OTTAWA— After just five years on the country’s top court, Justice Clément Gascon will retire in mid-September “for personal and family reasons,” potentially opening a Quebec seat on the Supreme Court of Canada just as a federal election campaign is playing out.
In making the surprise announcement Monday, Chief Justice Richard Wagner suggested he hoped Prime Minister Justin Trudeau would move quickly to name a replacement.
“I am confident that the necessary care and consideration will be given to the prompt appointment of a new justice,” Wagner said in a statement released by the court.
The Conservative Party said no search should get underway until recent leaks about the last round of judicial appointments — and a disagreement between Trudeau and his former justice minister Jody Wilson-Raybould over who should lead the top court — are investigated.
But Trudeau, who has already named two high court judges, signalled he is beginning the search for a third right away.
On Twitter, Trudeau thanked Gascon for his service, wished him well in retirement, and said he’d already asked former prime minister Kim Campbell to lead the search for his replacement.
Campbell led Trudeau’s advisory committee for his appointments of Justices Sheilagh Martin and Malcolm Rowe, and “will once again lead the advisory board to select a new appointee, as part of a non-partisan, transparent, and merit-based process.”
Gascon, who is 59, did not specify the reasons that led him to quit the bench, but called his 17-year judicial career a “privilege.”
“It is an immense honour to have been part of a judiciary that, by its expertise, quality, and independence, is a model in Canada and around the world. I remain profoundly grateful to all those who put their trust in me over the years,” he said in a written statement.
Wagner praised Gascon’s “significant contribution” to Canadian law.
“His thoughtful, rigorous, and collegial approach has always helped us get to the heart of the most complex issues,” Wagner said. “He has served Canadians with integrity and wisdom. All of his colleagues will miss his commitment and friendship.”
Gascon had practised civil and commercial litigation and labour law in Montreal before the federal Liberal government of Jean Chrétien appointed him as a trial judge on the Quebec Superior Court in 2002.
The Conservative government of Stephen Harper elevated Gascon to the Quebec Court of Appeal in 2012.
Following Harper’s failed attempt to appoint a federal court of appeal judge to a Quebec vacancy on the top court, Harper ditched any parliamentary hearing into his next pick and named Gascon to the Supreme Court in June 2014. Harper’s first choice for the job, Marc Nadon, saw his appointment invalidated by the Supreme Court of Canada.
Deputy Conservative leader Lisa Raitt praised Gascon’s “wisdom, dedication and professionalism” but she said the Trudeau government should not immediately launch a new selection process.
Instead, the party’s justice critic said the government must investigate how the name of a previous candidate for the Supreme Court was leaked during the Liberals’ “misguided attempt to engage in damage control over the SNC-Lavalin corruption scandal.”
“Restoring integrity and confidence in the judicial selection process must be a priority, as it may discourage highly qualified individuals from applying,” Raitt said in a written statement.
Over the past two decades, prime ministers of different political stripes have attempted to bring a measure of transparency and independent advice to the task, but making Supreme Court appointments remains the sole prerogative of the prime minister.
It is an unparalleled chance to name the individuals who have power to shape and interpret the law and the constitutional powers of different levels of government, to choose judges who are deferential to Parliament or who see their role more broadly.
University of Saskatchewan law professor Michael Plaxton has written that under a constitutional convention, the government is obligated to exercise restraint in making significant appointments while it is functioning in a “caretaker” role, as it does during an election campaign.
He said the timing of Gascon’s departure on Sept. 15— when the campaign for an Oct. 21 federal vote is expected to be underway — potentially “sets up” the Liberal government to act as Stephen Harper did before the 2015 campaign.
On July 27, 2015, Harper appointed Russell Brown from the Alberta Court of Appeal to replace Supreme Court of Canada judge Marshall Rothstein, whose retirement took effect at the end of that August.
The 2015 federal election was called six days after Brown’s appointment was announced, and the appointment took effect while the campaign was on. (Like Gascon, Brown never attended a parliamentary hearing to answer questions from MPs, a measure of transparency that Harper gave up on after the Nadon appointment.)
On Monday, Plaxton took to Twitter to say Brown’s appointment “took effect in the middle of the election campaign — contrary to, or at least in serious tension with, the caretaker convention.”
He said the Liberal government may face “the temptation … to ‘announce’ the appointment (of Gascon’s replacement) just before the writ is drawn up, but have it take effect during the campaign. This is what happened in the case of Justice Brown. It was inappropriate then, and would be inappropriate now.”
Trudeau spokesperson Chantal Gagnon told the Star that the government was starting the search immediately and expected to name a replacement well before the campaign starts.
She said the government was aware of Harper’s “precedent” in choosing a Supreme Court judge just days before the start of a campaign, and hoped to have Gascon’s replacement named “as soon as possible” so that there would be no “gap” between his departure and the start of the top court’s next hearing session in the fall.
Justice Minister David Lametti issued a statement praising Gascon.
Lametti said the Supreme Court “was enriched by his depth of expertise, hard work, collegiality and both the seriousness and humility with which he approached the Court’s enormous responsibilities. He was also a model of civility, treating parties and counsel appearing before him with utmost respect.”
“Throughout his career, Justice Gascon has made it a priority to instill his passion for the law and commitment to justice in others. Whether in delivering seminars to newly appointed judges, teaching at the Université du Québec à Montréal, McGill University and Barreau du Québec, or co-authoring books and articles on various areas of the law, Justice Gascon has made a lasting impact on Canada’s legal system and community. He testified in actions and in words to the richness that bijuralism brings to Canada’s legal tradition.”
Tonda MacCharles is an Ottawa-based reporter covering federal politics. Follow her on Twitter: @tondamacc