Globe and Mail | Nov. 22, 2004 | Kirk Makin

Recusal not the norm, Cotler says

It's unlikely Abella, a new judge on the Supreme Court, will remove herself from future cases to avoid accusations of bias, minister says

Monday, November 22, 2004 - Page A5

It is highly unlikely that Madam Justice Rosalie Abella of the Supreme Court of Canada will remove herself from future cases to prevent accusations of possible bias, Justice Minister Irwin Cotler said.

Nor, he said, should other Supreme Court judges pull themselves off cases in the future for similar reasons. "My sense is that you won't see it with any other judges, nor should you," he said in an interview in Toronto.

Speaking for the first time about a controversy that erupted around Judge Abella last week, Mr. Cotler said the public must accept that judges rise above any appearance of bias that may exist.

He said it would be a big mistake for people to expect Judge Abella to recuse herself in future cases because she recused herself from an upcoming deportation appeal involving former Rwandan political activist Léon Mugesera.

"I think in that sense, you could never have a bench in this country," Mr. Cotler said. "Once you start going down that line, people will have spoken on a variety of issues. In my view, I think that there would be no reason for judges to have to recuse themselves.

"The country should really be proud of the people on the bench and be utterly secure not only in their experience and expertise, but in the fairness of their judgment and integrity of their persons."

Like anyone else, Mr. Cotler said, judges have made decisions in their lives and have been involved in a variety of issues. "I think that it is almost impossible to get anybody to be appointed to a court who has not at some point either decided upon an issue or spoken about an issue."

Mr. Mugesera's lawyer, Guy Bertrand, has alleged that Judge Abella was appointed to the Supreme Court as part of a conspiracy to deport him.

Mr. Cotler said in the interview that several circumstances came together in the Mugesera case, including:

One of Judge Abella's sons is employed by the Department of Justice and may even have worked on the Mugesera case.

Judge Abella's husband, historian Irving Abella, has made public statements on the case.

The Canadian Jewish Congress, in which Prof. Abella has long played a leading role, has intervenor status in the Mugesera case.

Having been on the Supreme Court bench for just a few weeks, Judge Abella is particularly sensitive to the need to appear impartial.

"You have here a convergence of considerations I think are unique," Mr. Cotler said.

Mr. Mugesera faces deportation over allegations that he incited genocide and racial hatred in his home country of Rwanda in a 1992 speech. In 2003, the Federal Court of Appeal dismissed the allegations against Mr. Mugesera, but the federal government is appealing that decision.

Mr. Bertrand also alleged that Mr. Cotler was in a conflict of interest and abused his powers by bowing to pressure from the Canadian Jewish Congress to have Judge Abella appointed to the top court.

Recusal motions are infrequent, but far from unique. Judges sometimes avoid possible confrontations by taking themselves off a case in advance when it may involve an issue with which they have been previously involved.

With her particularly active background promoting social causes, Judge Abella was a sitting duck for controversy.

Reverberations in the legal community had barely died down over her appointment -- one of the most controversial Supreme Court appointments in recent memory -- when the Mugesera challenge became public.

Judge Abella's admirers point to her strong record as a legal reformer, her academic credentials and her unstinting support for human rights, children and women's rights.

However, after her appointment, many lawyers muttered in private that her friendship with Mr. Cotler and their shared advocacy for human rights had been key to her appointment. Critics accuse her of putting her strongly held beliefs first; of having produced a modest record of jurisprudence; and of departing from case law or striking down legislation to suit her views.

"When I looked at her record, she has been deferential to the government," Mr. Cotler said. "She has, I think, only twice held a governmental law or regulation unconstitutional. I read this and I said: 'I'll bet if people knew the empirical data here they would be very surprised. As I was.'

"She cares passionately about justice issues and she cares passionately about human rights and I think that's what the Canadian people care about."

Mr. Cotler said that soon after his appointment as Justice Minister, he faced a similarly sensitive situation in the case of Maher Arar, a Syrian Canadian deported by the United States to Syria, where he was held for a year and tortured on suspected ties to al-Qaeda. He was ultimately released and returned to Canada.

With distinct misgivings, Mr. Cotler said, he followed recommendations that he recuse himself from any involvement in the case to avoid any perception of bias. Mr. Cotler had given free counsel to Mr. Arar's family as a Liberal member of Parliament before he was appointed Justice Minister.

Mr. Cotler said he worried his recusal in the Arar case could lead to the expectation that he would bow out of any future, comparable cases. "I think I could have gone the other way," he said of his recusal. "I made it clear that was the only instance of its kind where I would recuse myself."