When Lawyers May Not Be the Best Appointments to the Supreme Court

Jian Ghomeshi just hired a brilliant and fearless “shark” of a lawyer, Marie Henein, to defend him against criminal assault charges. There is a school of thought in legal ethics that maintains Henein is professionally obliged to play by the criminal defense playbook, right up to the point of transgression, and directly or indirectly enter the complainants’ sexual histories into evidence. If she can also get their medical records and the clinical notes of their therapists in, she must put all personal moral qualms aside and do everything within the confines of the law to get her client off. It’s called zealous advocacy.

The state is overwhelmingly better resourced in criminal cases. While it is regrettable that poor defendants in criminal cases don’t have access to such zealous advocacy against the state, that should not be held against the individual lawyers who ply their trade well. One school of legal ethicists would argue that Marie Henein’s character should not be judged for her brilliant advocacy of a man whose character is now held in low regard. Hiring a woman to embody and soften the principle of zealous advocacy was an obvious choice for Ghomeshi. And it seems hypocritical to call successful female lawyers to task on this point when male lawyers have traded up on these skills for centuries.

There is another school of legal ethics that stresses lawyers’ simultaneous duties to the public and the profession alongside their duty of loyalty to their client. Lawyers also have an obligation to ensure that their conduct does not bring the administration of justice into disrepute. And this duty also constrains the defense counsel in sexual assault cases who would attack the complainant with all they’ve got, including sexual histories and therapeutic records.

Arguments from the first school of thought in legal ethics would be in play around the now Honorable Madame Justice Côté’s advocacy for Big Tobacco when she was Big Tobacco’s lawyer. Following this line of argument, if there is a judgment call in question, it cannot be the judgment of the lawyer who acted as a brilliant jurist within the confines of the law. If there is a judgment call in question, it was Harper’s in his appointment of her.

Harper’s judgment call can be assessed outside of the framework of legal ethics. Given the notorious inability of ordinary citizens to pay for the costs of litigation these days, and given how Big Tobacco appears to have tasked its lawyers to drive up the costs of litigation exponentially, Harper’s choice sends a political message about the law: ordinary Canadians will remain exposed to the sharks Big Tobacco et co. can deploy to avoid justice.

The second school of legal ethics would emphasize the Rules of Professional Conduct for lawyers in cases of huge asymmetries of force and resource and stress that lawyers are precluded from instituting proceedings which, although legal in themselves, are brought solely for the purpose of injuring the other party. The role of counsel to Big Tobacco can be scrutinized from this perspective on the linkage of law to justice.

Harper’s executive decision to appoint Côté is no longer reviewable. She was sworn in as a Supreme Court justice on December 2, 2014. Those who think lawyers should be constrained by ethics alongside law will continue to weigh in on Harper’s judgment call about law’s relationship to justice. But Suzanne Côté’s role as Independent Counsel to the Douglas Inquiry raises a different set of ethical questions for lawyers and judges. And a whole lot of questions about whose judgment was exercised both in the Canadian Judicial Council’s inquiry into Lori Douglas and in the appointment of Côté to the Supreme Court within four business days of Douglas’ resignation.

Without her consent, photographs of Associate Chief Justice of Manitoba Lori Douglas were circulated. The photographs were of private, consensual sexual activity. A complaint of harassment by a recipient of the photos (who received them without Douglas’ knowledge or consent) was made to the Canadian Judicial Council – the body that investigates judicial conduct. The CJC dropped their inquiry into the harassment complaint, but on their own initiative decided to pursue an inquiry into whether the very existence of the photographs “out there” rendered Douglas an inappropriate appointee to the bench. The CJC, which has also received many complaints about the secretiveness of the process by which they judge judges, decided to make a test case for transparency of the “naked judge” complaint. They set up a panel of the Judicial Council to inquire into whether, indeed, the very existence of naked photographs “out there” is a grounds for removal of a judge.

The panel had its own lawyer to cross-examine witnesses in the process, George Macintosh. The Judicial Council also appointed “Independent Counsel”. The first counsel to occupy the latter position was Guy Pratte. He was troubled by how the panel’s lawyer was actively and aggressively attacking the Douglas case. Pratte (and independently Douglas’ lawyer, Sheila Block) applied to Federal Court for judicial review of the panel’s conduct. The Executive Director of the Judicial Council, Norman Sabourin, urged Pratte to withdraw his application. As Sabourin argued: “The maintenance of the relationship between independent counsel and the CJC cannot exist in the circumstances of a grave difference of opinion between Pratte and the CJC.” Pratte refused to withdraw his application and concluded, “I have no option but to resign as Independent Counsel.”

So the Judicial Council appointed Suzanne Côté to fill Pratte’s shoes. Côté promptly applied to have the photographs admitted into evidence for all of Douglas’ colleagues to pour over, the probity of such “evidence” far from evident. Next she applied to compel Douglas to release the clinical notes of her therapist into evidence. Less than two weeks ago, Douglas did what most victims of sexual assault do when faced by these tactics from defense counsel’s playbook: she quit.

The whole debacle has left a generation of young female jurists wondering whether they can ever be judges if there is the remotest chance that a compromising photograph of them could be distributed to the Internet without their consent. Certainly the message for victims of revenge porn is that they have lost all chances at a judicial career along with everything else they have lost.

Legal ethicists can argue both sides of whether Côté should be tarred with Big Tobacco. As with Henein, some will argue that Côté was doing, quite brilliantly, what lawyers are trained and required to do. We shouldn’t conflate the character of lawyers with the character of their clients. Others will argue that legal ethics precludes this type of shark-like conduct in lawyers. I want to put this debate about legal ethics to the side for a brief moment and ask a different set of questions:

Who was Côté’s client when she was independent counsel? Whose judgment was she exercising when she went after Douglas in this way? The Judicial Council’s policy on Independent Counsel, is that they do not act pursuant to the instructions of any client, but rather in accordance with the law and their best judgment of what is required in the public interest.

As a result of her unique position, and unlike Marie Henein, it could be said that Côté’s judgment calls in the Douglas Inquiry were exclusively her own. Côté’s judgments were formed outside of the solicitor/client framework. Those judgments are uniquely available for scrutiny, and should be judged outside of the professional margins of zealous advocacy. The proximity of Côté’s strategies and tactics to those of defense counsel in sexual assault trials leaves her open to public judgment in ways that Marie Henein is not.

Unlike lawyers who represent the vast majority of criminal defendants, Côté had at her disposal the most powerful resources of state to prosecute her case. Henein has a duty of loyalty to an individual accused, and that duty must be counterbalanced against her duty to the public and the legal profession. Côté’s paramount loyalty was to the public and the profession. As she was tasked with helping the Judicial Council determine whether or not to make a recommendation to remove a judge from office, she also had a duty of loyalty to the judiciary. In the context of these formidably solemn duties, it is not obtuse to say that Independent Counsel was, in fact, representing the state in the Douglas Inquiry. She had paradigmatically onerous obligations to ensure that her conduct did not bring the administration of justice into disrepute.

As a result of these features of her position as independent counsel, Côté’s appointment to the highest court in the land almost unavoidably brings with it a chastening message for both jurists and citizens, and most particularly for women. The brutalization of sexual assault complainants in the criminal courts has notoriously left women unwilling to turn to the law for justice. Côté simultaneously endorsed and embodied the shark-like ethics that has brought the administration of justice into ill repute in the court of public opinion. And Harper, by appointing Côté to the highest court in the land immediately after a brutal display of those ethics, sends out an ominous chill across the land.

Was Côté in fact an autonomous public agent? Executive Director of the Judicial Council, Norman Sabourin raised explicit arguments with Pratte that Independent Counsel was in a solicitor-client relationship and the client was the Judicial Council. He favoured the view that the role of Independent Counsel is “not that of a free-standing public office.” In that event, either Mr. Sabourin was the directing mind behind Côté’s approach to the Douglas Inquiry; or the Chair of the Council was the client, i.e., the Chief Justice of the Supreme Court of Canada, the same one who just privately swore Côté into her position on the Supreme Court on December 2, 2014, not a week after Harper appointed Côté. Not two weeks after Douglas resigned. Neither of these options generates a savory ethical signal for the law. They imply that Côté’s tactics were both unleashed and approved of by highest judicial institutions in the land.

I, personally, would like to see the retainer agreement under which Côté was hired. Ordinarily, of course, I would not be entitled to do so. The solicitor-client relationship is sacrosanct. However Federal Court Justice Mosley, in his judicial review of the Judicial Council, ruled that the role of Independent Counsel was inconsistent with the creation of a solicitor-client relationship with the Council. Unlike Pratte, Côté took a position quite malleable to the proposition that her client was the Council. Her view, is that she was in a solicitor-client relationship. Justice Mosley noted that he was not aware of the exact scope of the mandate given to Ms. Côté. But he affirmed that the role of Independent Counsel was to further, in the public interest, the objectives of the Council and its inquiry into whether Douglas should be removed.

The Judicial Council’s position on the Douglas Inquiry has been as transparency maximalists. Everything, including a female judge’s private sex life and her intimate mental life, was open for scrutiny. So why not Côté’s retainer? After all, by the terms of the Council’s policy on Independent Counsel, Côté was retained to exercise her best judgment of what was required in the public interest vis a vis the Douglas photographs. Aren’t all Canadian citizens, then, her clients? Isn’t this the paramount case for transparency?

Ordinarily I would not be interested in perusing the normally private legal documents of one of the few female judges in the 950 year history of the common law. Hesitation is particularly good counsel vis a vis those rare few at the top of the judicial hierarchy. Part of me wants to support women whenever they find themselves in that anomalous position, regardless of their, shall we say, “ambiguous” past. But the Honorable Madam Justice Côté’s very recent past has just been posted to the Internet on the Canadian Judicial Council’s web site. I should not want to ogle the documents that arose from Côté’s private exchanges with her client. Is it even more perverse that I want to see her client laid bare? I can so far only make out the blurriest of outlines. I can hardly tell who it is. I should probably resist the urge to peek and see what those images tell us about the appearance of justice.

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Professor Susan G. Drummond
Osgoode Hall Law School