Rights Activist Named to Top Canada Court

By Sheldon Gordon

Published August 08, 2003, issue of August 08, 2003.
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MONTREAL — Morris Fish, a 64-year-old judge widely respected for being a “mensch on the bench,” last week became the first Quebec Jew named to the Supreme Court of Canada.

He is only the second Jew ever appointed to the high court. The late Bora Laskin, an Ontarian, served as chief justice from 1972 until he retired in 1984.

While the Jewish community here has applauded the symbolism of Fish’s appointment, many legal observers say that the move’s effect on the political and cultural balance of the court is of greater significance, as the court prepares to hear a couple of potentially divisive landmark cases.

Fish, a Montreal native, is a former criminal lawyer who sat on the Quebec Court of Appeal for the last 14 years, earning a reputation as a protector of the rights of the accused. His elevation to the high court is a source of pride for many Jews here. “Although there are certainly many Jewish lawyers — and have been over the years — they are few and far between in terms of getting into the upper echelons,” said Keith Landy, national president of the Canadian Jewish Congress.

Although the Montreal Jewish community is proud that one of its own “made it to the top,” said Max Bernard, a Montreal lawyer and honorary vice-president of the Canadian Jewish Congress, Quebec Region, the ascension of Fish shouldn’t be seen in ethnic terms: “He’s just the best candidate for the job at the time.”

“It’s a very positive thing,” said University of Toronto law professor Ed Morgan. “There’s the symbolism of having a Jewish judge from Quebec. It says something about progress in Canadian society. It’s also very important that the prime minister had the courage to appoint an [English-speaking] judge from Quebec,” a predominantly French-speaking province.

The high court has long been the arbiter of disputes over federal versus provincial jurisdiction in the Canadian federation, but it has assumed a much higher profile since Parliament’s adoption of the Canadian Charter of Rights and Freedoms in 1982, making landmark rulings on human rights and equality cases. This has triggered a political debate — familiar to Americans — over judicial activism.

Despite Fish’s reputation as a liberal judge, Morgan does not expect a sea change in the court’s direction. “He is a mainstream jurist,” Morgan said. “We have a fairly centrist court at the moment. It has been more conservative at times and also more liberal at times.”

Fish arrives in time to adjudicate one of the top court’s most historic and controversial cases. Last month, the federal government referred to the court a draft bill that would redefine marriage and give legal recognition to same-sex unions. The court is giving provinces and groups that wish to intervene 24 weeks to file written briefs.

The province of Alberta and some conservative family-values groups have already indicated that they will intervene. They have contended that the federal government should have asked the court to rule on the constitutionality of the traditional, heterosexual-only definition of marriage; instead, the federal government has asked only whether the bill to legalize same-sex marriage is constitutional.

In another high-stakes case, Fish will be part of the panel that will hear a challenge to Quebec’s controversial law promoting the French language. Some French-speaking parents are opposing provisions in the law that deny them the right to send their children to an English-language public school. (Only families where at least one parent was educated in English have the right to send their children to an English-language public school.) The hearing is tentatively set for mid-January.

The court’s linguistic balance is always closely watched in such cases. Although Fish is fluently bilingual, his mother tongue is English and his appointment shifted the balance from a French-speaking majority on the nine-member court to an English-speaking majority. Quebec nationalists, quiet so far, are likely to be infuriated at Fish’s appointment if his vote undermines Quebec’s language law. He is the first English-speaker from Quebec to be named to the court in half a century.

Fish had been on a short list twice previously for the appointment, only to lose out because of considerations of geography and, more recently, gender. The selection of Supreme Court judges has been criticized as a closed-door, elitist process whereby the prime minister chooses from an informal list quietly submitted by the bar associations.

Some reformers have proposed that a parliamentary committee review Supreme Court appointments, but the University of Toronto’s Morgan said such a change is unlikely. “Most Canadians think you need some scrutiny; it shouldn’t be exclusively at the prime minister’s discretion. But I think the televised spectacle of U.S. nomination hearings has curbed the enthusiasm for a parliamentary review.”

Fish did not return calls seeking an interview.

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