XPost: can.politics, mtl.general, ab.politics   
   XPost: bc.politics   
   From: Panca@nyet.ca   
      
     October 5, 2014   
   Unvetted Quebec judge Clément Gascon takes Supreme Court seat   
   By SEAN FINE   
   Clément Gascon fills a spot that has been empty for a year, the longest   
   vacancy   
   in the court's 139-year history   
      
   The first judge in a decade to join the Supreme Court of Canada without any   
   parliamentary scrutiny takes his seat Monday, just in time for a fall session   
   featuring important cases on assisted suicide, religion in the public sphere   
   and an Ottawa-Quebec dispute over gun-registry data.   
      
   Justice Clément Gascon of Quebec is a commercial law expert with little   
   background in criminal law. No selection panel of parliamentarians put his name   
   on a shortlist. No public hearing was held in Parliament about his appointment.   
   And Prime Minister Stephen Harper did not cite any of his rulings when he named   
   the 54-year-old Montrealer to the court.   
      
   Justice Gascon, who has declined to give interviews since his appointment in   
   June, fills a spot that has been empty for a year, the longest vacancy in the   
   court's 139-year history. Mr. Harper had chosen Justice Marc Nadon for that   
   spot last September, but the Supreme Court ruled him ineligible.   
      
   After the Nadon rejection, the federal government chose not to use a panel made   
   up of government MPs and opposition members in winnowing down candidates to a   
   short list of three, or to hold a public hearing in Parliament at which the   
   judge could be questioned.   
      
   "One of the byproducts of the Nadon fiasco is 'we're going to blame the   
   process, instead of looking at ways to fix it. We're just going to appoint   
   whoever we want.' There's no sense of the considerations that fed into the   
   government's ultimate pick," University of Ottawa law professor Carissima   
   Mathen said.   
      
   Asked about the criticism, Clarissa Lamb, a spokesperson for Justice Minister   
   Peter MacKay said "these appointments have always been a matter for the   
   executive and continue to be."   
      
   Where Justice Nadon was described as a "vocal arch-conservative" by author   
   Rosemary Sexton – whose husband Edgar was a colleague of his on the Federal   
   Court of Appeal – Justice Gascon is more comfortable in applying precedent   
   than   
   in striking out in new directions, a Quebec observer said. "He is not going to   
   be pushed by his own thoughts about what the Constitution should be; he will be   
   trying to decipher what it is, and how to apply it to the detailed facts at   
   hand," lawyer Simon Potter of Montreal says. He describes him as a judge of   
   "absolute intellectual rigour."   
      
   In his first two weeks, he will almost certainly be asked to take part in three   
   intensely watched cases. The biggest of the three is a test of when judges   
   should defer to Parliament and when they should make policy. The Criminal Code   
   prohibits helping a person to die by suicide. The question for Justice Gascon   
   and the rest of the court is whether that prohibition is so shockingly unfair   
   to sick people in extreme pain that the government must scrap it.   
      
   The other two are Quebec cases. One asks whether the Saguenay municipal   
   council's use of Christian prayer before its meetings and its display of   
   Christian symbols violate a duty of neutrality and the constitutional rights of   
   non-believers. In the other, Quebec will try to persuade the Supreme Court that   
   it should support "co-operative federalism," and not allow the Conservative   
   government to destroy the data from its defunct long-gun registry. Quebec   
   wishes to use the data for its own registry.   
      
   And next month, a central feature of Mr. Harper's crime agenda, mandatory   
   minimum jail sentences for illegal gun possession, will be challenged as a form   
   of cruel and unusual punishment.   
      
   Justice Gascon is Mr. Harper's sixth appointee to a nine-member court that has   
   handed the Conservative government a series of stinging defeats, softening its   
   crime laws. He was not on the secret list of six candidates drawn up by the   
   Prime Minister's Office and the Justice Department a year ago, a list obtained   
   by The Globe.   
      
   Justice Gascon spent two years on the Quebec Court of Appeal, and 10 years on   
   the Superior Court. He did not sit on the Superior Court division that deals   
   with criminal cases. He wrote a 2009 ruling giving bank customers the right to   
   sue in a class action. A former labour lawyer with Heenan Blaikie in Montreal   
   who worked for the employer side, he ruled against the unions in a major 2003   
   challenge to federal employment insurance. Had he been vetted by a   
   parliamentary selection panel, he would have had to choose five of his rulings   
   to submit, and the public would have been able to read them after he was   
   chosen.   
      
   The son of a doctor, Justice Gascon is a father of three married to a Quebec   
   judge. He could spend two decades on the court; mandatory retirement age is 75.   
   He has led seminars for judges in how to write judgments.   
      
   Liberal MP Irwin Cotler, a former justice minister who developed the country's   
   first process for involving Parliament in the selection of Supreme Court judges   
   in 2004, said "secrecy" harms the integrity of the Supreme Court, and is unfair   
   to Parliament, to Quebec and to the judge himself.   
      
   "There's nothing here to hide, and everything to be gained by a public,   
   inclusive process," he said in an interview.   
   ____________________________________________________   
      
   Supreme Court process, abused   
   September 17, 2014   
      
      
   One leak to the media is no reason to abolish a worthwhile institution of   
   government, or just to suspend it. By that standard, what should we do with   
   cabinet? Or the Prime Minister's Office?   
      
   One leak to the media is no reason to abolish a worthwhile institution of   
   government, or just to suspend it. By that standard, what should we do with   
   cabinet? Or the Prime Minister's Office?   
      
   Last year, Prime Minister Stephen Harper announced that selection panels of MPs   
   from the major political parties would assess candidates being considered for   
   the Supreme Court of Canada, in consultation with leading judges and lawyers,   
   though the actual appointment would remain a Crown prerogative.   
      
   That was an admirable measure, diminishing the risk of partisan appointments to   
   the judiciary – a problem not unknown in Canadian history.   
      
   This change expanded on the new practice, starting in 2006, of actual nominees   
   for the Supreme Court answering some questions from a parliamentary committee.   
      
   Both these changes were in accord with the Conservatives' often professed   
   aspirations for reform and transparency.   
      
   Suddenly, these accomplishments are in doubt. The process was not used for the   
   latest appointment, of Justice Clément Gascon. Another Supreme Court judge   
   will   
   be retiring later this year, which means a pending appointment – but Minister   
      
   [continued in next message]   
      
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