Departing Supreme Court Justice Marie Deschamps says legislators have taken to passing ‘unclear’ laws with the understanding that the courts will sort them out.Dave Chan/The Globe and Mail
The next judge appointed to the country's highest bench must be a woman or Canada risks tarnishing its reputation on gender equity, departing Supreme Court Justice Marie Deschamps says.
Simply not enough women are at the Supreme Court, said Justice Deschamps, 60, who was replaced by Justice Richard Wagner. While she praised her successor, she said the appointment left only three female judges on the nine-seat bench – and that she wished her replacement had been a woman.
"Numbers do count," Justice Deschamps told The Globe and Mail in a candid interview ahead of her departure on Wednesday. "I was sad that I was not replaced by a woman. We are looked at not just as a model for the courts in Canada, but around the world – and I think it's very important that the Supreme Court of Canada remains a model."
Justice Deschamps also expressed concern that the political process is breaking down, with gun-shy politicians routinely foisting "hot potato" political issues onto judges who have no choice but to take them on.
She said that, given the constant scrutiny that accompanies political office, it is small wonder that legislators purposely pass "unclear" laws that are bound to be challenged in the courts.
"The clear message is: Let the judges do it," Justice Deschamps said. "We are caught in these situations. We see those cases coming and we cannot say no."
In the wide-ranging, two-hour interview, Justice Deschamps addressed developments that have transformed the dynamics of the Supreme Court in recent years, including the use of e-mail, an increase in collegiality and a growing trend toward retiring early enough to pursue another career.
She also weighed in on the sensitive question of bilingual judges, warning that future judges must be capable of understanding legal arguments in both official languages.
"What is important is that you are functional – that you understand," she said. "I expect judges coming to this court in future to have at least some kind of basic understanding of French. If you want to be on this court, you have to be sensitive to it."
Justice Deschamps, who intends to teach law at two Quebec universities, announced her retirement last spring after 22 years as a judge. She observed that the notion of Supreme Court judges serving until their mandatory retirement age of 75 has become antiquated.
"We really work at this as a job and we do our best, but this is not your final achievement at the end of the road," she said. "There is life after being a judge, and there is life at the end of the Supreme Court."
Justice Deschamps shed new light on a court that she found was seriously divided when she arrived in 2002.
"There was a little group that used to work in their offices, often with the doors closed," she said. "They brought their lunches or had their dinner brought to their office. They had these little portable tables." The other judges were left to eat alone in their dining room, she said.
Now, judges dine together regularly, she said. "Justice [Marshall] Rothstein usually doesn't eat lunch, but we will still go and pull him from his chair," she remarked. "Someone will go in and say: 'Come on or else we will talk about you.'"
Part of the atmospheric change is attributable to the rising complement of female appointees, Justice Deschamps said.
"We speak our minds very easily," she said. "We do not hold our cards. We all had offices one beside another, which also helped. We kept our doors open. When we see someone sitting in the office of another now, it is an attraction, a magnet to participate in the conversation. It is really a different court."
In another welcome change, judges ceased sending one another lengthy memos about cases, Justice Deschamps said.
"When I came here, I saw that we talked with our pens," she said. "I saw five- or 10-page memos going around. My very first memos were just two lines, but my points didn't fly."
The current court has embraced e-mail, she said: "It's very much more intimate. They are from a judge to a judge. What I have seen and lived is this transformation into a court that talks. We say what we think about the case. We don't just write it and circulate it."
Justice Deschamps said that the most formidable obstacle she faced was her poor command of English: "I could not convey my ideas as persuasively as I would have liked," she said. "My points were not getting through. This was something that I resented initially."
However, she said she learned to write English proficiently. She points to herself and Justice Rosalie Abella – who has learned French since her appointment in 2004 – as proof that a judge can carry a heavy workload yet pick up another language.
In another early disappointment, Justice Deschamps discovered that Supreme Court justices did not like to discuss cases before hearing oral arguments in case they "contaminated themselves with what the others were thinking."
At her urging, they agreed to experiment with a pre-hearing conference. "On that first day, at 9:15 a.m., we were all around the table – but no one talked," she said. "That was the end of it. We never did it again."
She said the judges are every bit as intrigued as lawyers are when a colleague speaks in court. "We usually can predict by the tone of the voice whether a question is asked to obtain clarification or whether the judge has a real problem with the issue."