A conversation with Louis LeBel
The newly retired Supreme Court judge on the selection process, the top court’s next challenges — and tips for counsel.
For Justice Louis LeBel, donning his robe and presiding over his last case as a Supreme Court of Canada judge “was intensely emotional. I wore the robe for 20 years as a lawyer and for 30 years in judicial office. I knew it was the end of a career, of a job that I very much enjoyed.
“What I learned about this job is that its main challenge is not really the volume of work, but the quality — the difficulty of the work, of identifying solutions.”
Justice LeBel retired on November 30, the day of his 75th birthday and almost 15 years after filling the vacancy left by Antonio Lamer on the country’s highest court. [Suzanne Côté, formerly one of Montreal’s top commercial litigators, has replaced LeBel.] Although LeBel was a highly respected judge, having sat on the Court of Appeal of Quebec since 1984, his appointment to the Supreme Court of Canada by the Chrétien government came as a surprise. LeBel had practised law in Quebec City, and traditionally the government nominated jurists from Montreal. Many court watchers had expected that either Justice Michel Robert or Justice Morris Fish would be chosen.
When reminded that newspapers at the time referred to him as a dark horse, LeBel lets escape a good-natured laugh that would no doubt strike a chord among the many jurists, former colleagues and observers of the legal scene whose surprise quickly gave way to respect.
“In a way, he was Quebec’s model representative on the Supreme Court,” said Sébastien Grammond, a law professor and former dean at the University of Ottawa who has appeared before the Court on numerous occasions. “He handles civil law with virtuosic ease.” Furthermore, “he promoted an idea of federalism that is generally more acceptable to the people of Quebec.”
Guy Pratte, a lawyer at Borden Ladner Gervais who has spent most of his career in Ontario, said, “What’s remarkable about LeBel’s career is that although he often fought for a clear distinction between civil law and common law — that we not always import common law concepts into civil law — he managed, somewhat paradoxically, to become recognized, admired even, not only in Quebec, but across Canada.”
A job fit for a generalist
In an interview in his office a few days before retiring, LeBel recalled the culture shock he felt when he first took his seat on Canada’s top court. “The diversity of issues, the fact that they involved law for the entire country and the need to immerse myself in two legal systems and two different languages” meant the learning curve was steep.
However, looking back, “what I learned about this job is that its main challenge is not really the volume of work, but the quality — the difficulty of the work, of identifying solutions,” he said.
LeBel’s interests have always been varied. He is drawn particularly to issues surrounding the harmonization of Canada’s two legal systems and the division of powers. “I very willingly acknowledge that I have a certain federalist vision that is more co-operative, based of course on respect for the powers of each level of government but also on a need for co-operation.”
LeBel has also taken great interest in other areas such as administrative law (the key judgment he wrote with Michel Bastarache in Dunsmuir in 2008 simplified standards of judicial review); labour law (the Health Services judgment held that collective bargaining is protected under freedom of association rights); and public and private international law. “I had always been very interested in aspects of criminal justice,” he said, “but had never practised criminal law, so when I joined the Court of Appeal, that was something new for me.”
On that topic, LeBel predicts that a number of Supreme Court challenges in the next few years will deal with the federal government’s toughening of criminal justice. “This will inevitably stir up some if not a lot of constitutional challenges and will likely lead to a re-examining of constitutional jurisprudence in different areas.”
Concerning the more sensitive issues that affected the Court in the last months of his term, such as the spat between the Prime Minister’s Office and Chief Justice Beverley McLachlin, LeBel was tight-lipped: “What was said was said. The incident is over.” However, he did comment on the selection process for Supreme Court judges, at a point where the process adopted in 2005 has been ignored for the last two appointments. “Considering the Supreme Court of Canada’s role . . . of constitutional adjudication,” it would be desirable to adopt “a system with procedures for consultation, examination and discussion of the candidates that is more open than the current system.”
‘Memory of an elephant’
Many of LeBel’s former colleagues describe him as a distinguished and sharp-witted legal intellectual. Marie Deschamps, who sat with him for almost 20 years on the Court of Appeal of Quebec and later on the Supreme Court, said, “He’s an intellectual resource for his colleagues. More importantly, he’s someone who can write on any matter that comes before generalist courts like these.”
Their former colleague Michel Bastarache described LeBel as industrious and thorough, but agreeable and extremely cultivated. “His intellectual curiosity is boundless,” said Bastarache. “He has more than 2,000 books at home, which he has actually read — they’re not decorations like they are for a lot of people. He’s very interested in history and culture and has read a lot of biographies, so when we travelled together, he always knew all kinds of things.”
“In terms of the law, Louis is the smartest man I know,” said Québec lawyer Henri Grondin, who was LeBel’s law partner for 20 years. “He’s a quick learner, but on top of that, he’s got the memory of an elephant. He can read something and retain it. For him, deliberating is easy because he remembers everything.”
LeBel will continue to feed his curiosity as judge in residence at Laval University, where he can continue his research in international law, individual liberties and — above all — the relationships between civil law and common law. In his retirement, LeBel is sure to occasionally think about the 15 years spent on the country’s highest court of law. Of his time there, LeBel said that it was “work that forces you to stretch your limits, to fully examine the solutions, problems and consequences of what we might do.”
Q: Do you have any advice for lawyers preparing to go before the Supreme Court?
A: “First, know your case inside out. Second, when presenting an argument to the Supreme Court of Canada, don’t read it out. Third, be ready to engage in a dialogue with the Court. You’ll see that arguments before the Court raise a lot of questions. We expect answers. One of the worst things a lawyer can do is dodge a question. You can choose to answer it later. But if a question is asked, remember that it’s not to embarrass you or to trip you up but to gain clarification, to test an idea. In short, commit fully and look objectively at all of the strengths and weaknesses of a case.”
Q: Do you have any advice for lawyers or judges who hope to one day sit on the Supreme Court — aside from be good at what they do?
A: “I would tell them that in terms of appointment, there are no guarantees. You need patience. And I would tell them, especially the judges, to simply continue doing their work, impartially, freely, and not try to please anyone. We have a process by which appointed judges often come from a court of appeal. However, you shouldn’t try to ‘win’ a promotion.”