JUSTICE

A disputed choice

A Supreme Court appointment sparks debate

D’ARCY JENISH November 23 1992
JUSTICE

A disputed choice

A Supreme Court appointment sparks debate

D’ARCY JENISH November 23 1992

A disputed choice

A Supreme Court appointment sparks debate

JUSTICE

In the mid-1980s, a Calgary lawyer named John (Jack) Major was on an Air Canada nonstop flight from London, England, to Calgary. Twenty minutes into the flight, the pilot announced that he was returning to London to pick up passengers who were stranded after their Toronto-bound Air Canada jet developed engine trouble. When the flight re-

sumea, me puoi saia mar ne was flying to Toronto and that the Calgary passengers would be booked on a connecting flight west. “It infuriated me,” Major, 61, recailed last week. “I wrote a note to the pilot saying that I would campaign among my fellow passengers for a class action against the airline.”

Ten minutes later the pilot announced that the flight would go directly to Calgary after all. According to fellow Calgary lawyer and Alberta Law Society president John Martland, the incident revealed a quick, independent mind— qualities that Prime Minister Brian Mulroney may have had in mind last week when he named Major to the Supreme Court of Canada.

Major, a lawyer for 34 years but with only 16 months as a lower court judge, will fill a vacancy on the court created in June when Mr.

Justice William Stevenson, 58, another Alberta jurist, resigned because of ill health. While the Canadian Bar Association and members of the Alberta legal profession praised the appointment, some academics and officials of women’s organizations argued that the Prime Minister should have named a woman, because only two of the nine current Supreme Court justices are women. But according to a number of legal experts, several female judges refused the offer to sit on the Supreme Court. Indeed, Martland said that one frequently mentioned candidate, Chief Justice Catherine Fraser of the Alberta Court of Appeal, declined the offer because she had held her current position for less than a year.

Some legal observers also criticized the appointment on the grounds that Major has long been connected with the Alberta Progressive Conservative Party, and because he has had relatively little experience on the bench. He was appointed to the Alberta Court of

Appeal in July, 1991, after spending his entire legal career in private practice. His wife, Hélène, grew up in Baie-Comeau, Que., where she knew Brian Mulroney.

Born in Mattawa, Ont., 320 km northwest of Ottawa, Major was educated at Montreal’s Loyola College and at the University of Toronto law school. At the time of his appointment to

the Supreme Court he was a senior partner in the respected Calgary law firm of Bennett Jones Verchere, whose partners include former Alberta premier Peter Lougheed. Major also served as the Alberta Conservative government’s senior counsel at the inquiry that examined the 1987 collapse of Edmontonbased Principal Group Ltd., which cost 67,000 small investors an estimated $150 million.

An avid skier, golfer and outdoorsman, he is married with four grown children. Major is well known within the Calgary legal profession for

his wit. He has, said a colleague, “an exquisite, acerbic sense of humor.” Many fellow lawyers spoke favorably of Major’s extensive legal experience and his courtroom abilities. Said Martland: “He has broad experience in criminal, domestic and labor law, and has fought very sophisticated legal battles.” Added Canadian Bar Association president Paule Gauthier: “Jack Major brings common sense, a brilliant mind and solid litigation experience to the Supreme Court.”

Still, critics contended that Mulroney should have continued to search for a female candidate until one was found. Said Rosalind Currie, a member of the steering committee of the Ottawa-based National Association of Women and the Law: “We are disappointed that a woman from a visible minority community or aboriginal community has not been appointed.” Court watchers also were trying last week to discern whether Major would influence the bench’s direction. Legal experts contend that under the influence of jurists such as former justice Bertha Wilson and former chief justice Brian Dickson, who both resigned in 1990, the court consistently favored individuals rather than governments in cases heard under the Charter of Rights and Freedoms. As the court enters its second decade of interpreting the law according to the 1982 charter, some observers say that it has begun to move in the opposite direction. And they added that Major’s appointment may reinforce that trend. Said Dale Gibson, a University of Alberta law professor: “It seems to me that the court has taken another step, if not to the right, at least to the middle. But I suspect to the right.” For his part, Major said that he believes that law should be made by legislatures, not the courts. Other critics said that weak appointments could damage the court. Said MP Russell MacLellan, the Liberal party justice critic: “Really the thin thread that has held this country together over the last five years or so has been the Supreme Court of Canada, in my opinion. All we need is a couple of bad appointments and that thread is going to start to unravel.”

But according to one Ottawa lawyer who has frequently appeared before the Supreme Court, the importance of ideology can be exaggerated. “People tend to think about right and left far too much,” he said. “It doesn’t work out that way. The only thing I would say is that he comes from a long background in private practice which adds an element of practicality to the court.” Still, as with all appointees to the highest court in the land, Major’s qualities will only emerge from the legal decisions that he helps to formulate in the years ahead.

D’ARCY JENISH with JOHN HOWSE in Calgary and LUKE FISHER in Ottawa

JOHN HOWSE

LUKE FISHER