The Retirement of Justice Louis LeBel and the Secretive Process that Led to the Appointment of Suzanne Côté

The government has slammed the door on parliamentary and public involvement regarding the replacement of retiring Justice Louis LeBel. On November 30, 2014, Justice LeBel turned 75, the mandatory retirement age for Supreme Court judges. Most justices often depart some months before their birthdays, but LeBel decided to take his tenure right to the end. He gave his six months’ notice on May 23, 2014, and Chief Justice Beverly McLachlin’s office announced the retirement in a news release that day.

Former Prime Minister Jean Chrétien appointed Justice LeBel to the Supreme Court in 2000. By the date of his retirement, Justice LeBel will have served as a judge for thirty years, including over fourteen years on the Supreme Court of Canada. Justice LeBel is recognized as an expert in labour law and Quebec’s civil code. Court observers say he stood out for his wisdom, his sense of humour when questioning lawyers, and his courteous, even courtly, manner.

Justice LeBel ‘s departure means the government has two vacancies on the court for Quebec judges. Since 2006, the Conservatives have named six other Supreme Court Justices. Stephen Harper has appointed the majority of the justices on the current Supreme Court. He appointed Justice Marshall Rothstein (2006), Justice Thomas Cromwell (2008), Justice Michael Moldaver (2011), Justice Andromache Karakatsanis (2011), Justice Richard Wagner (2012), and Justice Clément Gascon (2014). The earlier appointees were vetted and shortlisted by an advisory committee of MPs, with final selection by the prime minister and the cabinet. This was followed by an appearance before an ad hoc committee of MPs.

Unlike previous appointments, no such process was followed in the appointment of Ms. Suzanne Côté. The days leading up to the announcement of her appointment the government had little to say. The public remained in the dark the entire time. Irwin Cotler remarked, “In recent months, the government said it would make the appointment “promptly,” but it wouldn’t say when. The government said it was consulting “with a wide variety of groups and individuals,” but it would not say with whom. The government said that the whole Supreme Court appointments process was under “reconsideration,” but it wouldn’t say what that reconsideration entailed.”

Compare this to 2004, when the appointment process was revamped. In the appointment of Justice Abella the process featured evaluation criteria which was publicly announced publicly at the outset; a published protocol setting forth the people to be consulted; an advisory selection panel composed of MPs, distinguished representatives of the legal community and eminent public persons; and an ad hoc parliamentary committee. Irwin Cotler as Justice Minister took questions before the confirmation of the appointments, notably about the nature of the consultation process and the way in which the nominees satisfied the evaluation criteria. Moreover, the public was invited to participate. The advisory panel was empowered to carry out independent consultations and the ad hoc committee made public recommendations for improvement.

The appointment of judges is one the government’s most important responsibilities. These judges are entrusted with upholding the rule of law, and protecting our rights under the Charter. Yet, their appointment is shrouded in secrecy. We have arguably regressed from the open process implemented in 2004. The lack of public engagement does not help foster confidence in our courts. One could argue that this is a result of the government’s disastrous handling of the 2013 Marc Nadon appointment to replace Justice Fish.

The public simply received an announcement of the appointment of Ms. Suzane Côté in a news release from the Chief Justice’s office. Although the process of her appointment can use some clarification, she is a welcome addition to the bench. She will be the first woman to be directly appointed from private practice, and will bring with her a wealth of expertise in commercial and civil law.