National Post

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Thursday, December 23, 1999

Louis LeBel appointed to Supreme Court
Surprise choice by PM maintains francophone majority
Janice Tibbetts and Luiza Chwialkowska
Southam News and National Post


Jacques Boissinot, The Canadian Press
Louis LeBel best fit the bill, Jean Chretien, the Prime Minister, says.

OTTAWA - Jean Chretien, the Prime Minister, stunned the legal community yesterday by elevating Justice Louis LeBel, an understated but respected judge on the Quebec Court of Appeal, to the Supreme Court of Canada.

The appointment of Judge LeBel, a former member of the Quebec and federal Liberal parties, was unexpected. There had been wide speculation that Mr. Chretien would be unable to resist naming the first anglophone Supreme Court judge from the province in 45 years.

The prime minister also broke the tradition of replacing a Montrealer with another Montrealer. Judge LeBel is from Quebec City.

He will fill the vacancy left by Antonio Lamer, the retiring chief justice.

"To a certain extent, I must tell you I was surprised," said Judge LeBel, who received the offer on Tuesday when Anne McLellan, the Justice Minister, called him at his office.

Mr. LeBel's appointment means the balance of five francophones and four anglophones on the high court, established when Louise Arbour, a francophone from Ontario, was sworn in last October, will be maintained for at least a year or so, when Justice Claire L'Heureux-Dube, 72, is expected to retire.

Judge Arbour's appointment marked the first time since the court was established in 1875 that a majority of judges was francophone, said James G. Snell, author of The Supreme Court of Canada, A History.

Patrick Monahan, professor of constitutional law at Osgoode Hall Law School in Toronto, said that having a majority of francophones on the high court could influence the national-unity debate.

"If the court is called upon to play a role in any future national-unity debate, it should have legitimacy in the province of Quebec, given the fact that the majority of the court are now francophone," he said.

Judge Lebel is described as having a "morally conservative world view," a man known for deferring to legislatures rather than striking down laws.

"He is a judge who practises judicial restraint," said Henri Brun, professor of constitutional law at Universite Laval in Quebec City. "He is not a judicial activist. He will only strike down a law as unconstitutional if it is really necessary."

Mr. Brun described Judge Lebel as a "very learned jurist" who "does not try to be a star."

Mr. Chretien, who gave little explanation for his decision, conceded that Judge LeBel's name did not seem to be at the top of anybody's list except Ms. McLellan's, who made the recommendation.

"His name was not mentioned, but with his experience and his ability, he was in our mind the best to fit the bill," said Mr. Chretien. He acknowledged that language was taken into account, but said it was not an overriding factor.

Judge LeBel, who is married with three grown children, was a star labour lawyer, legal author and law professor in Quebec before he was named to the Quebec Court of Appeal in 1984. He is described in legal circles as a hard-working, collegial, but reserved judge with a brilliant legal mind, and he is credited with writing a book that has become the bible of labour law in Quebec.

"He's a very dedicated, soft-spoken, intelligent man and he's clearly of Supreme Court calibre, but his appointment is still a surprise for all of us," said Jacques Fremont, a Universite de Montreal law professor.

"I know he's seen as a judge who will listen, who's very nice on the bench. He's seen as a gentle person," said Guylene Beauge, president of the Quebec chapter of the Canadian Bar Association.

Judge LeBel was a member of the Quebec and federal Liberal parties in the 1970s and helped to write the provincial Liberals' response to Quebec sovereignty before the 1980 referendum. The Liberals proposed reforming Canada's federalist system to give more power to the provinces.

Some of the most noteworthy judgments Judge LeBel has written are a ban on tobacco advertising in Quebec and the injunction he issued in the summer of 1989 against Chantale Daigle to prevent her from getting an abortion against her boyfriend's wishes.

Justice Morris Fish, an anglophone Montrealer who was a star criminal lawyer before he was appointed to the Quebec Court of Appeal 10 years ago, was widely believed to be a leading contender for the coveted position.

In an interview, Judge LeBel said he did not make the decision to join the Supreme Court lightly.

"It's always something I wanted to do at some point, especially since becoming a judge. You feel yes, it's an honour, yes, you're happy, but yes, you feel the responsibility because it's a major challenge joining the Supreme Court of Canada," he said.

Judge LeBel's appointment ends a year of significant change at the Supreme Court, with the retirement of Judge Lamer and Justice Peter Cory and the promotion of Justice Beverley McLachlin to chief justice.

Judge LeBel said he hopes the heavy workload won't interfere with his hobbies off the bench, which include poetry, art, swimming and growing roses.

"If you work, eat and sleep only the law, you just desiccate ... My main duty is to do the work of the court, but I'll try to keep open eyes and ears and to keep reading and seeing other things," he said.

Judge LeBel's appointment ends a year of significant change at the Supreme Court, with the retirement of Judge Lamer and Justice Peter Cory and the promotion of Justice Beverley McLachlin to chief justice.

NOTEWORTHY JUDGMENTS:

In his 15 years on the Quebec Court of Appeal, Justice Louis LeBel has penned dozens of noteworthy decisions. They include:

- 1998: Overturned the conviction of a man who had anal sex with a 16-year-old boy, on the grounds that the pertinent section in the Criminal Code is unconstitutional.

- 1998: Dissented with the rest of the court when it allowed Montrealer Peter Prokos to serve his 23-month sentence for heroin-trafficking at home instead of in jail.

- 1996: In a victory for privacy rights, Judge LeBel upheld a lower-court ruling that a woman's right to privacy was violated when a photograph taken without her knowledge ran in a multicultural literary magazine in 1988. The decision was later upheld in the Supreme Court.

- 1993: Upheld the federal government's right to ban all tobacco advertising by reversing a lower court ruling that struck down the law.

- 1992: Upheld the drug-trafficking conviction of Paul Sauve, a high-ranking RCMP officer, and his civilian accomplice, Gerald Hiscock.

- 1989: In one of the most controversial rulings that decade, Judge LeBel co-authored a ruling that granted an injunction to stop Chantale Daigle from getting an abortion against her boyfriend's wishes. "In the concrete circumstances of this case, there is the problem of the legal status of a fetus at about 20 weeks. At this age, its arms and legs, organs and nervous system are formed, it has taken human form and is on the eve of crossing the threshold of viability outside the mother's body," he wrote.




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