Marie Deschamps, CC, justice of the Supreme Court of Canada (2002–2012), Québec jurist, lawyer, educator (born 2 October 1952 in Repentigny, QC). As a Supreme Court judge, Deschamps distinguished herself by her principled willingness to dissent from the majority and by the number of incisive written opinions she presented on Supreme Court cases. She is also known for her service to the legal profession, especially for her support for the advancement of professional ethics and education.
Education and Early Career
After her admission to the Québec Bar in 1975, Deschamps practiced at a number of Québec law firms from 1975 to 1990. In the early part of her legal career she worked in legal aid litigating criminal cases. Her subsequent practice included cases in civil, commercial, and family law. She also participated in the development of the law by serving on advisory groups to reform Canada’s Bankruptcy Act (1986) and to counsel the Competition Tribunal (1986–1990).
Deschamps’s judicial career began with her appointment to the Québec Superior Court in 1990. In 1992, she was then appointed to the Québec Court of Appeal where she served for 10 years. She developed a particular expertise in complex cases of commercial and corporate law; however, she also pronounced judgments in several high-profile criminal cases.
In 2002, Prime MinisterJean Chrétien appointed Deschamps to the Supreme Court of Canada. As a puisne justice (a judge other than the Chief Justice of the court), Deschamps succeeded Clair L’Heureux-Dubé. She was the second woman to ascend to the Supreme Court from the Québec Court of Appeal.
During her 10 years of service on the Supreme Court, Deschamps wrote frequently on cases and earned a reputation for the concision and thoughtfulness of her commentary. Supreme Court judges may choose to write in concurrence (agreement) or in dissent (disagreement) with the final majority decision or with the written views of other judges. These explanations, arguments, and opinions — called reasons — are published by the Supreme Court as part of its formal judgment on a case. After only one year of service on the Supreme Court, Deschamps was already noted for offering more reasons and dissenting more frequently than any of her colleagues.
Deschamps retired from the judiciary on 7 August 2012. As of 31 July 2012, she had heard 682 cases and written 117 judgments. Of these, 27 were unanimous, 25 were majority, and 44 were dissents.
Prominent Supreme Court Cases
Deschamps participated in a number of Supreme Court cases that captured the attention of the Canadian press because of their broad implications for all Canadians.
In Canadian Foundation for Children, Youth and the Law v. Canada (2004), the Supreme Court ruled that, subject to a number of conditions, a reasonable degree of physical force can be used by parents, teachers, and caregivers on children. Deschamps was noted for her dissent from the majority ruling. Her reasons included her view that Section 43 of the Criminal Code (the corporal punishment defence) is unconstitutional because it allows for the violation of the equal rights of children as defined by the Charter of Rights and Freedoms.
In 2005, Deschamps played an influential role in Chaoulli v. Quebec, a widely controversial Supreme Court case testing the limits of Canada’s public health care system. A Québec patient and his doctor claimed that a long wait time for public access to treatment had violated the patient’s provincial charter rights, since Québec’s ban on private health insurance prevented the patient from purchasing timely treatment. Deschamps’s vote was decisive in favour of the court’s ruling that Québec’s ban on private health services is indeed unconstitutional according to the Québec Charter. However, in writing for the majority, she declined to break the additional deadlock that would have ruled on whether a ban on private access to health care also violates the Canadian Charter. This case, as well as Deschamps’s commentary on behalf of the court, sparked lively public debate about the role of privately funded care within a public health system.
In 2010, another Supreme Court case, Canada (Prime Minister) v. Khadr, garnered both praise and heated criticism in the public sphere. The court decided that it lacked the jurisdiction to order the federal government to repatriate Omar Khadr, a Canadian citizen detained by the US government at Guantanamo Bay. However, the court did declare that the Canadian government’s handling of Khadr’s treatment had violated his Charter rights. In this case Deschamps voted with a unanimous court.
In Crookes v. Newton (2011), the court ruled that website authors and publishers cannot be held responsible for defamatory materials linked to from their sites. Their view was based partly on their assertion that hyperlinking is not an act of publishing. Deschamps dissented from this position. Her reasons included the concern that website authors would consequently be free to deliberately promote defamatory material simply by linking to it.
Despite her reputation as an unapologetic dissenter, Deschamps has emphasized the value of collective and shared decision-making. She is known as a strong proponent of the Charter of Rights and Freedoms, calling it an essential tool for the Supreme Court’s work. She has also emphasized the non-legislative role of the court: its task is to interpret and apply the spirit and letter of the law. Her decisions have been guided by the rule that only legislators ought to make and change laws.
Likewise, Deschamps has insisted that the Supreme Court’s majority rulings are more important than the opinions of its individual judges. The court’s judgments, she has pointed out, reflect a variety of opinions and the work of every member of the court, including litigators. The value of the Supreme Court as the final court of appeal lies in the institution itself. She does acknowledge, however, that dissenting opinions are valuable for the alternative views they offer: referenced by lawyers in other cases, they can help the law to evolve.
More broadly, Deschamps has expressed concern about a growing societal tendency to emphasize individual over collective rights. She maintains that individual rights need absolute protection in some cases (e.g., injustices following from unreliable evidence in criminal cases); however, in other respects there will need to be limits on individual freedom in the interests of a workable and peaceful society.
Teaching and Service
Deschamps has long supported the development of the legal profession and has been particularly involved in higher education. Early in her career (1986–1991), she sat on boards at the Université de Montréal. She participated in advocacy seminars for over 25 years at the Université de Montréal and the Québec Bar. She has also been an adjunct professor at the Université de Sherbrooke since 2006 and at McGill University since 2012.
Her interest in the education of young legal professionals stems from her belief that professional ethics should be a foundational part of legal training. For similar reasons she ran the law clerk program at the Supreme Court for eight years.
Deschamps actively promotes access to justice for all Canadians. She is chair and trustee of Pro Bono Canada, a national non-profit organization that encourages and supports provincial programs connecting those in need with free legal assistance.
Honours and Awards
Honorary Doctor of Laws, Université de Montréal (2008)
Companion, Order of Canada (2013): for "her numerous contributions as a jurist and for her dedication to youth development"