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The Globe and Mail

Judge's departure continues Supreme Court's makeover

October 20, 2010: Supreme Court of Canada Justice Marie Deschamps jogs along the Ottawa River in Ottawa.

Dave Chan for Globe and Mail

A dramatic reshaping of the Supreme Court of Canada under Prime Minister Stephen Harper has taken another step forward with the announced retirement of Madam Justice Marie Deschamps.

The 59-year-old judge's imminent departure gives Mr. Harper his fifth opportunity to appoint someone to the nine-judge bench. With the other two Quebec judges on the Supreme Court scheduled to retire by 2014, Mr. Harper is rapidly putting an enduring stamp on the top court.

Judge Deschamps – a court centrist with expertise in the Quebec Civil Code – will step down 10 years to the day after she was appointed. While rumours had circulated recently that she was tiring of her heavy workload, Judge Deschamps' retirement announcement on Friday was a surprise in light of her relative youthfulness.

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By law, Quebec is guaranteed three seats on the Supreme Court. With Mr. Justice Morris Fish scheduled to retire next year, and Mr. Justice Louis LeBel facing mandatory retirement in 2014, the new appointee will quickly become the senior judge from the province.

This carries particular significance in light of a developing convention that the office of the chief justice rotates between French- and English-Canadian judges. When Chief Justice Beverley McLachlin retires, a Quebec judge will likely fill the office.

Tradition suggests that the new judge will be drawn from the Quebec Court of Appeal. The most prominent candidates are Madam Justice Marie-France Bich, Mr. Justice Pierre Dalphond, Chief Justice Nicole Duval-Hesler and Madam Justice France Thibault.

Judge Bich, a former grievance arbitrator and law professor at Université de Montreal, is widely respected for her knowledge of constitutional, administrative and labour law.

Judge Dalphond, a constitutional scholar with expertise in civil, business and administrative law, was elevated from Quebec Superior Court to the Court of Appeal in 2002. "He has a very strong intellect and sits on most of the important constitutional hearings," said Silvana Conte, a Montreal civil litigator. "He is perfectly bilingual and highly regarded."

However, Judge Dalphond's chances may be hampered by a former close association with the Liberal Party of Canada.

Another possible candidate – Mr. Justice Nicholas Kasirer of the Quebec Court of Appeal – is a former dean of law at McGill University. Highly educated and fluently bilingual, he has experience in family law and civil law.

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While practising lawyers are rarely appointed straight to the Supreme Court, leading candidates also include senior litigators Guy Pratte and Guy Du Pont.

Quebec Superior Court Judge Richard R. Wagner, the son of one-time Conservative Party stalwart Claude Wagner, is considered an experienced jurist whose political connections could prove valuable.

Judge Deschamps served on the Supreme Court of Canada, Quebec Court of Appeal and Quebec Superior Court.

"I feel privileged to have been given the opportunity to participate in the work of the court," she said on Friday. "After 37 years working mostly in courtrooms, including 22 years on the bench, I feel that it is time to explore other ways to be of service to society."

The Supreme Court appointment process has morphed in several directions recently. However, if Mr. Harper stays with the format he used in his two most recent appointments, an all-party committee will be asked to provide a short list of candidates. His appointee will be questioned by a parliamentary committee before being sworn in.

All four of the Prime Minister's previous appointees were viewed as meritorious, but relatively conservative when it came to activist decision-making and applying the Charter of Rights.

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The Prime Minister will again find himself being lobbied from all sides. He will be under particular pressure to maintain the complement of four female judges on the court. Aboriginal and minority communities have also grown increasingly restless waiting for the court's first non-white appointment.

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