So we are to have a new justice at the Supreme Court of Canada. Prime Minister Harper has clearly indicated that he is not happy with the choices available from Quebec courts so has named a justice directly from private legal practice. This is an unusual move and has not been done since Prime Minister Chrétien appointed Justice Binnie directly from the Toronto law firm McCarthy Tétrault in 1998. Justice Binnie retired in 2011.
Justice Binnie and Justice Sopinka before him, also appointed directly out of private practice, were known as strong judges. They were both litigators, or courtroom lawyers. They tended to be direct, clear and forthright. So, while it is unusual to appoint a Supreme Court of Canada judge directly from practice, past directly appointed judges have been highly regarded.
Justice Suzanne Côté promises to carry on the tradition of Justices Sopinka and Binnie. She is a veteran litigator, having practiced for 34 years. She has certainly not shied away from tough cases having been involved in the recent Canadian Judicial Council inquiry into the Lori Douglas affair, which only recently settled. Douglas was the lawyer whose husband posted nude photos of her. Côté also defended Imperial Tobacco in a class action suit. She will no doubt not shy away from tough decisions nor be swayed by other judges on the court.
Justice Côté replaces Justice Louis LeBel, who retires on November 30 at age 75. Justice LeBel was known as a defender of the rights of criminals. He had a keen legal mind and wrote strong, well-reasoned judgments. He was one of the few justices who clearly understood religious issues.
It is a requirement that there be three judges from Quebec on the Supreme Court of Canada because Quebec has a Civil Code. These judges are relied upon for their expertise on interpretations of the Civil Code.
This appointment comes at an interesting time. The Globe and Mail opened an article on November 27 with the comment, “The Supreme Court of Canada was remarkably united against the Conservative government in a year of unusually important rulings ...” This is from a court of nine judges where the Conservative government has named six of them to the highest court.
Also of interest is the Macdonald-Laurier Institute naming the Supreme Court “policy-maker of the year.” The Macdonald-Laurier Institute is an Ottawa-based think tank. Courts would generally be offended by the label “policy-maker.” Judges consider that they interpret the law and that it is the legislatures’ responsibility to make policy. Yet when the courts strike down all manner of legislation from recent laws setting minimum sentences to prostitution provisions that date back more than a century, when they set aside the appointment of a Conservative judicial appointment, Robert Nadon, when they rule against all government proposals to reform the Senate, it is clear that the Supreme Court of Canada is making policy. Moreover, it is making policy that is in opposition to the federal government.
It is no secret that the Chief Justice of the Supreme Court, Beverley McLachlin, has been having a tiff with the Prime Minister. It started over Mr. Harper’s previous appointment to the Supreme Court, the one that the Court had the final word on and set aside. The Chief Justice had put in a phone call to the Prime Minister’s office expressing concern but the Prime Minister did not return the call. He argued that it was inappropriate for the Chief Justice to interfere in a judicial appointment. That rift is still evident in that the Chief Justice did not follow protocol and deliver Justice LeBel’s resignation in person to the Prime Minister.
No doubt the challenges between the Court and the government has caused the current Conservative government to search long and hard for a judicial appointment that might bring a different perspective to the court. We probably won't have to wait long to see if Justice Côté brings that different perspective.
