Ottawa Citizen
Friday, August 09, 2002

PM leaves lasting mark on Canada's top court

Chrétien has now appointed a majority of the justices whose rulings will shape history for decades to come

Janice Tibbetts
The Ottawa Citizen

The Supreme Court of Canada is now the court of Jean Chrétien.

With his latest appointment, the prime minister has now named the majority of judges on the influential court, a legacy that is expected to last long after his retirement.

Mr. Chrétien surprised legal pundits yesterday, by hand-picking Justice Marie Deschamps, a little-known Quebec appelate judge, ahead of more heralded candidates to fill a vacancy on the court.

Mr. Chrétien, who spent his first term in office under the court of former prime minister Brian Mulroney, has changed the face of the nine-member bench by appointing five judges in the past five years.

Mr. Chrétien also named Chief Justice Beverley McLachlin to replace Antonio Lamer when he retired in 2000.

Mr. Chrétien's overhaul could be precedent-setting for decades, if not centuries, to come, given the impact the judges have on the most pressing issues, ranging from minority rights to religious freedom and child pornography laws.

"It is enormously important," said Simon Potter, the vice-president of the Canadian Bar Association.

It's the Supreme Court of Canada, for example, that could well be the ultimate arbiter in the debate over whether gays and lesbians can marry.

The current bench is also relatively young. With the exception of two pending retirements in the next couple of years, the court as it is now will likely remain intact for at least another 10 years.

At 49, Judge Deschamps, becomes the youngest member of the nine-member bench, taking over for Justice Claire L'Heureux-Dubé, who retired last month.

There's still a chance for Mr. Chrétien to appoint at least two more judges during his current mandate, if he remains leader.

Justice Charles Gonthier, a Quebec appointee, must retire by next August, when he reaches the mandatory retirement age of 75. And Justice Jack Major, 71, has hinted that he might retire early.

Legal analysts say Mr. Chrétien's appointments have been traditional and safe, but that the court has become a more reserved institution than it was during its more activist days of the early to mid-1990s.

"I think it has become more middle of the road," said Chris Manfredi, a Montreal-based critic of the high court.

"You have a chief justice who is very aware of preserving the court's institutional legitimacy; I think she's worried about taking things too far. I think McLachlin is the most political chief justice we've ever had."

While Mr. Chrétien's appointments will undoubtedly leave their mark, Mr. Potter stressed that Canada has a more balanced approach to its high court compared with the U.S., where judge selection tends to reflect the stripes of the party in power. But Mr. Manfredi said Mr. Chrétien's sole power to name judges is downright undemocratic.

"It's virtually unchecked," said Mr. Manfredi. "He gets advice from a lot of people but in the end it's his call."

Mr. Chrétien's stamp on the high court began in the fall of 1997, with the retirement of Justice Gérard LaForest. Mr. Chrétien responded to the Atlantic Canadian vacancy by replacing one francophone from New Brunswick with another francophone from New Brunswick: Justice Michel Bastarache.

Analysts at the time said the appointment seemed traditional and safe, but Judge Bastarache has turned out to be much more activist than the conservative Judge LaForest.

Mr. Chrétien then went on to replace a Bay Street lawyer with another Bay Street lawyer, with the surprise appointment of Justice Ian Binnie to take over from the deceased Justice John Sopinka in 1998.

In 1999, Mr. Chrétien continued the pattern by replacing criminal-law expert Justice Peter Cory with criminal law expert Justice Louise Arbour.

One thing that Mr. Chrétien's appointments have done is dismantle a voting bloc of judges from the 1990s who tended to side with the accused rather than the state in areas of criminal law.

The court was also more bitterly divided on issues during the Mulroney years and has developed into a more united bench, handing down more unanimous judgments last year than at any time in the 1990s.

Neither Mr. Potter nor Mr. Manfredi believes Mr. Chrétien has been driven by any particular political ideology.

"I don't think he's tried to push the court in any particular direction," said Mr. Manfredi.

"But if you wanted the court to pursue a socially progressive agenda, you didn't really need to push it very hard to get it that way. He hasn't done anything to affect the direction that the court was already going in. But I suppose people who think the court hasn't done enough might say he should have been more aggressive."

© Copyright 2002 The Ottawa Citizen