruling for the 5-2 majority that made it easier for refugee claimants to stay in Canada on compassionate grounds. She wrote the court’s unanimous ruling this year in Daniels v Canada requiring the federal government to recognize the rights of Métis and non-status Indians, saying they have been living “in a jurisdictional wasteland.”
  • Dissent: In R v N.S. (2012), she was the only judge to say that a Muslim woman should be allowed to wear her niqab (face veil) in almost all circumstances when testifying in a criminal case. Called the majority ruling “Kafkaesque” in dissenting last year from a decision to order the extradition of a mother to the United States to face child-abduction charges although they had run to her from a violent father.

Born: July 1, 1946.

Law school: University of Toronto, 1970.

Family background: Only child of Holocaust survivors who has been named to Supreme Court. Father was a lawyer trained in Poland, but sold insurance in Canada. She was born in refugee camp in Stuttgart, Germany. "Who I am, what I am, what I believe in, and what I hope for, all started with the Holocaust."

Controversy: As head of a national commission on employment and minorities in 1984, she coined the term "employment equity" as a milder Canadian term for "affirmative action," and her report led to the current federal employment equity law.

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Beverley McLachlin

Appointed by: A Progressive Conservative prime minister, Brian Mulroney, named her to the Supreme Court in 1989. A Liberal prime minister, Jean Chrétien, named her the first female chief justice in 2000. She is now the country's longest-serving chief justice.

Role on the court: Leader in multiple realms of law, with a vision that cannot, after 26 years of prolific writing, be pinned down precisely, except to say she is always willing to strike down legislation when it offends what she believes are core Canadian values. A moral leader outside the court, declaring last year that the federal government had committed "cultural genocide" against aboriginal peoples. Has sought to fashion consensus and collegiality on the court. Very concerned that the court should fulfill what she sees as its proper institutional role.

Notable cases

  • Majority: In her early years, she became known for R. v Zundel, a 4-3 ruling in 1992 that struck down Canada’s false-news law in the prosecution of Holocaust denier Ernst Zundel, and R v Seaboyer, a 7-2 ruling in 1991 that struck down the federal rape-shield law barring all use of complainants’ medical records. More recently, she wrote the groundbreaking and unanimous aboriginal-rights ruling Tsilhqot’in Nation v. British Columbia, granting title to indigenous people over a chunk of the province more than half the size of Greater Vancouver. And in R v Bedford (2013) she wrote a unanimous ruling that not only struck down prostitution laws, but gave lower-court judges the power to take a fresh look at old cases where society has changed – ensuring that the Charter of Rights constantly renews the law.

Born: Sept. 7, 1943.

Law school: University of Alberta, 1968. Took her master's in philosophy at the same time.

Family background: Grew up in Pincher Creek, Alta., on a farm. A widowed mother of one, she remarried after accepting a proposal on an airplane on her way to a legal conference.

Legal background: Third woman on the Supreme Court after Bertha Wilson and Claire L'Heureux-Dubé, but the first who says she was not held back by discrimination. After a brief period as a lawyer, she was a law professor at the University of British Columbia, then a judge whose love of the law propelled her at a dizzying pace through the courts.

Controversy: Prime minister Stephen Harper said publicly that Chief Justice McLachlin acted inappropriately in trying to contact justice minister Peter MacKay about a case – a reference to a hearing on whether Supreme Court appointee Marc Nadon was legally qualified. The Chief Justice responded publicly, saying her contacts with the justice minister's office occurred two months before Justice Nadon was chosen, and she was simply flagging a possible constitutional issue.

Personal: Used to leave the courthouse for a run in her early days on the court.

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Russell Brown

Appointed by: Stephen Harper, 2015.

Role on the court: An unofficial opposition to the court's broad, liberal approach to the Charter of Rights. Has the intellectual gifts, the writing power and wide-ranging expertise to be noticed, although it remains to be seen whether he will bring other judges along with his views, now or over time.

Controversy: Described Justin Trudeau as "unspeakably awful" in a blog when he was a professor at the University of Alberta. Also on the blog, published between 2007 and 2012, he mocked the Canadian Bar Association, which represents the country's lawyers, as a left-wing, anti-Conservative Party group – and wondered whether Chief Justice Beverley McLachlin shared the bias.

Notable cases

  • Dissent: In Wilson v Atomic Energy Canada in 2016, he wrote for the three dissenting judges that non-unionized workers in the federally regulated sector are not legally entitled to job protection similar to that of unionized workers. “A dismissal without cause is not per-se unjust, as long as adequate notice is provided.” Has cautioned in a case involving retroactive increases in punishment of pedophiles that the court should not hold Parliament “to an exacting standard of proof,” but instead give it room to address a chronic social problem. Has already written rulings in tax, trade, criminal, labour and constitutional law.

Born: Sept. 15, 1965.

Law school: Bachelor of laws from University of Victoria in 1994, and from the University of Toronto, a Master of Laws in 2003 and a Doctor of Juridical Science in 2006.

Personal: Likes to hike and canoe with his children.

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Clément Gascon

Appointed by: Stephen Harper, 2014.

Role on the court: Has not been on the court long enough to yet what his influence will be, but some predict he will do the heavy lifting with complicated, technical subjects, especially in what is known as private law (cases between individuals or institutions in which government is not involved) akin to Marshall Rothstein, who retired last year. Quebec observers say he is a gifted writer.

Notable cases

  • Majority: In Mouvement Laïque Québécois v. Saguenay, he wrote for a unanimous court that a municipal council could not hold a public Christian prayer session before its meetings. “Sponsorship of one religious tradition by the state in breach of its duty of neutrality amounts to discrimination against all other such traditions,” he wrote. Also, in Caron v Alberta (2015), he was the only Quebec judge on the court to say Alberta was not constitutionally obliged to translate its laws into French.
  • Dissent: In R. v Lacasse (2015), he wrote in dissent that a sentence of 6 1/2 years for a youthful drunk driver who killed his two passengers in an accident was too severe. “A person cannot be made to suffer a disproportionate punishment simply to send a message to discourage others from offending.” The ruling was 5-2; only Chief Justice Beverley McLachlin agreed with him.

Born: Feb. 5, 1960.

Law school: McGill University, 1981.

Legal background: Like the other two Quebec judges, was called to the bar in the early 1980s and practised commercial and civil litigation at a large law firm in Montreal. As a judge, he is conservative in the sense that he is not someone seeking to break new ground with the Constitution. A senior Montreal litigation lawyer described him this way: "You're going to go before him and have 100-per-cent conviction that whatever he thinks the law is is what he is going to do, regardless of what his personal beliefs might be. He's not out there creating law. There are some judges who believe their role is to do justice and others believe it's to apply the law. He's much more of an apply-the-law type."

Controversy: When Stephen Harper could not find a judge to appoint from Quebec after the Supreme Court disallowed the appointment of Marc Nadon, the court was one judge short for 10 months – and then Mr. Harper chose Justice Gascon.

Personal: Married to a Quebec judge and with three children, he is "a deeply committed family man; that's something that certainly would define him as a person," according to a Montreal lawyer who knows him.

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Suzanne Côté

Appointed by: Stephen Harper, 2014.

Role on the court: Too soon to say. One observer sees her as pro-business, from her long years representing the rich and powerful. Another said: "Rather than say 'pro-business,' I would say she would be very sensitive to the business aspects of cases, of the business repercussions and the business reality behind the case." Assertive, unafraid to stand alone (dissenting even on a leave to appeal application, where dissents are uncommon). "She's her own person," a Montreal litigator said.

Notable cases

  • Dissent: As lone dissenter in Saskatchewan v Lemare Lake Logging (2015), a bankruptcy case in which a creditor tried to collect from a farmer, she wrote that a provincial law made the bankruptcy process too time-consuming, frustrating the purpose of federal bankruptcy law; the relevant sections should therefore be struck down. The majority said the two laws should be permitted to work together.

Legal background: First female Supreme Court judge appointed straight from the practice of law. Began in small French-language practice in the Gaspé, and through her tenacity and charm reached heights in bilingual practice as the best-known female litigator in Montreal. (Three Montreal litigators used the word "tenacious" to describe her in interviews with The Globe.) Lots of powerful clients: defended big tobacco in class-action lawsuit; represented Jean Pelletier, former chief of staff to Jean Chrétien, when he was fired as Via Rail chairman; and acted for Quebec during an inquiry into political influence in the appointment of judges.

Controversy: Tried to claim $50,000 a year in clothing expenses from 2004 to 2006 as a tax deduction, and fought the Quebec tax agency in court. Also served as independent counsel in a discipline hearing that led to the resignation of Manitoba judge Lori Douglas over nude photos that circulated through no fault of her own. More than 350 law students, lawyers and professors accused her of demeaning the judge.

Born: Sept. 21, 1958.

Law school: Laval University, called to Quebec bar in 1981.

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