National Post

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Friday, June 11, 1999

Arbour takes more than star status to Supreme Court
Experienced jurist is not afraid to use the law to lead

Marina Jimenez, with files from Luiza Chwialkowska
National Post

The appointment of Justice Louise Arbour to the Supreme Court of Canada tips the gender balance of the court, and adds a liberal-leaning, aggressive jurist with an international profile and a star stature to the bench.

The a 52-year-old francophone from Ontario is a criminal law specialist who is known as a strong defender of the Charter of Rights and Freedoms, someone who is willing to use the law to lead.

"She will take a strong position on the Charter, and she will glory in the role," said Peter McCormick, a court watcher and a professor of political science at the University of Lethbridge. "She has a strong, intellectual forcefulness."

The Appointment of Judge Arbour restores the gender balance of the court -- three female judges and six male -- that was upset with the retirement of Justice Bertha Wilson in 1990. Although Anne McLellan, the Justice Minister, played down the importance of gender, noting that merit alone drove the appointment, Judge Arbour will improve the court's representativeness.

She is bilingual, and brings expertise in English common law, the Quebec Civil Code and international criminal law.

"Her international experience gives her credibility and adds to the court's legitimacy as an independent institution which will be especially important in the next few years if we face another national unity crisis," said Patrick Monahan, law professor at Osgoode Hall Law School. "The court might be called upon to play some role in that discussion and having someone of her stature and importance will be very important for the country."

Judge Arbour's background and career path resemble that of Justice Peter Cory, who retired last month, and whom she is replacing. Both have experience in criminal law and evidence, and served on the Ontario Court of Appeal. Judge Arbour is also close to Chief Justice Antonio Lamer, a mentor to her in the 1960s when he taught her criminal law.

Judge Arbour, widely praised for her work as head of the United Nations War Crimes Tribunal, is expected to fit in well with the current court. She has frequently been a dissenter in Ontario Court of Appeal rulings that have been reversed by the Supreme Court, and is a natural fit for what some describe as the court's activist-phase, modern style of judicial decision-making, and willingness to go beyond the written text of the Charter and other laws to interpret their purposes and intentions.

Judge Arbour is known for defending the rights of the accused, and in 1993 she ordered a new trial for a man accused of robbery, taking issue with the trial judge for accepting a confession without giving any reasons. In 1996, she delivered a strongly-worded report on human rights for female prisoners, after an inquiry into the strip-searching of women at Kingston Prison for Women.

She is also willing to push the frontiers of case law and jurisprudence, and is not afraid to sue the Charter to this end. In Eaton v. Brant County Board of Education, a case involving the rights of a disabled child that was before the Ontario Court of Appeal in 1995, she used the equality section of the Charter to strike down a provision in the provincial Education Act that allowed schools to segregate disabled students.

In 1991, while on the bench of the Ontario Supreme Court, Judge Arbour also used the Charter's equality section in a case called Alain Leroux v. Co-operators General Insurance Co., involving a 17-year-old man's right to insurance. She ruled that the man should not be denied insurance benefits under his mother's policy because his parents never married, and that marital status should be included in the Charter.

In 1992, she gave prisoners the right to vote in a judgment that struck down a section of the Canada Elections Act as a violation of the Charter -- a ruling upheld by the Supreme Court of Canada.

"She can be expected to take a strong stand in favour of the Charter, and I believe that is a good thing," said Prof. Monahan. "The courts ought to be forcing governments to justify infringements of the law."

Yet Judge Arbour cannot be typecast, and is not always predictable. In 1987, she argued in Regina v. Seaboyer and Gayme on behalf of the Canadian Civil Liberties Association that a man charged with rape should be permitted to expose the sexual history of his accuser. The reasoning angered feminists and suggested she was not a strict idealogue.

"Judge Arbour may challenge the title on the court for the most aggressive use of the Charter," said Prof. McCormick. "But I think Justice Claire L'Heureux-Dube will remain the feminist on the bench."

Peter Hogg, the dean of Osgoode Hall Law School where Judge Arbour taught for 17 years, believes her decisions will not follow a pre-determined course. "She will proceed on the basis of what is fair in a particular case," he said. "She is not an ideological person."

Her charm, openness and ability to solve problems will also be assets. "She is the person who can see through the maze and create compromise," says Toronto lawyer Brian Greenspan, a friend and colleague. "I think she will be a unifying force on the Supreme Court. She will bring people together."

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