Supreme Court nominee avoids scrutiny on Hill
The government says its new Supreme Court appointee will head directly to the bench without appearing before a parliamentary committee first for questioning.
Prime Minister Stephen Harper Thursday appointed highly respected Montreal civil trial lawyer Suzanne Côté to fill a Quebec vacancy on the court created by the departure of Justice Louis LeBel, who hits the mandatory retirement age of 75 on Sunday.
Côté is Harper’s seventh Supreme Court appointment since taking office in 2006.
She also is the second female justice appointed by Harper and the ninth since the court’s first female jurist, Bertha Wilson, took her seat in 1982. Côté’s selection brings the institution back to its historic high of four women on the nine-member panel.
She’s the first woman appointed to the court directly from private practice.
Côté is described as one of the most experienced litigators in the country, with extensive expertise in civil and commercial litigation over a 34-year career. She most recently headed the Montreal litigation group at Osler, Hoskin & Harcourt LLP. The legal community and Supreme Court observers praised her appointment.
Still, why has Harper chosen her? The country may never know.
The Conservative government won’t invoke its one-time practice of having Supreme Court appointees go before a televised parliamentary review committee and introduce themselves to the nation.
That review, though toothless, was the final bit of openness remaining in the secret process of selecting nine of the most important people in the country. The Conservative government in 2006 abandoned a series of transparency reforms introduced by the previous Liberal government.
Until recently, it retained the reform of requiring nominees to appear before an ad hoc committee of MPs to answer questions about their backgrounds, values and beliefs. But the government appeared to scrap that practice, too, after the Supreme Court selection fiasco that ended with the June appointment of Justice Clement Gascon.
“This doesn’t change anything; the process, regrettably, remains at this point much less transparent than what it had been,” said Liberal MP and former justice minister Irwin Cotler, who spearheaded the Liberal reforms.
The secrecy in the Côté appointment is compounded by her not being elevated from a superior or appellate court. She has authored no lengthy legal judgments that might offer insights about her philosophy and outlook on the world or the perplexing issues she will face on the top court.
On the other hand, her privatepractice background may be an asset. Her fresh and extensive experience as an in-the-trenches practitioner should be a welcome addition to a bench populated by career and longtime magistrates. The last Supreme Court justices to come directly from private practice were justices John Sopinka and Ian Binnie. Both became highly influential forces.
“Clearly, she is very, very well qualified,” said Benjamin Perrin, a former legal adviser to the prime minister and now a University of British Columbia law professor.
“Most of the Supreme Court of Canada judges who practised law did so in a very different era and things have changed remarkably at the trial level in courts across the country. It’s good to have a Supreme Court judge who can bring that perspective. “
Still, “it’s a bit of risk for them, to take a chance on someone like this. You don’t know how they will perform as a judge, it’s a new job, there’s a big learning curve.”
The government wanted to avoid a repeat of the disastrous handling of the 2013 appointment of Marc Nadon. The Supreme Court Act stipulates a Quebec lawyer, or Quebec superior or appeals court judge with a knowledge of Quebec’s civil code, is eligible to fill the court’s three Quebec seats. But Nadon was a Federal Court of Appeal judge from Quebec. The Supreme Court, in a 6-1 decision, found Nadon’s appointment contrary to the act and barred him.
The government also was pressured to appoint a woman. Combined with the act’s limits on eligible candidates, that meant a considerably reduced pool of potential candidates, even before any possible political or ideological considerations might be applied by Harper.
However, the government says it did seek a variety of views. That included consultations with Quebec; Chief Justice Beverley McLachlin; the Chief Justice of Quebec; the Chief Justice of the Quebec Superior Court; the Canadian Bar Association and the Barreau du Québec.