When he practised law, says Michel Bastarache, adverse court decisions often made him wish he could have debated the issues with the judges before they made up their minds. Two years ago, his wish was modestly rewarded when the federal government appointed him to the New Brunswick Court of Appeal. Then last week, the 50year-old former bureaucrat, law school dean and insurance executive won the judicial grand prize.
In a move that both surprised and perplexed the nation’s legal community, Ottawa named Bastarache, a constitutional expert and avowed federalist to the Supreme Court of Canada. Cynics and separatists promptly accused Prime Minister Jean Chrétien of appointing an ideological ally in advance of hearing the federal case against Quebec’s self-asserted right to declare independence. Retorted Justice Minister Anne McLellan, who announced the appointment: “In Atlantic Canada does anyone think we would appoint someone who, as a matter of general political philosophy, did not believe in the federation?”
The selection of Bastarache to succeed New Brunswick’s Gérard La Forest, who retired in early September at age 71, was unprecedented—the seat traditionally reserved for the Atlantic provinces has always alternated between New Brunswick and Nova Scotia. For weeks, the speculation about La Forest’s successor revolved principally around Constance Glube, chief justice of the Nova Scotia Supreme Court’s trial division and Newfoundland Supreme Court justices Margaret Cameron, Derek Green and Leo Barry.
However, those who know Bastarache, the youngest of the court’s nine $189,000-ayear judges (average age: 64), have no reservations about his abilities. “He’s a top-notch lawyer who has had all-round experience,” said Chief Justice Antonio Lamer. Michel Doucet, the University of Moncton’s dean of law, said Bastarache “has strong opinions and he will defend them.” Fredericton
lawyer David Norman, who had argued several cases before Bastarache, said “he’s always well-prepared and gets to the gut of the matter quickly.” And Dawn Russell, the dean of the Dalhousie University law school in Halifax, said Bastarache “has a sophisticated understanding of public issues.”
The new Supreme Court jurist was born in Quebec City, where his father, Alfred, was completing a medical degree at Laval University. Before Michel was a year old, the family moved to southeastern New Brunswick and Alfred began practising rural medicine in the St-Antoine-Shediac region near Moncton. At age 20, Michel graduated from the University of Moncton with a BA and went on to get a law degree from the University of Montreal. That launched him on a career that included practising law in Ottawa (Chrétien had an office down the hall) and Saint John, N.B., and teaching at the universities of Ottawa and
Moncton. Bastarache served briefly in Ottawa as the secretary of state’s director general for promoting the official languages, and twice worked as a senior executive for the Moncton-based Assumption Mutual Life insurance company, which has strong ties to the Acadian community.
Late last Thursday, Bastarache, accompanied by his wife, Yolande, flew to Ottawa from Fredericton. There, he met his new colleagues over an omelette and salad lunch in the Supreme Court’s third-floor cafeteria (and discovered potential tennis opponents in justices Frank Iacobucci, John Sopinka and Peter Cory). Afterward, he said in an interview that when he was teaching law or writing about it, “I had trouble keeping my interest for long in a subject unless I thought it had some kind of social relevance to what was really happening. Here, I feel there is so much that can be done that will have this kind of effect.” His varied background, he said, might “enrich the debate we will have here among ourselves. If we have too many people who are alike on a court, we are more likely to arrive at a narrow interpretation of the law.” In at least one respect, Michel Bastarache’s background is like no other. In 1979, Yolande Bastarache gave birth to a daughter, Emilie. When she was only a few months old, the child was stricken with a convulsive disorder. Baffled specialists in Halifax, Montreal, Toronto and Johns Hopkins in Baltimore concluded that she had a degenerative disease of the central nervous system— although they could not offer a specific diagnosis. But if it was a genetic accident, they said, the odds of it happening again were a million-to-one. A second child, I Jean-François, was born in 1982, I fell ill while still an infant and, e wracked by the same epileptictype convulsions, died at 372. A year ago, Emilie died at 17.
While the children were alive, Bastarache said, “I think I became more or less a workaholic. I worked all the time, which sort of forced me to not think about what was happening, about the future. We read a lot, we were home a lot and I did a lot of legal writing because I wasn’t, you know, bringing my children to a hockey game or a rink. It was very hard morally and very hard physically.” The initial medical opinion had been that Emilie would die within two or three years. He and his wife were also told, Bastarache recalled, that the stress and exhaustion they had experienced might destroy their marriage. On both counts, the doctors were wrong.
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