The federal government should ensure there are at least four women on the Supreme Court of Canada's bench, according to retiring Justice Marie Deschamps, but she doesn't think appointees have to be bilingual on day one of the job.
The 59-year-old Quebec justice, whose retirement took effect Aug. 7, expressed her views on those issues and many more during a wide-ranging interview in her office at the Supreme Court. She said she likes the current gender balance with four out of the nine justices being women, and hopes it stays that way when the government fills vacancies.
The search is underway for her replacement and over the next few weeks Deschamps will be wrapping up her work on cases and preparing to move on to the next chapter in her career.
Deschamps commented during the interview on the idea of politicians being appointed to the bench, whether it's time for the Supreme Court to hear a case on doctor-assisted suicide, her passion for the law and concerns she has about access to justice in Canada. She also talked about why she's leaving, the state of the Supreme Court today, and what lies ahead for her.
Here's an edited version of the conversation.
Q: Why are you leaving now after 10 years at the Supreme Court? What prompted your decision?
A: After 10 years I had the feeling that I was ready to do something else. It's been 10 very intense years and I was ready to do something else, that's it. There was no specific reason. The court at this point is a very good place to work and the people who are now here are good friends, it's nothing negative.
Q: What would you say is the biggest challenge facing the court as a group, as an institution?
A: Presently I don't think there is any specific challenge, or any challenge that's different than other times during the life of the court. As I mentioned, the group here is a very good group, very passionate. We have a chief justice that has been chief for the last 12 years, she masters everything that she needs to do as chief. She is excellent as a chief in reconciling positions of people wherever it's possible. It's a good time at the court so I feel that for my successor it's a good time to come in.
Q: There's a case that might eventually come to the Supreme Court, the assisted suicide case from British Columbia. It's been a long time since the Supreme Court has heard this kind of case, Sue Rodriguez in 1993, was the last time. Is it about time the court hears this issue again?
A: I can't tell whether the permission will be granted … whether this case by itself will be a case that will lend itself well for examining the issue, I can't tell because it's only ... when all the arguments are in writing, when the judgments are read that we can find out whether it's time for the court to take the issue.
Q: Some people say it's time for a debate again, 1993 was a long time ago, do you think it's time for a debate in Canada again?
A: There is a distinction between a debate that ends up in the court and debate in society. The court is the last resort. Normally the court is a place where litigants will go because they need to have the court because there are no other mechanisms, but litigation is not the best way to resolve big social issues. There are other places in society where big social issues can be discussed.
Q: Like where?
A: You have universities where big social issues are discussed, you have legislatures, you have elections, where big social issues are discussed. Courts do not have exclusivity as a forum for a discussion of social issues.
Q: Chief Justice Beverley McLachlin recently expressed concerns about access to justice in Canada. Do you share her concerns?
A: Of course. Because in society there are two groups that can manage their way through the courts: those who are eligible for legal aid and those who have big money. In-between there is a big group of people who will need legal services and for them it's very difficult. We need to find ways ... access to justice is an issue that has been on the table for a long time, I would say, forever, but we need to keep working at it. At present, one of the biggest problems is access to justice for the middle-class people who really have nowhere to turn to. We have to keep working at it.
Q: Do you have any concerns with the appointment of a politician to the bench, straight from Parliament Hill over to a court, any concerns about that?
A: It all depends who is appointed. If the person …has good judgment, good legal experience, the fact that the person has been in politics is not a detriment.
Q: Do you think there should be a cooling off period at all? Should there be a waiting period?
A: Judges follow written and unwritten codes of ethics and my own barometer, my own line of conduct has been whenever I'm not comfortable with deciding an issue and having been involved in [my] previous life in one of the issues is usually a no-no. Codes of ethics are better ways to measure whether someone can or cannot be involved.
Very often, a superficially objective norm like two years cooling off says nothing about the real involvement of someone. Sometimes it can last much longer than two years. Sometimes the person has not been involved even if people would think [he or she] has been. It depends. People have to look at it with some kind of a more contextual approach than just a two- year benchmark.
Q: There are rumours surrounding Public Safety Minister Vic Toews possibly being appointed to the bench in Manitoba. Would it be OK for him to go straight from politics to the bench?
A: As I say, I rely on people not to hear cases in which they've been involved. I have no particular comment on the government appointing politicians. There is experience with other politicians having been appointed and they've been good judges.
There are sufficient mechanisms built in for judges to take a step back and to be able to maintain the standard and the standard is the appearance, not only the actual conflict but appearance of conflict. You have to rely on people to be able to maintain that standard because the consequences are widespread. A judge that comes on the bench will want to maintain the confidence in the administration of justice and one of the first issues is impartiality, independence.
Q: Do you think bilingualism should be a requirement for Supreme Court justice appointees?
A: I think it makes the life of the judge much easier when the judge is bilingual. The end result, I don't think it makes a difference. For the judge to be able to convey their own ideas in the language that everyone will understand, it's better to be bilingual. I have a lot of confidence in the life of the court to be able to convince the judges that this is important. I've seen people come here not being able to speak French and now these people do read French, ask questions in French, they don't use the interpreters, so it's do-able.
Q: So you don't think it has to be a requirement for the job to be bilingual because they can learn French after?
A: I'm a realistic person. Sometimes it's difficult. There are some parts of the country where it's more difficult to have bilingual judges. They might be a qualified candidate and they can learn on the job when they come. In the end, I think it's important that everyone become bilingual.
Q: What about the gender balance on the court? Do you hope that your replacement is a woman? Should that be a factor?
A: I think every court should aim for half and half. I like the way our chief coins it, when we have a critical mass of men or women it's more an equal rapport between the two genders.
It's important that it's balanced. Yes, I do like the present balance. I do like the fact that we are four [women] on the court. And I must say that I have seen the difference. When Justice [Louise] Charron and Justice [Rosalie] Abella were appointed we went from three to four and I have seen some kind of difference. Maybe the personalities are a factor.
I hope that the government will maintain at least four women on the court. Whether the next candidate is a woman or it's the one that follows it will be for the government to decide.
Q: Did you come to the Supreme Court with any goals in mind?
A: Frankly, I didn't feel that I was on a mission. I wanted to contribute to the work of the court and I think I did my best. I was passionate about law, I am still passionate about law. That part is a continuum in all my career. I had the same approach when I was a lawyer, when I was at the [Quebec] court of appeal, and here it intensified. And now I'm just going to another stage.
Q: What is an experience that stands out for you when you reflect on the last 10 years?
A: How working in a team very closely is rewarding. I would not like to finish without saying how important for this teamwork our chief is. She is very good at making sure we work as a team. She always works with her door open, we know that we can go in and pour out our heart and discuss our approach to a case or the difficulties with some of the issues we're facing. When I will leave this building one thing that will stand out is the collegial work we're doing here. It's not the work of one individual judge, it's really what we can achieve as a team.
Q: What's your general feeling as you wind down your time here?
A: I feel good. I still have six months to go, it's more or less business as usual. I still have cases I am working on daily. It will not be any different until I put my name on the last case. I will continue to devote myself with the same passion to the work of the court.
Q: You said it's been an intense decade, can you elaborate on what the lifestyle of a Supreme Court justice is like? What's the workload like?
A: Not all judges have the same way of working so I don't want to talk in general how judges work because everyone has their own way. Everyone knows we have a big workload, that does not mean we don't take time off, at times. Judges do take some holidays but not everyone will take weeks at a time. Some people will take days at a time, others prefer to take one week or 10 days or two weeks. For sure you don't see a judge leaving for a month or two, that's unheard of in my 10 years here.
We all find some time, little moments for ourselves and our families. I don't want to exaggerate what the life at the court is. Besides that, we pretty much devote all our efforts to the work of the court. The work of the court not only means the cases but it also means the way judges live their life as judges now we need to be also present in the community. Part of our work that is less known is this part where we do some kind of outreach. We will accept a number of invitations to go to universities, to speak to groups, to participate in international activities. Just giving the speeches, preparing, writing articles, takes a lot of time too. So we have our cases, in which we are fully engaged and doing the court work, the hearing work, means preparing, participating in the hearing and then doing the research after the hearing, doing the writing or participating in the work of the other judges who will write cases and besides that we have the outreach work.
Q: It sounds like a lot of work.
A: Yes, but when you're passionate about your work it's always fun. One thing I can say about the judges here, we're all passionate about our work ... no one is counting the hours here.
Q: Other justices have also left before the mandatory retirement age of 75, is burnout a concern?
A: In my case, no, I'm certainly not burned out, because I'm looking for work immediately. I'm not looking for any kind of break
Q: What's next for you?
A: I want to concentrate on working with young people, students mostly. I've been offered an office at McGill University, I've been told that the key is ready for me to pick up. I have a place to go, I've offered my help to students there. Last week, I was at the University of Sherbrooke and I met with the dean. I've been an associate professor there for the last six years so I want to intensify my contribution to that university too. So it's this kind of activity I want to concentrate on.