Cory to leave Supreme Court
Specualtion favours Arbour as successor
Monday, January 18, 1999
Kirk Makin
Justice Reporter
Mr. Justice Peter Cory will retire from the Supreme Court of Canada in June, unleashing what is likely to be another onslaught of lobbying at the highest levels over his replacement.
"I am committed not to say anything -- and I promised not to -- until it is official," the 73-year-old, Ontario-born judge said in a brief interview yesterday. "It is very awkward."
However, the forthcoming edition of the Lawyers Weekly newspaper cites sources on the court as confirming Judge Cory has already forwarded a letter of resignation to the Department of Justice.
According to well-grounded convention, a replacement for Judge Cory will come from the ranks of the Ontario bar or judiciary. A similar situation last year led to several weeks of intense lobbying and behind-the-scenes gossip before Mr. Justice Ian Binnie was appointed to fill the vacancy.
With the ideological leanings of the court currently in an unusually fluid and unpredictable stage, the debate over his replacement promises to be as heated as it is significant.
Several members of the Ontario Court of Appeal have strong backing in the legal community, yet most legal observers believe the seat is being warmed for one person -- Madam Justice Louise Arbour.
These observers believe the job is there for the asking if the Ontario Court of Appeal judge is willing to cut short her three-year stint as chief prosecutor for the United Nation's International War Crimes Tribunal.
"If I were to guess, I think there will be tremendous pressure on her to take the job," said Don Stuart, a law professor at Queen's University. It may be now or never, Prof. Stuart said in an interview, because it could be many years before there is another vacancy for an appointee from Ontario.
In her two years in the job, Judge Arbour has maintained a high profile in diplomatic circles as well as in the international media as a result of her relentless drive to prosecute war criminals from Rwanda and the Balkans.
A fervent patriot and proud of his hard-earned bilingualism, Judge Cory is known for producing a heavy flow of judgments and for consistently gathering a majority of judges to support his positions.
Approachable and humble to a fault, Judge Cory had a tradition of trotting into his colleagues' offices each day to drop off a cookie.
"He is civil to an extent that has unfortunately become all too uncommon," said Alan Gold, president of the Criminal Lawyers Association. "In mannerism, he is the ideal judge. I don't think I have ever seen him raise his voice or display the slightest temper."
Prof. Stuart said that in appearance and temperament, Judge Cory was almost the spitting image of Fred Rogers of the long-running children's show, Mr. Roger's Neighbourhood.
The most famous decision authored by Judge Cory was probably in Regina v. Askov, in which the court tried to fix a limit on the point at which pretrial delays reach the point of violating the Charter of Rights guarantee to a fair and speedy trial.
Coming at a time when Ontario's court system was bloated with untried cases, the decision led to charges being stayed in almost 50,000 cases.
Prof. Stuart said the judgment may have ultimately had more impact than any other under the Charter, because it forced the provinces to restore funding to many aspects of the legal system.
Mr. Gold said Judge Cory is a rarity -- a judge who, commencing in 1974, worked his way up through the lower courts and the appeal court, finally reaching the top job in 1989.
Mr. Gold said this breadth of experience on the bench is an enormous asset.
"We would be very happy to see another Justice Cory," he said.
Prof. Stuart noted that while Judge Cory was a tough civil litigator in practice, on the Supreme Court bench he quickly became one of a group of judges who could often be counted on to fight for the rights of accused persons.
Judge Cory rarely interjects during appeal hearings, Prof. Stuart said, but when he does, it is usually to fire off a "zinging" question that gets to the heart of the issue.
Among the other major decisions Judge Cory has written are:
R v. Stillman, in which the court excluded DNA evidence linking a youth to the murder of a young girl because of the intrusive way police gathered it.