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Clément Gascon reflects on 5 years at SCC; says access to justice ‘huge challenge’ for bar, bench

Tuesday, October 29, 2019 @ 12:20 PM | By Cristin Schmitz

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Lawyers could face mandatory pro bono obligations if they don’t rise to the “huge challenge” of facilitating civil access to justice for Canadians who can’t afford their services, newly retired Supreme Court of Canada Justice Clément Gascon tells The Lawyer’s Daily.

“I think the solutions will not be by relying on public funding,” the 59-year-old former civil litigator from Montreal said in his first English-language interview since stepping down from the bench last month.

“The governments can … [assist] up to a point but they are facing challenges in terms of money — investment that has to be put on priorities like health and education that most would think would come before … the justice system,” he explains. “I think this is a huge challenge, not only for the judiciary, but … the legal profession as a whole and it’s tough to find the easy solution.”

During the wide-ranging interview the retired judge (who continues to work at the court on reserved decisions) candidly shared his views about: the top court’s declining unanimity; his toughest cases; mandatory bilingualism for Supreme Court judges; and what he finds makes for compelling advocacy, excellent law clerks and influence with fellow Supreme Court judges. (See part one of the exclusive interview here.)

Retired Supreme Court of Canada Justice Clément Gascon believes government spending won’t be the main contributor to expanding access to civil justice.

He says both the bench and bar have important roles to play in facilitating the public’s access to justice, including by paring down undue length and complexity in legal proceedings.

While he confesses to being “a bit astonished” at the stratospheric heights of some hourly fee rates, he quickly adds “who am I to criticize?” given that he has been away from the financial realities of law firms during 17 years on the bench.

Yet he also stresses that practising law “is more than only being a business” which offers most of its members “quite a decent living.”

Further, he believes the legal profession, rather than governments, must play the key role in facilitating civil access to justice for most Canadians.

(By contrast, see remarks earlier this year by then-Canadian Bar Association president, Raymond Adlington, who told The Lawyer’s Daily that adequate government funding, on a par with health and other social spending, for the courts, legal aid, and the justice system is the main solution to non-access to justice.)

The stakes are extremely high, Gascon says. “The legal profession cannot afford having a population lose faith in the system because it is not accessible,” he explains. “Clearly, to me, the legal profession will have to be proactive in this regard, perhaps by thinking a bit more about what I would call the societal role of the legal profession and realize and accept that they need to support the viability and legitimacy of a proper judicial system, because this is (a) at the heart of the legal profession and (b) it’s at the heart of …  democracy. And if people start thinking that the justice system is not accessible for them, then they lose faith in it, and ... if you lose faith in your justice system, then your democracy may become more fragile and that’s not good … for anybody … involved in the legal profession.”

The former judge notes the legal profession has been taking action on the problem, citing, for example, the increasing number of law firms doing more pro bono work. “So I think you have to be optimistic, and not think that the legal profession will stand still and wait until they are told or imposed” a solution by governments, he says.

As for legal regulators imposing pro bono obligations on lawyers — a very controversial idea that has been discussed at various law societies, he observes “I don’t think that per se it is a bad idea.”

He adds, however, “I would certainly prefer that the legal profession comes to that, without being in a situation where it had to be imposed. But I can see why it may be something that, at the end of the day, may end up being imposed, in order to make sure that this effort is spread amongst everybody. But I would say you see more and more, within more and more law firms, an effort to really make sure that their lawyers do devote sufficient time to those realities.”

Ultimately, he suggests, “this is a situation where law societies, where the bar, have to really assess how their members are reacting to the situation in order to assess whether it’s necessary or not to make it mandatory.”

Reflecting on his five years at the Supreme Court of Canada, and 12 years on the trial and appellate courts in Quebec, the hard-working and prolific jurist says he “liked every minute” of his time as a judge.

“I like thinking. I like reasoning. I like analyzing. I like writing,” he notes. “I am quite privileged to have been able to do that job for 17-some years at three levels.”

Retired Supreme Court of Canada Justice Clément Gascon said he ‘liked every minute’ of his time as a judge.

He says the court’s landmark Carter decision on medically assisted death — his first case after  he joined the top court in 2014 — was for him a very satisfying experience as all the judges collaborated to write their per curiam reasons. “It was a very collegial effort,” he notes. Carter v. Canada (A.G.) 2015 SCC 5 was also among the judgments that garnered the most public feedback to the court — most of it positive. “It’s delicate to express any view as to how it has played out, but I think that the decision … had been a big plus for many,” he observes.

Among the most legally difficult rulings, he says, was a 5-2 decision, on which the court reserved for nearly a year: Orphan Well Association v. Grant Thornton Ltd. 2019 SCC 5.

(The majority in that case required the trustee of a bankrupt Alberta oil and gas company to first use the money in the bankrupt’s estate to satisfy provincial requirements to remediate the company’s disowned non-producing oil and gas assets, ahead of making payments to the company’s creditors in line with the federal Bankruptcy and Insolvency Act.)

“A tough one that we’re going to be issuing between now and the moment I leave is the trilogy in administrative law,” he reveals. “That is legally a big challenge.”

He says that working with his law clerks was among his most enjoyable experiences at the court. He looked for clerks with strong legal minds, strong writing abilities and strong personalities capable of independent thinking. “I said to them: ‘I don’t want to have “yes” persons’,” he recalls. “I want law clerks that do not hesitate to challenge me … to let me know if they think differently.”

“Thinking differently” is an emerging trend at the court, whose nine judges issued more dissents and concurrences over the past three years than before (In split cases, Justice Gascon was predominantly in the majority. (Read more here.)

Asked if the court’s declining unanimity concerns him, the retired judge responds, “I think this is a reality that the court not should be concerned with, but should be aware of, and … as a court, cautious about that, because ... one of the roles of the court is to give proper direction to the law. And I certainly hope that, in the number of sets of reasons that we sometimes issue in given files, that at least there is a clear enough direction to the law for the citizens of Canada. Because if there is not clear direction, then we are missing part of our role. So I think that perhaps is the question mark that arises.”

Gascon says the court should not be expected to be unanimous in every appeal, and must maintain the right to voice dissent, while also discharging its role to give clear legal guidance. Chief Justice Richard Wagner is well aware of the court’s recent reduced unanimity, he advises. “We’ll have to see how things unfold, for instance, at the end of the current year and in the years to come. It is something that we cannot ignore.”

Asked what he believes makes for persuasive advocacy at the Supreme Court, the former litigator had one word of advice: “Focus.”

“I would say the strength of good appellate advocacy, be it oral or written, is what I would call ‘the courage to choose,’” he explains.

He advises appellate counsel to build their case around one, two or three issues only. “When somebody tells me a trial judge, or an appellate judge, made 10 legal errors in a 15-page judgment I say to myself, ‘you haven’t done your homework,’” he observes.

In his view, “proper preparation” also contributes to making a Supreme Court judge influential with his or her colleagues. “Knowledge, preparation, proper understanding of the given matter, but I would say that goes together with another key essential quality in a collegial court … the capacity to listen, the capacity to hear other views,” he explains. “The humility to realize that you don’t know everything and that you should always be open to listen to other views.”

“Obviously at the end of the day you can agree or disagree, that’s fine,” he adds. “But I think when you’re talking about influence, I think those that come prepared, and those that come with open minds and a capacity to listen, to me should be the ones colleagues really are looking up to.”

Asked whether he sees it as essential for all judges appointed to the court to be functionally bilingual in French and English, Gascon couches the issue in terms of the cumulative strengths of all the members of a collegial court.

“Certainly I think it’s a plus if you can be functional in both languages,” he explains. “But at the same time I think we have to be careful about too-drastic rules. You often have very, very strong candidates that may be unilingual. And if they have the willingness and volition to do what is required to become functionally [bilingual] I would hate to see the court lose the opportunity to have the strongest possible candidates,” he explains.

“We all have different strengths and weaknesses. Yes, maybe to some extent from that aspect, it puts a bit more of a burden on the francophone judges [to express themselves in English]. But I’m sure you can find other examples where a tougher burden is put on others. I think the beauty of having a collegial court is the strength of the institution and all of the elements. And thankfully everybody that comes to this court brings something that I hope is a little bit different from one to the other. The strength is the strength of the group.”

Asked if he would have turned down being nominated for the top court if the Conservative government of the day had required him to submit to public questioning in Parliament (as eight other Supreme Court nominees have done), he replies “no.”

Indeed he explains that when the government asked him whether he would be uncomfortable not to have a public hearing, he responded, “You decide the process. It’s not for me to say.”

(The Stephen Harper government opted not to have a Parliamentary hearing of Justice Gascon’s nomination to fill the vacancy left when the Supreme Court quashed the appointment of Federal Court of Appeal Justice Marc Nadon.)

In Gascon’s mind, the public question-and-answer sessions have “been a plus for the Supreme Court in terms of Canadians being able to know a bit better the candidates.”

However the former judge, who sees personal humility as a prerequisite for the bench, says the most salient aspect of the Supreme Court of Canada is not its individual members.

Many of the judges whose names were cited in his youth are largely unknown to the current crop of law students, he points out.

“We will all be forgotten,” he observes.  “But the institution will not. And to me that’s why … you should always be very thoughtful and respectful of this institution, because it’s a great institution … I feel privileged to have been part of this court.”

Photos of Justice Clément Gascon by Roy Grogan