supremecourtjudges

LOUIS LEBEL
Since joining the court from the Quebec Court of Appeal last January, the soft-spoken and relatively unknown former lawyer gained a reputation for the uncommonly kind tones in which he serves up otherwise devastating questions to lawyers.
Mr. Justice Louis LeBel has so far written two major decisions: one unanimous, one split, and both notable for their vivid style.
In the Araujo and Grandmaison wiretapping case, he was joined by all members of the court in upholding the admissibility of disputed wiretap evidence against a group of alleged cocaine dealers. In a strongly-worded opinion leavened with literary allusions to War and Peace and the Kama Sutra, Judge LeBel warned of dire threats to privacy arising from police wiretapping. The state must not engage in "fishing expeditions" against citizens, he wrote. The practical effects of the decision, however, were more muted than its prose. The decision restricted police wiretapping to cases where there is "no other reasonable investigative alternative," but did not require it to be a "last resort," as some civil libertarians had urged. Its effect was to stop short of throwing out disputed wiretap evidence against the dealers.
Judge LeBel's opinion in the case of developer Pacific National Investments sparked a terse dissent from several judges. He held that municipalities need not compensate private developers if they rezone land already under development. He self-consciously placed legal correctness above desirable consequences, acknowledging the outcome may seem "harsh" to affected developers, but adding that the law must outweigh such "policy" considerations. Three dissenting judges said the ruling would allow city councils to break contracts "with impunity."
Judge LeBel voted with the majority in most decisions last year, with two notable exceptions. Though some suspected him of socially conservative attitudes for his 1989 decision to grant an injunction against a Quebec woman seeking an abortion, he joined the dissenters in the Little Sisters Book and Art Emporium case who would have struck down the Customs Act on the grounds it allowed for the discriminatory treatment of importers of homosexual literature.
A concern for fair procedure was also reflected in his partial dissenting opinion in the case of Robin Blencoe, the B.C. Cabinet minister who sought to halt sexual harassment proceedings against him because the B.C. Human Rights Commission took too long to process the complaints. Judge LeBel led a group of dissenters who found an "abuse of process" in the delay, but rather than end the process, would have ordered an expedited hearing.

LOUISE ARBOUR
Appointed to the court in September, 1999, Madam Justice Louise Arbour immediately put into action criminal law expertise accrued as a war crimes prosecutor, law professor and investigator of prison abuses. While creating a new life in Ottawa after three years at the Hague, and putting in overtime on the public speaking circuit, Judge Arbour nonetheless managed to write a formidable stack of criminal opinions in her first year on the top bench.
The preliminary voting record of the former vice-president of the Canadian Civil Liberties Association and her high tally of dissents led some observers to suggest her concern for the rights of accused criminals may exceed that of the rest of the court.
Judge Arbour said in an interview with the National Post this month that her dissents were not the product of a particular conviction or ideology.
Her voting record shows dissents in a number of cases outside of criminal law, and suggests a wide-ranging preoccupation with fair process and procedure in various areas of law.
During her first year on the court she has often subjected the actions of state officials, not only police officers and judges, but also social workers, human rights commissioners and customs officials, to a stricter level of constitutional scrutiny than many of her colleagues.
Judge Arbour drew particular attention as the lone dissenter in the decision that upheld the arson conviction of Richard Floyd Oikle despite a confession he gave after being misled by police. Judge Arbour was the only judge to find that police had put "impermissible pressure on the accused to confess."
The sole dissenter in the second-degree murder case of Patrick Charlebois, Judge Arbour said his trial was prejudiced when the judge did not properly instruct the jury that the accused's refusal to submit to a second psychiatric test should not lead to negative conclusions about his credibility.
She was also the sole dissenter in the case of Renaud L�vesque, and would have admitted fresh evidence at the sentencing hearing of a man convicted of robbery and kidnapping. She emphasized judges must have all relevant information to tailor a sentence that best fits the offender.
She also joined the dissent in the case of Frederick Brooks, and would have overturned his conviction for the murder of an infant because a judge had not properly warned the jury about the perils of testimony from jailhouse informants.
In several criminal cases, though, she carried the day. In the unanimous Wust, Arthurs, and Arrance trilogy of cases, she wrote that a "mandatory minimum" sentence can be shortened by the amount of time served in pre-trial detention.
In the 5-4 Knoblauch decision, she ruled that a trial judge was within his rights to allow a mentally ill dangerous offender to serve his sentence in a psychiatric hospital.
In the Morrisey decision upholding the constitutionality of mandatory minimum sentences for negligent death with a fire arm, Judge Arbour penned a concurring judgment joined by Chief Justice McLachlin that supported mandatory minimum sentences in principle, but noted that the four-year sentence could be unconstitutionally "cruel" in a case of spousal abuse or for police officers who negligently kill in the line of duty.

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