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The dream team: Top 9 (or should it be 8 now?) SCC judges

|Written By Andrew Reinholdt
The dream team: Top 9 (or should it be 8 now?) SCC judges
Beverley McLachlin is the first woman to be appointed chief justice of the Supreme Court of Canada, a position she has held since 2000.

Since the inception of the Supreme Court of Canada, many men — and a depressingly low number of women — have served this institution. In light of the recent controversy surrounding the appointment of Justice Marc Nadon, I have reflected on what would be my all-star SCC panel. No, this light-hearted, satirical list does not conform to the statutory requirement of Quebec representation, nor is every judge bilingual. (This is my dream team, OK?)

1.    Chief Justice Beverley “B-Mac” McLachlin

Who better than the current and longest-serving chief to serve as chief? Over her quarter century on the bench she has modernized the court by broadcasting hearings no one watches, and been a strong public face for the court. While I tend not to agree with many of her decisions (Alberta v. Hutterian Brethren of Wilson Colony — seriously?), she is a strong writer who has penned some of the court’s most poignant and Insite-ful decisions.

2.    Justice Ian “why sit on the court when I can bill for my opinion” Binnie

Binnie was arguably the court’s best modern writer. While I also disagree with some of his decisions (see Plourde v. Wal-Mart Canada Corp., where he helped enable Wal-Mart’s trampling of union rights), he just writes so darn well. And some of his decisions are my favourite, particularly his concurrence in Dunsmuir v. New Brunswick, where he correctly prophesied that courts would struggle applying the single reasonableness standard of review and stressed the inevitability of a contextual reasonableness standard. Did I mention he writes really, really well?

3.    Justice Bora “Bora” Laskin

As a student aspiring to work as a union-side lawyer, Laskin is a must on my court. He has been a favourite of mine since I read his dissent in Harrison v. Carswell, where the court denied employees the right to picket in the shopping centre where they worked. While he may have worked in cahoots with former prime minister Pierre Trudeau in repatriating the Constitution, considering the current government, I don’t see much risk of another such indiscretion.

4.    Justice Bertha “Boys’ Club” Wilson

This one is a no-brainer — and not just because she was the first female member of the court. Wilson was truly ahead of her time, authoring strong decisions, such as her concurrence in R. v. Morgentaler. These decisions created a lasting footprint in SCC jurisprudence. For example, of the judges during Brian Dickson’s tenure as chief justice, Wilson’s decisions, often in dissent, are the third-most cited since.

5.    Justice Lyman Poore “Me A” Duff

Sold to the public as the greatest jurist ever, to justify the abolition of appeals to the Judicial Committee of the Privy Council, Duff was also ahead of his time. The JCPC adopted his lone dissent in the Persons case a.k.a. the only SCC decision from before 1960 people care about. Duff was also so well liked that two acts of Parliament postponed his retirement.

6.    Justice Brian “the Library” Dickson

Dickson makes the bench for two equally important reasons. First, he snubbed Manitoba and gave all his stuff to the University of Ottawa (go Gee-Gees!). Second, he wrote the book on Charter interpretation and gave it the teeth that the Bill of Rights never had. Over 20 years since his retirement, who wouldn’t want to read his thoughts on the Charter’s modern interpretation? (Other than anyone who didn’t go to law school.)

7.    Justice Claire “the Dissenter” “the Secularist” L'Heureux-Dubé

Formerly the left’s favourite judge, L'Heureux-Dubé recently shocked the legal community by throwing her support behind Quebec’s secular charter. However, she still makes the list (albeit a few spots lower than she would have a month ago) because her opinions, particularly on feminist issues, are strong and memorable. Her dissection of former Alberta Court of Appeal justice John McClung’s reasons in R. v. Ewanchuk is the most powerful opinion I have ever read. (What happened, LHD?)

8.    Justice John “the Thinka” Sopinka

I have not selected Sopinka because of his judicial legacy (although working at a criminal defence firm, I saw firsthand how important his decision in R. v. Stinchcombe is to preparing a defence). One of my most memorable law school experiences was hearing Susan Nelles, who was wrongly accused of murdering infants at SickKids hospital, talk about Sopinka who represented her when she sued the police for malicious prosecution. Not only did she speak about the quality of his representation as an advocate, but also his quality as a person.

9.    Justice Rosalie “Under My Umbr” Abella

While most lefties would put Abella near the top of their list, here she just squeaks in. On one hand, she has written fantastic dissents, such as in R. v. N.S., where she vehemently opposed women having to remove their niqab to testify. On the other hand, her recent administrative law decisions are hugely problematic to judicial review applicants. In the Newfoundland Nurses case, she found that while the duty to give reasons is part of the duty of procedural fairness, if there are any reasons at all — even a Post-it note that just says “Ya-Burnt” — that would not constitute a breach of the duty of fairness.

Andrew Reinholdt is a third-year law student at the University of Ottawa.

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