JUSTICE MARIE DESCHAMPS ON #METOO, THE NEXT BIG LEGAL ISSUE, AND ADVICE FOR LAW STUDENTS
“Come on, ask me anything you want! What do you want to know?” Former Supreme Court Justice Marie Deschamps asked. The Hebrew University lecture hall was filled with 50 law students from across Canada who were on exchange to learn about international law. We were all a little dumbfounded by her openness; we didn’t know where to start.
Justice Marie Deschamps graduated from Université de Montréal in 1974 before working in numerous Quebec law firms. Her practice areas included litigation, corporate commercial, family, and criminal law. In 1983, Justice Deschamps completed her LLM at McGill and in 1990 she was appointed to the Quebec Superior Court. In 2002, Justice Deschamps was appointed by Jean Chrétien to the Supreme Court of Canada, where she remained for 10 years, and played an influential role on a number of notable cases including Chaoulli v Quebec, R v Malmo-Levine, and Multani v Commission scolaire Marguerite-Bourgeoys.
One student put his hand up and asked the question we were all dying to know: “What are you doing here?” It was certainly unexpected to meet a former Supreme Court of Canada Justice in Jerusalem.
After departing from the Supreme Court of Canada, Deschamps was appointed by the Government of Canada to conduct an external review into sexual assault in the Canadian Armed Forces. Her findings resulted in intense public outrage after the conclusions of her investigation were released. The report revealed an “underlying sexualized culture” within the Canadian Armed Forces, where sexual abuse and harassment were tolerated, and complaints were not taken seriously. In response, the Canadian Armed Forces had vowed to develop a plan to deal with these problems.
Justice Deschamps’ effort did not end in Canada. In 2015, the United Nations appointed her to lead a probe into sexual abuse of children by UN peacekeepers in Central African Republic. Her independent review led to groundbreaking revelations: French peacekeepers have been sexually abusing boys in refugee camps in exchange for food or money. Justice Deschamps’ inquiry indicated that the UN’s response to the abuse was problematic and ineffective.
Justice Deschamps’ work also caught the attention of the Israeli government. Conscription in Israel is compulsory for all citizens except Haredi (ultra-orthodox) Jews and Arabic citizens, and sexual assault is becoming an increasing concern in the Israeli military. There has been a 43% increase in complaints concerning sexual assault in the past five years. Resultingly, Deschamps was invited to Israel to share her expertise on investigating sexual abuse in the armed forces and to advise on a solution.
I approached Justice Deschamps after the guest lecture and she was very receptive about giving an interview and sharing her experiences. “I will be flying back to Canada soon would you like to skype or speak on the phone?”. I took down her contact information and scurried away before interrupting her lunch break any longer. We stayed in contact by email throughout the summer. The interview questions were prepared by the Moot Times managing editor Joseph Beller and myself. A full-length version of the conversation follows:
Ivy Yang: Before becoming a judge, you studied law at the Université de Montréal. At that point, there had never been a female judge on the SCC. During that time in law school, did you have judicial aspirations? What was your tentative plan for your legal career?
Justice Marie Deschamps: When I was in law school, the ratio of women/men was one woman for every three men. There were female university professors and there were already a few female judges sitting at the Quebec Superior Court (which is the equivalent of the Court of Queen’s Bench of Alberta). As such, while there were fewer women than men, the numbers were not so small as to make gender an issue for me. At the time, I took the number imbalance as a given and accepted it. My sensitivity to power imbalances based on gender only came up after I started to work in the legal field.
When I was in law school, I did not look to the bench as a possible next step let alone as a career goal. I only saw myself as a litigator, preferably doing legal aid work. For the rest, I only wanted to earn sufficient money to earn my living. In fact, in three of my four career moves, I earned less money following the change than if I had stayed on. My main motive to change positions was to explore different environments.
Ivy Yang: You had a wide range of interests at the beginning of your career, starting in legal aid criminal work, moving to a more general practice with commercial, civil, and family law; how did that wide range of practice helps you transition into the judiciary?
Justice Marie Deschamps: Having been exposed to a broad range of issues is an asset for a judge. This said, every court case is different and judges must seek to analyze the facts and law at hand with an open mind. According to a popular saying, judges know a little on a lot of issues, but professors know a lot on a few issues. Judges do not usually have the luxury of spending years of research on cases that come before them. They must work with the material that is provided by the parties or with whatever comes within the purview of the notion of judicial notice.
Ivy Yang: When Justice Wilson was appointed as the first female SCC judge, you were just finishing your Masters at McGill. What was the environment like when we hit that milestone? Later, you became the second female judge to ascend from the Quebec CA after L'Heureux Dubé?
Justice Marie Deschamps: When I finished my Masters at McGill, I was working full time as a litigator and had just been made partner in what later became Dentons. As such, my energy was focused on my clients and my firm much more than on the number of women on the bench. When I was appointed at the Quebec Court of Appeal, I became more sensitive to the issue of women as judges, and this increased when I succeeded to Justice L’Heureux-Dubé. However, while Justice L’Heureux-Dubé was known for her championing of women’s issues, my range of interests remained very broad (while also including women’s issues).
Ivy Yang: L'Heureux Dubé is casually referred to as 'the great dissenter' because of her high percentage of dissenting judgements, you similarly had a high rate of dissenting judgements over your time. Can you speak to the process of writing decisions and how the court comes to them? How do the other judges typically respond to such willingness to depart from the majority view? How did this change from L'Heureux Dubé's time to yours?
Justice Marie Deschamps: At the Supreme Court of Canada, cases are usually discussed immediately after the hearing and the Chief Justice takes note of the preliminary views of judges. In a divided case, the Chief will usually assign drafting the majority opinion to one of the judges who has shown interest in writing on the issues at hand. Dissenters will often indicate their intent to write once the Chief Justice has distributed the cases. Because of such a post-hearing discussion, dissenting opinions do not come as a surprise and the right to dissent is well entrenched in our culture. On that front, neither the culture nor the system has really changed since Justice L’Heureux-Dubé’s time.
"Without communication skills, the ideas are not as easily propagated, and without imagination it is more difficult to solve difficult situations." - Justice Marie Deschamps
Ivy Yang: Compassion fatigue in the legal profession is an emerging concern, with a recent study showing almost 2/3 of judges experience symptoms during their career. How have you dealt with these issues and what advice can you give to lawyers who enter fields with high levels of vicarious trauma?
Justice Marie Deschamps: Over my 22 years as judge, I only sat for two years at the Quebec Superior Court. Since appellate court judges have general jurisdiction and face facts through the prism of written documents, they are probably less exposed a as family or youth court judges who hear witnesses recount dramatic events over and over. To lawyers entering specialized fields, I can only point out to the fact that each case needs their full and complete dedication. If they feel fatigue, they ought to pause. If they cannot look at a case with a fresh eye, they should refer it to a colleague.
Ivy Yang: Many of your high-profile judgements are read in first year Constitutional law classes (Chaoulli, Canadian Federation for Children, Khadr, Malmo-Levine). How did the interpretation of the Charter evolve over your time, and how do you see it continuing to evolve? How do reinterpretations of Charter rights such as in the recent Carter decision display the changing values of society?
Justice Marie Deschamps: Constitutional law is an important part of the work of the Supreme Court of Canada. The time I sat at the Supreme Court was one of consolidation and refinement of the jurisprudence generated by the Dickson and Lamer courts. After the almost complete turnover of judges (of all the judges I sat with, only Justice Abella is left), it is to be expected that various decisions will be revisited (not only the early decisions, but also the more recent ones).
"Ethics are fundamental to interpreting rules in a way that protects young lawyers’ development in a manner that is consistent with social diversity." - Justice Marie Deschamps
Ivy Yang: Was there a particularly difficult decision you could speak about? Do you have a 'favorite' judgment/case?
Justice Marie Deschamps: There were a number of difficult decisions during my time as, I assume, during any judge’s term. Some decisions ended up as rendered by the Court as opposed to those where the drafters are identified. Others were highly divided, such as Reference re Assisted Human Reproduction Act, 210 SCC 61,  3 S.C.R. 457.
One judgment I am proud the Court rendered is Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45,  2 S.C.R. 524. This case opens up standing in public interest litigation and has an enormous potential for access to justice for those who do not have the means to bring important cases to the courts.
Ivy Yang: You have clearly succeeded in your retirement goal of ''exploring other ways of serving society." Can you talk about your review on sexual misconduct in the military? In your opinion, how well has the military plan of action worked? Additionally, your work with the UN probing sexual abuse by peacekeepers has been a significant undertaking. Can you speak on the issues that the probe has uncovered? What is the plan of action to curb this conduct?
Justice Marie Deschamps: The review on sexual misconduct in the Canadian Forces was conducted well before the #metoo movement. It is not surprising that the abuses surfaced in the Canadian Forces before they did in civil society. However, the same power dynamics present in the military are also at play in civil society. No matter how hard the leaders in charge work on the issue, it will take time before we can see changes. What makes me hopeful is that the leaders are in fact working on it.
The UN presents a different challenge because of the amalgam of different cultures, the dispersion of the leadership among different agencies and entities around the globe, and the size and complexity of the organization. These factors make it difficult to ensure buy-in and implement changes. Therefore, despite the apparent commitment of successive Secretary-Generals, my optimism on the rate at which positive changes can be implemented at the UN is low.
Ivy Yang: What new or burgeoning areas of law do you see arising in the future? What do you think will be the next big political legal issue?
Justice Marie Deschamps: Privacy has been a preoccupation for a while. The importance of the topic is growing and is likely to be amongst the most important upcoming issues. There is already so much personal data floating in banks that is hard to locate, it is difficult to conceive how some order can be restored. World leaders will need to come together and creativity will be needed to tackle the issue.
Ivy Yang: You've spoken about the need for communication skills and the importance of ethics when teaching young lawyers, what advice would you give law students as they begin to enter their legal careers?
Justice Marie Deschamps: I am more convinced than ever that communication skills are crucial to success in the 21st century. I used to talk about imagination too. Without communication skills, the ideas are not as easily propagated, and without imagination it is more difficult to solve difficult situations. Ethics are fundamental to interpreting rules in a way that protects young lawyers’ development in a manner that is consistent with social diversity. Thus, together with ethics, communication and imagination enable jurists to disseminate their ideas and allow law to develop in a way that helps build a better society.
By Ivy Yang & Joseph Beller