The Quebec Court of Appeal's Justice France Thibault is seen as a potential candidate for the Supreme Court of Canada. Click here to see full sized version.

The Supreme Court of Canada is poised for a major personnel shift with seven (soon to be eight) judges eligible to retire.

The impending retirements could give Prime Minister Stephen Harper, or whoever succeeds him as prime minister, a rare opportunity to overhaul the top court’s composition and thereby perhaps influence or reshape the court’s approach to its lawmaking role and the Constitution.

Closest to the mandatory retirement age of 75 right now are Quebec Justices Louis LeBel, 70, and Morris Fish, 71, and Ontario’s Justice Ian Binnie, 70, who is the court’s senior justice, next to Chief Justice Beverley McLachlin.

Justice Fish joined the high court less than seven years ago but the former top criminal lawyer has spent more than 20 years on the Bench and has an ill spouse who still lives in Montreal.

Justices Binnie and LeBel, respectively, marked their 12th and 10th anniversaries on the court last month. Both have proven to have large appetites for work, and work ethics to match. But after more than a decade doing a job Bertha Wilson described as “not so much the peak of a legal career as the ultimate form of public service,” they and their spouses are certainly thinking about what life may hold after the Supreme Court.

If he wants, Justice Binnie, a former topflight litigator from Toronto who enjoys beekeeping, could return to Bay Street and accept special assignments such as the public inquiries and high-level mediations Supreme Court alumni Jack Major, Frank Iacobucci, and Peter Cory have taken on.

Justice LeBel told The Lawyers Weekly he has not yet decided when he will retire.

But he called it “very natural” that judges and lawyers are starting to contemplate upcoming vacancies at the Supreme Court, with one source telling The Lawyers Weekly Justice LeBel and his wife have mused aloud about his leaving in 12 to 18 months.

“When you reach a certain age, rumours start floating around,” Justice LeBel laughed. “If I were to take such a decision [to retire] the first person who would be informed would be my wife, and after that my chief justice,” he said.

If tradition is followed, Justice LeBel’s eventual replacement will come from the seven judges of the Quebec Court of Appeal based in Quebec City, rather than from the Montreal-based contingent of the court.

“I will make my decision when the time comes,” remarked Justice LeBel. “I like what I am doing and I am still in good health.”

Only two judges of the court are not currently eligible for retirement — Justices Marie Deschamps of Montreal and Thomas Cromwell, who was appointed to the court’s Atlantic Canada seat by Harper in 2008.

Justice Cromwell’s earliest date to retire with a full judicial pension is Dec. 31, 2014.

But Justice Deschamps, 57, who was appointed by Prime Minister Chretien and commutes regularly to Montreal to be with her family, becomes eligible to retire July 1, 2011, when she will have served nine years on the top court and 21 years on the Bench.

Thus at least two, if not three, of the seats reserved by law for Quebec will open up in less than five years.

In Ontario it appears only one seat — Justice Binnie’s — is likely to become vacant in the near term. Although Justices Rosalie Abella, 63, and Louise Charron, 58, are eligible to retire, the Liberal appointees joined the court less than six years ago.

Nor do the court’s two judges from the west show signs of leaving, although both have been eligible to retire for some time. Chief Justice Beverley McLachlin, 66, seems to be as keen on her job as ever, as does Justice Marshall Rothstein, 69, who was only appointed to the high court by Harper four years ago.

So who are the potential replacements when the current judges step down? Contenders will preferably have sterling legal credentials and reputations. They must also be able to pass private scrutiny by an ad hoc all-party five-MP committee which is supposed to create a short list of candidates from which the prime minister picks the nominee, and public scrutiny by a larger all-party vetting committee of MPs — if the government of the day follows the new process the Conservatives pioneered with Justice Rothstein’s appointment.

Supreme Court appointments remain the prerogative of the prime minister. But if the new process is used in a minority government situation, the prime minister will need at least some opposition MPs to endorse his nominee. If the present government is in power when a vacancy arises, the approbation of Harper and/or his respective political lieutenants in Ontario and Quebec, Finance Minister Jim Flaherty and Natural Resources Minister Christian Paradis, will be key. Any candidate who is known to be liberal, or a known federal Liberal, will probably have to await a change in government. The views of Justice Minister Rob Nicholson and Chief Justice Beverley McLachlin will also be relevant.

In recent years, Courts of Appeal have been the primary pools for Supreme Court candidates.

In Ontario, Chief Justice Warren Winkler, an expert on class actions and labour law who was promoted by Harper from the Ontario Superior Court straight to the head of the Ontario Court of Appeal, would be an obvious choice. However he is 71, and does not speak French — a politically sensitive issue since many francophone MPs from all three opposition parties are insisting that all Supreme Court judges should be bilingual.

Younger members of the Ontario Court of Appeal, who are strong candidates for the high court and who hear appeals in French, include Justices Robert Blair and Robert Sharpe.

At the Quebec Court of Appeal Justices Pierre Dalphond and Nicole Duval Hesler are seen as potential candidates for a Montreal vacancy, as is Justice France Thibault for the Quebec City spot. All three are bilingual.

Since Justice Binnie was appointed directly to the high court from the Bar, as was his predecessor John Sopinka, it is possible that the government will consider plucking a leading litigator straight from practice.