1 The Globe and Mail

Globe and Mail

Door opens for Arbour to join Supreme Court

Judge cleared to leave Kosovo war-crimes assignment, sources say

Friday, May 14, 1999
ANNE McILROY and KIRK MAKIN
The Globe and Mail

Ottawa and Toronto -- ANNE McILROY
in Ottawa
KIRK MAKIN
in Toronto

Madam Justice Louise Arbour appears headed for the Supreme Court of Canada, the way having been cleared for her to leave her job as chief war-crimes prosecutor for the United Nations.

Judge Arbour is seen by many as a dream candidate, but several weeks ago federal government sources indicated her stature could make her indispensable on the world stage, especially with some members of the North Atlantic Treaty Organization anxious to prosecute atrocities in Kosovo.

However, sources say this impediment to her appointment was removed over the past 10 days, in part because Judge Arbour has herself indicated to U.S. officials and others that she planned to leave the job.

The international response to her early departure also not been as negative as the government had feared, the sources said. "The situation has changed dramatically," said one.

Human-rights advocates say Judge Arbour's departure would be a devastating blow to the UN's war-crimes tribunal for the former Yugoslavia, which is investigating alleged atrocities committed by Serbs in the province of Kosovo.

It would also sharply reduce the likelihood of a war-crimes indictment against Yugoslav President Slobodan Milosevic. Many consider the credible threat of such an indictment to be a crucial element in any attempt to force Mr. Milosevic to the bargaining table.

The 52-year-old Ontario Court of Appeal judge now appears all but certain to fill the court vacancy that will appear next month when Mr. Justice Peter Cory retires. It would mean Judge Arbour ending her four-year UN term a year early.

"I don't think it would have been fair to ask her to throw out the next 20 years of her life just because she had one year left on her mandate," said a senior Toronto lawyer who asked to remain anonymous.

Almost immediately after Judge Cory announced his retirement in January, it was an accepted fact in legal circles that the job was Judge Arbour's for the taking.

She is known for her iron resolve, her collegial style and charming manner. The appointment of Judge Arbour would also give the nine-judge court a third female judge and second French-Canadian well versed in Quebec civil law.

Were she to miss the appointment, Judge Arbour would likely have to wait a long time for another vacancy. The other two judges from Ontario (there are three from Ontario on the court), Mr. Justice Frank Iacobucci and Mr. Justice Ian Binnie, are not expected to retire for many years.

Dedicated as Judge Arbour is to the tribunal, she told friends in recent months how arduous and spiritually eroding it is to deal daily with mass atrocities.

Before she left for The Hague three years ago, Judge Arbour said in an interview that she suspected she was not prepared for the scenes of tragedy that lay ahead.

"It may be an aspect I don't want to think about, because that's the one thing that might make you want to stay away from it," she said. "What you lose is your capacity for feeling the way you should."

Marlys Edwardh, a Toronto criminal lawyer who has known Judge Arbour for many years, said it would be hard for anyone to imagine the toll the assignment must have taken.

"The cost to a person and to their family of being in that sort of heated battle day to day must be extraordinary," she said yesterday. "The duration of work one can expect from someone in such a high-pressure position is extremely limited."

Judge Arbour also experienced considerable frustration over the international political dynamics of the job and her almost-total isolation from Canada. Her duties kept her apart from one of her teenaged children, who attends university in Montreal.

(Judge Arbour is estranged from her husband -- former Ontario deputy attorney-general Larry Taman -- who also lives in The Hague.)

Under the appointment process, Prime Minister Jean Chrétien must consult Justice Minister Anne McLellan and Supreme Court Chief Justice Antonio Lamer before making a Supreme Court appointment.

Because Judge Arbour was on the short list last year -- when Judge Binnie was appointed to fill another Ontario vacancy -- the Prime Minister could bypass his consultation with Chief Justice Lamer this time.

Primarily a criminal law specialist, Judge Arbour graduated from the University of Montreal in 1971 and spent a year as a law clerk to Mr. Justice Louis-Phillipe Pigeon at the Supreme Court of Canada. She also acted as a research officer for the Law Reform Commission of Canada.

She was appointed to the Ontario Court of Appeal in 1990 after three years as a Supreme Court of Ontario judge. While on the Court of Appeal, Judge Arbour was seconded to run an inquiry into human-rights abuses at Kingston's Prison for Women.

Should the appointment proceed, others believed to be in the running are likely to wait a long time before the opportunity comes again. They include Madam Justice Rosalie Abella, Madam Justice Louise Charron, Mr. Justice John Laskin and Mr. Justice David Doherty -- all of the Ontario Court of Appeal.

With a report from Paul Knox in Toronto.

Copyright © 1999 The Globe and Mail