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Nine months on, SCC finally gets full complement

|Written By Arshy Mann

Nine months after the retirement of Justice Morris Fish, Canada’s highest court will finally have a full bench.

The federal government announced yesterday it will appoint Quebec Court of Appeal Justice Clément Gascon to the Supreme Court of Canada. At 54, he will be the youngest judge on the Supreme Court when he assumes the position June 9, although his official swearing-in date has not been announced.

Chief Justice Beverely McLachlin welcomed the appointment in a statement released today.

“Justice Gascon is a distinguished jurist,” wrote McLachlin. “He brings extensive expertise in the commercial and civil law of Quebec, as well as many years of experience as a judge. I look forward to his contributions to the court.”

After receiving a civil law degree from McGill University, Gascon worked as a civil and commercial litigator with the now-defunct Heenan Blaikie LLP.

He was first appointed to the Quebec Superior Court in 2002 by the Chrétien government and was then elevated to the Court of Appeals by the Conservatives in 2012. Gascon has worked with the commercial division of the Montreal Superior Court, and has represented the Superior Court on the CBA-Quebec committee on class actions as well as a working group studying U.S.-Canada cross-border class actions.

His appointment has been met with general approval. He was praised by the Quebec Justice Minister, the Barreau du Québec, as well as the federal NDP and Liberal parties.

The barreau expressed satisfaction that the vacancy at the Supreme Court has been filled. Today's nomination "is excellent news for Canadians," said bâtonnière Johanne Brodeur.

Brodeur was particularly happy with the appointment of a bilingual judge.

"For us, it's fundamental that a case before the Supreme Court can be understood in the two official languages without the help of an interpreter," she added.

Not everyone was pleased with Gascon’s appointment. Carissima Mathen, an associate professor of law at the University of Ottawa, noted of the seven appointments made by the Harper government to the SCC, six have been men.

“The depth of female jurisprudence in this country makes 6 of 7 a track record that cannot be explained by coincidence,” she tweeted.

Michael Plaxton, a law professor at the University of Saskatchewan, was similarly despondent.

“Back in the day, we used to hope for gender and racial diversity on the #SCC. Now we’re just happy to get qualified and eligible nominees,” he opined on Twitter.

Plaxton pointed out that the federal government chose to bypass Justice Marie-France Bich, the consensus choice of many members of the Quebec legal community and who was one of the two eligible nominees on the government’s previous short-list.

Justice Andromache Karakatsanis of Ontario is the only female judge Stephen Harper's government has appointed to the Supreme Court.

Gascon will not be subject to the public hearings Harper introduced with Justice Richard Wagner's appointment and has required of all Supreme Court appointees. since

Paul Daly, a law professor at University of Montreal, thinks that is a smart decision.

“I think in the circumstances, people were looking for something to be done quickly,” he tells Legal Feeds. “I’m one of those who thinks the public appearances of the nominees do not add a great deal at least to the legal community.”

Daly does not believe the botched appointment process of Justice Marc Nadon has done serious damage to the relationship between the federal government and the Quebec legal community.

“L’affair Nadon was unprecedented and is unlikely to arise again now that we have clear guidance from the Supreme Court on what the criteria on appointment are.”

He does however disparage the characterizations of the Quebec bar as left-leaning and the Federal Court as pro-government that pervaded much of the commentary around the failed Nadon appointment.

“I think it is wrong to suggest that the Quebec legal community is in some way more liberal. In fact, Quebec is the province in which intellectual opposition to the Charter is at its strongest for historical reasons relating to language rights and what people see as Quebec’s distinctive political and legal tradition,” he says.

“I also think it’s very wrong to think that Federal Courts are in some way more deferential to the government. It may look as if they are because they deal with judicial review cases against the federal government, but these are cases in which the deck is always stacked against the individual.”

While Gascon’s appointment temporarily gives the Supreme Court a full complement of judges, another Quebec vacancy is on the way later this year, when Justice Louis LeBel retires.

“The most interesting thing will be to see what happens for the replacement of Justice LeBel,” says Daly. “But at least we have a full compliment of judges on the Supreme Court now and it can move forward.”


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