Globe and Mail

Arbour's UN duties put Supreme Court post in doubt

Ottawa comes under pressure to leave her in war-crimes job

Tuesday, April 27, 1999
Justice Reporter, The Globe and Mail

There is growing international pressure on Canada not to appoint Madam Justice Louise Arbour to the Supreme Court, allowing her to stay on as chief war-crimes prosecutor for the United Nations.

Federal government sources indicate Judge Arbour's stature on the war-crimes tribunal could make her indispensable on the world stage.

The development would seem to end the virtual lock most legal observers feel the 52-year-old Ontario Court of Appeal judge had on a forthcoming Supreme Court appointment.

The government is now giving close consideration to other leading candidates, most of whom, legal observers believe, are members of the Ontario appeal court.

With Mr. Justice Peter Cory retiring from the Supreme Court in June, a replacement is likely to be named before the end of the summer. Besides Judge Arbour, those cited most often as potential replacements include Madam Justice Rosalie Abella, Madam Justice Louise Charron, Mr. Justice John Laskin and Mr. Justice David Doherty.

The Lawyers Weekly added to the speculation this week.
It said some senior judges have sent discreet messages to Ottawa imploring Foreign Minister Lloyd Axworthy not to oppose Judge Arbour getting the nomination.

Should Canada prove unwilling to upset its allies by ending her four-year term prematurely, it could be a long wait before another vacancy comes up for her. Three spots on the court are traditionally allotted to Ontario, and the two incumbents -- Mr. Justice Frank Iacobucci and Mr. Justice Ian Binnie -- have many years left before their scheduled retirement.

However, some senior Ontario lawyers said yesterday it is still possible that Judge Arbour could be selected as a Quebec appointment in a couple of years.

"I would normally say it is far-fetched, but since it is important to have good women on the Supreme Court, that could make it a distinct possibility," said Clifford Lax, a prominent Toronto litigator.

"I say this without knowing who else in Quebec might merit consideration," Mr. Lax added. "It can also get into touchy political questions. But I don't think it is a crazy idea at all."

Born in Montreal, Judge Arbour studied law at the University of Montreal. After working as a law clerk in the Supreme Court, she taught at York University's Osgoode Hall Law School in Toronto before being appointed to the Ontario bench.

There will be Quebec vacancies in the near future, since Chief Justice Antonio Lamer and Madam Justice Claire L'Heureux-Dubé are quickly approaching their retirement dates.

While there has been considerable lobbying for a female appointee to replace Judge Cory, some observers feel strongly that the court needs a criminal-law specialist to replace Mr. Justice John Sopinka. Judge Sopinka took an ever-greater role in criminal cases before his sudden death 18 months ago.

Most of the Supreme Court judges have a background in civil litigation or academia, leaving Chief Justice Lamer as the only pure criminal-law expert.

Queen's University law professor Don Stuart said most of the cases before the court involve criminal law, and lawyers are infuriated when one decision contradicts another on points of law.

"I am getting more and more troubled by my impression that their criminal-law judgments -- no matter who writes them -- are not consistent," Prof. Stuart said. "A lot of trial judges have given up on their judgments."

Toronto criminal lawyer Earl Levy said that while there are hopeful signs that Judge Binnie may pick up Judge Sopinka's mantle, there is a general feeling in the criminal bar that a specialist is badly needed.

Judge Laskin and Judge Abella have always been considered strong front-runners; however, the focus within the legal community on Judge Doherty and Judge Charron has increased recently.

Prof. Stuart said most criminal lawyers look upon Judge Doherty as being the most knowledgable. Douglas Hunt, a former Ontario assistant deputy attorney-general, said Judge Doherty would have an immediate effect in reducing the number of dense, confusing or overcomplex judgments being issued by the court.

"I think David Doherty is the finest legal thinker and writer in Canada, bar none," Mr. Hunt said. "I think it is because he focuses on what is right -- and why."

Judge Doherty's best-known traits are a marked dislike of the press and a prickly courtroom manner. Prof. Stuart noted that some lawyers find him trying because his depth of knowledge places unusual demands on them.

Should the government reach beyond the appeal court, two judges from Ontario Superior Court (formerly called the General Division) -- Mr. Justice James MacPherson and Mr. Justice Robert Sharpe -- are often mentioned.

Each having worked at one time as executive officers to the Supreme Court chief justice, they have strong ties to the court. Both later became deans of major law schools, and have particular expertise in constitutional law.

Copyright © 1999 The Globe and Mail