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Litigators’ champion celebrates five years at SCC, looks forward to five more years

Friday, May 08, 2020 @ 9:38 AM | By Cristin Schmitz

Last Updated: Friday, May 08, 2020 @ 11:11 AM


On a bench otherwise made up of ex-law deans, former senior civil servants and longtime judges, Justice Suzanne Côté’s unique brief, handed to her when she was appointed five years ago, requires her to convey the practising bar’s perspective to the Supreme Court of Canada, even when it sometimes takes her down solitary paths.

The formidable civil litigator, who practised for 34 years before she joined the top court straight from the Montreal bar in 2014, is well cast for her time-honoured role as the bar’s representative on the Supreme Court’s bench since her years of practice in the litigation trenches were more extensive — and more recent — than any of her colleagues.

It’s hardly surprising, therefore, that the 61-year-old judge’s contributions to the highest court thus far clearly show not only the prodigious appetite and strong constitution for hard work she honed over decades of preparing high-stakes civil cases, but also the keen eye of an experienced litigator who takes a meticulous approach to analyzing evidence and deciding cases.

“I like to read everything, this is my problem — and you know what, sometimes I have the feeling I have not read enough,” says the energetic jurist who typically works 60- to 80-hour weeks and, in her off hours, enjoys cooking, entertaining friends, reading and engaging in meditative tasks, with visible rewards, that give her time to think — like cleaning and ironing. “It’s not very intellectual but it helps me a lot,” she laughs.

Supreme Court of Canada Justice Suzanne Côté, seen where she once argued as counsel in the courtroom, says it’s essential that the top court provide clear guidance — but it need not be unanimous: ‘I see a certain value to [consensus] but for me, consensus and unanimity … [are] not essential.’

In a recent rare and wide-ranging interview that was granted to mark her completion last December of five years at the court, Justice Côté spoke of: the importance to her of following her conscience; maintaining judicial independence, not only from external pressure but also within the court; why she has dissented more than her colleagues; and why consensus and unanimity are not for her pre-eminent values. (See Part 2 of the interview.)

She also acknowledged that the court could (albeit not necessarily should) hear more cases — a plea that has been directed to her as the practising bar’s representative on the court, and which she has acceded to, more than once, by breaking with tradition, and publicly dissenting in favour of granting applications for leave to appeal.

Over her five years and five months at the court, Justice Côté has not only earned the mantle of the court’s “great dissenter,” she has also influenced, written or co-authored her share of the court’s most important decisions during that time, whether it was last year’s landmark overhaul of the judicial review framework in Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65; Bell Canada v. Canada(A.G.) 2019 SCC 66; her vote with the 5-4 majority in the speedy trial gamechanger R. v. Jordan 2016 SCC 27; or her authorship last year of two unanimous decisions that bolstered Canadians’ civil liberties, Fleming v. Ontario 2019 SCC 45 and Kosoian v. Société de transport de Montréal 2019 SCC 59.

Justice Côté, who most often is joined in dissenting by one or more other judges, is unfazed that the Supreme Court of Canada had record levels of disagreement last year and in 2018.

“I see a certain value to [consensus],” Justice Côté explains, citing the Vavilov trilogy as an example where the judges worked extremely hard to craft a unified approach.

“But for me, consensus and unanimity, it is not essential,” she says. “What is essential is to give guidance — and you can give guidance with majority opinions,” she remarks. “I’m not saying we should have dissents all the time. When we can have a consensus, we can have a consensus. But for me I think that [dissent] is healthy, and for me judicial independence requires that. … And judicial independence is not only independence from the outside, from external pressure. It is also independence within your institution. I feel when I write my opinion, majority or dissent, that I’m acting in accordance with my conscience.”

Nor do the judges’ frequent disagreements undermine their collegiality, Justice Côté suggests. “Some people equal collegiality with unanimity,” she observes. “That is not my definition. My definition of collegiality is to be able to discuss a case in a very open, transparent, and honest way. So for me, being collegial is to be able to tell a colleague, ‘I don’t share your views for the following reasons’. And I like a colleague saying to me, ‘Suzanne, I cannot share your views for the following reasons.’ Collegiality is not to say the same thing as my colleague. It is to be able to discuss, exchange, communicate, to be honest with one another about what we are thinking, and to see, at the end, if we can reach a common understanding.”

Of the unexpected turn her thriving legal career took Dec. 1, 2014, when Prime Minister Stephen Harper appointed her straight to the court from the bar, following in the footsteps of other leading counsel such as Ian Binnie and John Sopinka, Justice Côté told The Lawyer’s Daily it took her about a year to adjust to her new role as a judge, and to her more solitary existence in Ottawa.

“I can say now, after five years, that I’m feeling well about it,” she notes. “I’m very happy here, but I’m very happy because now I’m adapted. … It’s a different life here because I have had to accept the fact that I would not have clients anymore. I would not have witnesses to prepare any more. I would not have the pleasure of doing cross-examination, for example, and arguing cases … although I still argue with my colleagues,” she laughs. “But I must say now that I’m feeling quite comfortable in the function.”

Indeed Justice Côté expresses profound satisfaction with the opportunities she has had to help her fellow citizens with their legal troubles over these past five years. “I really like the files,” she says. “I was always in the private sector, and [when I was appointed] … I said it is time now that I do some public service for Canadians. I’m very proud of my five years, and I hope to celebrate my 10th year.”

Justice Côté’s track record so far shows she has often spoken in her own voice and followed her own direction, writing many judgments, including dissents, (although she is joined by other dissenters about two-thirds of time).

Doug Mitchell, IMK Advocates

“She is her own person. She believes she was appointed to express her opinion as to what the law is, and as to what the law should be,” says Doug Mitchell of Montreal’s IMK Advocates, who appears often before the Supreme Court.

Court watchers point out that Justice Côté’s deep experience as a litigator influences how she approaches cases, including her focus on the practical consequences of the court’s decisions.

“I think she brought a litigator’s perspective in that it’s very important for her that the clients feel that their case was heard and understood, and she brings a litigator’s perspective in that she is extremely well-prepared when she gets on the bench — she has reviewed the law and the evidence in the courts below thoroughly,” Mitchell observes.

University of Calgary law professor Lisa Silver told The Lawyer’s Daily Justice Côté’s judgments speak plainly and directly to lawyers, litigants and the public, as well as to her majority colleagues when she dissents. Silver cited R. v. Jones 2017 SCC 60, as an example of where Justice Côté speaks to trial counsel seeking direction from the top court. “It’s sharp, incisive and right on point,” Silver observes. “So often Supreme Court decisions speak over counsel, and not to counsel.”

Lisa Silver, University of Calgary law professor

Silver also points to Justice Côté’s hard-hitting dissent in West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal) 2018 SCC 22, where the judge politely, but forcefully, critiqued the majority’s refusal to engage with her arguments on a standard of review issue to which the parties had devoted attention.

“Her calling out of the majority in the West Fraser Mills decision is refreshingly frank and quite awesome,” Silver remarks. “I too am frustrated when the court ‘leaves for another day’ an important issue. This reflects the trial counsel in me that wants direction — now — on pressing issues. I feel it’s the same for Justice Côté — she understands the pressures of litigation and trial management.”

Justice Côté’s advocacy for the interests of litigants and counsel who seek access to the court is apparent from her willingness to depart publicly, on multiple occasions, from the court’s long-standing practice of issuing unanimous decisions on leave to appeal applications (she is the only judge on her bench to dissent, apart from Justice Michael Moldaver).

“I think she feels that the court could be more generous in the leaves that it grants — that’s the sense that I have,” Mitchell speculates. “She doesn’t dissent to not grant leave,” he emphasizes. “She dissents to grant leave.”

She has been a remarkable force, Silver says. “Justice Côté is definitely her own voice on the bench, and we should celebrate that.”

Justice Suzanne Côté (center) tells The Lawyer’s Daily Ottawa Bureau Chief Cristin Schmitz that when it comes to leave to appeal applications ‘I’m more of the philosophy that when there is doubt, I prefer to leave the doubt in favour of granting them, than denying.’

Here are condensed and edited excerpts from The Lawyer’s Daily’s exclusive interview with Justice Côté:

TLD: What is the touchstone for you when you’re looking at what your job is?

Côté: My goal is to improve the lives of Canadians in terms of everything which is legal. So if there is an area of law which is not clear, I would like to clarify it — but in a way which will make sense, and be practically acceptable and applicable.

TLD: What do you think makes a judge influential in this court with his or her judicial colleagues?

Côté: Oh my God (laughs). It’s a very tough question to answer. I think that the rigour of your analysis — even if the person decides not to follow [your thinking] at the end — will have an impact on the influence you will have on that person, maybe for the next case. Because if you’re considered by your colleagues as being a rigorous person, I think that you can have an influence. It does not mean that the person will agree all the time with you, but I think that is important. And also the fact that you are transparent with your colleagues.

TLD: What moves you to dissent, what are your criteria and what benefits are there to dissenting?

Côté: The benefit is that you have also strong arguments on the [minority] side, and these arguments can be brought [back to court] later, maybe in five years, maybe in 10 years, depending how strong the majority is. I think it is a message that: ‘Listen, it’s not sure that the law will stay like this forever, compared to a 9-0 decision.’ Also, the party who is losing the case 9-0, it’s more difficult to accept than when you lose 7-2 or 8-1 — although I don’t dissent just for that. A dissent shows to the parties that every argument has been considered, and shows that the ambiguities in a certain area of the law, maybe they are resolved because we have a majority opinion. But they are not resolved forever.

Sometimes when I dissented it was because I want to send a message to the legislator that the statutory provision, for instance that we had to interpret in a specific case, was not clear. The majority said the provision says ‘black.’ I said it is ‘white.’ In writing a dissent it is a message to the legislature: ‘Hey, there is a problem with this provision. It seems that people cannot agree on the interpretation, even with [analyzing the] text, context and purpose, so please clarify the provision because it seems that it brings problems.’ So a dissent can also serve that purpose, to put an end to debate by having a legislative amendment.

TLD: Are you frustrated when a majority judgment does not address your arguments in dissent? Do you feel it is appropriate for you to criticize the majority in this regard in your dissent?

Côté: If it’s polite, I think it is appropriate. What you see is what you get with me. When I think the case requires polite, but strong, positions, I don’t intend to depart from that. I’m always polite and courteous in my opinions and in my verbal exchanges with my colleagues and with the lawyers. But I want to be direct. I don’t want to use 10 sentences for what I can say in two sentences. Am I frustrated when I see the majority did not answer my arguments? Personally, I am not frustrated at all. In law, yes. But personally does it make a difference in my life? No. Do I like my colleague who does not answer to my argument? Yes. I like my colleague. Will I invite my colleague for a dinner to my place? Yes.

TLD: Do you ever feel pressure within the court to conform?

Côté: I think the best answer to ‘Did I feel any pressure?’ are my statistics [of dissent]. You see that I’m not the type of person to be influenced even if somebody said: ‘You should come with me.’ I will go with the person if I think it is the right decision to make. And if I don’t think it is the right decision to make, I’m not going to go with the person, and I’m going to write my own [opinion].

Some people equal collegiality with unanimity. That is not my definition. My definition of collegiality is to be able to discuss a case in a very open, transparent and honest way. So for me, [being] collegial is to be able to tell a colleague: ‘I don’t share your views for the following reasons.’ And I like a colleague saying to me: ‘Suzanne, I cannot share your views for the following reasons.’ Collegiality is not to say the same thing as my colleague. It is to be able to discuss, exchange, communicate, to be honest with one another about what we are thinking, and to see, at the end, if we can reach a common understanding.”

TLD: Do you sometimes water your wine?

Côté: When I can compromise, yes. Let’s say we have a case, and I would like to allow the appeal for three reasons which for me are very important. My colleague said, ‘No, I don’t agree with two of those reasons, but I think we can have a joint view on the first reason.’ I would compromise and say: ‘Okay, let’s do it for one reason.’ Of course, if I firmly believe, after my analysis, that an appeal should be, for instance, dismissed, I’m not going to compromise.

TLD: How often have you changed the view you had at the initial case conference after an appeal is argued and the time of your final decision?

Côté: I would say maybe eight to 10 times, but I say at the case conference: ‘I’m not sure. I need to think more. I need to discuss more with my law clerks. I need to see what the majority is going to write and then I’ll decide.’

TLD: Why do you think you have dissented more over time than your colleagues?

Côté: I have a different perspective, maybe, because of my background. An example is Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5 — the Redwater case. I’m talking about the practical consequences of the majority opinion and this is an area of the law where I worked [as a lawyer]: insolvency, bankruptcy, commercial litigation. The majority decision for me had practical consequences, so … I’m conscious of: How will we be able to apply that decision in the reality of our lives?

TLD: Can you tell me a bit about your philosophy of dissenting?

Côté: For me, consensus and unanimity, it is not essential. What is essential is [for the court] to give guidance. And you can give guidance with majority opinions.

I feel when I write my opinion, majority or dissent, that I’m acting in accordance with my conscience. It’s good to have the possibility to write dissenting opinions when you really believe that you cannot compromise and you cannot join the majority.

It’s a very healthy system that we have in Canada. In Europe, for instance, the judges have the right to express their disagreement around the table, but when the decision is released, it has to be unanimous, with nobody knowing how many were in favour. [The late constitutional scholar] Peter Hogg said [our] system is the best system — provided you have a clear majority … to give guidance, so the law from now on is what the majority said. I think what is not good would be to have, let’s say, a majority opinion, with four concurring opinions. That would be a disaster.

Dissents are the result of a transparent justice system and I’m in favour of such a system. I’m not saying we should have dissents all the time. When we can have a consensus, we can have a consensus. But for me I think that [dissent] is healthy, and for me judicial independence requires that. We have that very important principle in Canada of judicial independence. And judicial independence is not only independence from the outside, from external pressure. It is also independence within your institution.

TLD: Departing from the traditional practice at the Supreme Court, you have been dissenting on some leave applications, always in favour of granting leave. Are you hearing concerns from lawyers that they want the court to hear more cases and that the court’s intake of appeals by leave has been going down?

Côté: Yes, I heard some comments about that. Maybe some of them are expressing comments to me because they still see me as the only outside representative, the only one who has not been a judge before. I hear those concerns. I have looked at the statistics. Should we have granted more leaves? It’s clear that some leave applications do not meet the requirements. It is just [an effort to] correct an error, when the law is clear. I agree with [denying leave in such cases].

When I joined the court I’d been a litigator for 34 years, so every time somebody was coming to consult me [as a lawyer] I was trying to help the person. At the Supreme Court of Canada, we are not a court of correcting error. So what was frustrating for me on leave applications when I joined the court, was when I was of the view that the court of appeal below made a mistake … the litigator in me said, ‘Hey we need to correct that error. It is an injustice.’ But at the Supreme Court of Canada we can correct some errors — but it has to be in a case of public importance. And we cannot redo trials, and we cannot redo the hearing by the provincial court of appeal.

I spend a lot of time on leave applications. I have an open mind in granting leave and I’m more of the philosophy that when there is doubt, I prefer to leave the doubt in favour of granting them, than denying. But there are other cases where it’s very close. Where it could go one way or the other. It may happen that sometimes you have two or three judges who would like to grant leave, but the rule is that you need four votes to get leave. It’s the same thing at the U.S. Supreme Court. We just say [leave to appeal] ‘denied or granted’ and we don’t give reasons to explain why. It may happen that the case is very interesting but it is the first time a court of appeal is deciding on the issue so … we say it’s not ripe for consideration because we would like to have a couple of court of appeal decisions to see how it will evolve. When we have a clear controversy between courts of appeal of different jurisdictions, then it’s easier to get leave. In other cases, the legal question is very interesting, but the factual record we have in front of us does not permit us to grant leave.

TLD: Can the court handle more cases, given its workload?

Côté: Can we hear more cases? Of course we can. The reason [we don’t] is not because we have too much work. We are able to cope with the workload. We are conscious of the fact that we have fewer cases presently.

TLD: What gives you the most satisfaction when you think back on what you’ve done in these past five years?

Côté: I think I have made a difference. When I spoke at my swearing-in ceremony I said: I don’t know how long I will be here, but at the end I hope that when I leave the court that I will be remembered by just one thing — she made a difference for Canadians who are facing legal problems.

TLD: Will you go back to practising law after you leave the Supreme Court?

Côté: It will depend on what retired judges can do. I’m not intending to become a litigator anymore. I fully agree that we should not have the right, as retired [Supreme Court] judges, to litigate. I could do anything else that a lawyer can do, except being involved in litigation. Or I can, because I always had an appetite for business, be involved in a business. I’m thinking here one year at a time. I’m very proud of my five years [here] and I hope to celebrate my 10th year.

Photos of Justice Suzanne Côté by Caley Taylor Photography

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Cristin Schmitz at Cristin.Schmitz@lexisnexis.ca or at 613-820-2794.