Has "The Attitude" been foiled?

Rocco "The Attitude" Galati

PM moves to fast track Nadon issue

By Cristin Schmitz
November 1, 2013 Issue

Critics have questioned whether Ottawa’s one-two punch of tabling declaratory legislation and immediately referring its constitutionality to the Supreme Court will end questions about Justice Marc Nadon’s eligibility for a Quebec seat on the country’s highest court.

The Stephen Harper government, citing a pressing need “to restore the effective operation of the Supreme Court of Canada,” asked the top court October 22 to fast-track the Nadon Reference’s hearing to January 13 or “as soon thereafter as possible.”
 
If the court agrees and renders an immediate decision from the bench (with reasons to follow), Justice Nadon could take up his duties in time for the winter session, which opens January 14. He stepped aside October 8, after Toronto lawyer Rocco Galati challenged in Federal Court his eligibility to sit as a Quebec judge.

Most provincial and territorial attorneys general — including from Quebec, which has announced it will challenge Justice Nadon’s appointment — are expected to participate in the Reference, which asks whether a person “who was at any time an advocate of at least 10 years standing” at the Quebec bar can fill a Quebec vacancy on the court. It also asks whether Parliament can “enact legislation that requires that a person be or has previously been a barrister or advocate of at least 10 years standing at the bar of a province” as a condition of appointment to the Supreme Court, or whether Parliament can enact similarly worded Supreme Court Act (SCA) amendments tabled in the Commons October 22. Justice Nadon practised law in Quebec for almost two decades before sitting on the Federal Courts for 20 years.

Ottawa’s SCA amendments, embedded in a massive budget bill, purport to declare “for greater certainty” that the SCA’s ss. 5 and 6 eligibility requirements are to be interpreted as including jurists with at least 10 years with the Quebec bar at any time during their career. Ostensibly, this “clarification” would bind all courts if the Supreme Court finds the declaratory law to be constitutionally valid in the Reference case.

At press time, Galati told The Lawyers Weekly he may also ask to intervene while pursuing his own case, because Ottawa failed to address the core of his Federal Court challenge.

“It’s just sweeping the actual issue under the table,” Galati said. “They haven’t really asked the question that needs to be asked: Can a judge of the Federal Court of Appeal or the Federal Court ever be appointed to the Supreme Court of Canada? And I say, without a constitutional amendment, you can never appoint a person who’s been a Federal Court judge.”

Galati contends that since Justice Nadon was a Federal Court of Appeal judge when he was appointed October 3, he didn’t meet the SCA requirement of being a judge of a superior court of a province, or a barrister or advocate of at least 10 years’ standing at the bar of a province (s. 5), along with the s. 6 requirement that appointees to Quebec’s three seats “shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.”

The requirements are “disjunctive, in my view,” Galati said. “So you cannot be appointed as a judge and a former advocate. It’s either as a judge or as an advocate.”

According to Galati, appointing a Federal Court judge to a Quebec seat changes the Supreme Court’s “composition” within the meaning of the Constitution Act 1982, and therefore requires a prior constitutional amendment.

University of Ottawa law professor Adam Dodek said in his view the government’s legislation does clarify that Federal Court judges are generally eligible for appointment to the Supreme Court, and that they can also qualify as one of the three judges from Quebec.

“If passed, this amendment should allow Justice Nadon to take his seat and start hearing cases,” Dodek said. “There will continue to be those that challenge the validity of his appointment and of the government proceeding in this manner, but the presumption of constitutionality should prevail and allow Justice Nadon to hear cases while any challenges make their way through the court system.”

Irwin Cotler, Liberal Party critic for human rights and international justice, said the amendments should have been tabled as stand-alone legislation for study by the Commons justice committee, rather than being “buried in a budget bill” that is likely to be reviewed by the finance committee, with debate restricted at all stages of the legislative process.

“If the amendments are challenged [in court] on the basis that they require a constitutional amendment, it is not clear that speeding these changes through the Commons would help any,” Cotler told The Lawyers Weekly. “Moreover, there are legitimate policy concerns to be debated, such as whether up-to-date competence in Quebec’s civil law is assured in a person who may have been a Quebec lawyer for 10 years, but worked as a lawyer or judge in another province for more than 10 years after that.”

Cotler stressed “the changes here affect lawyers and judges in every province and territory, and there may be specific regional concerns that a one-size-fits-all solution does not address.”

NDP justice critic Françoise Boivin said she was pleased the government implemented the Barreau du Québec’s recent request to refer the matter to the Supreme Court for a speedy resolution. But the Quebec labour lawyer also cautioned there must be sufficient time to prepare the case, and ponder a decision.

“If you go too fast to please the government [and] to clean up [the government’s] mess, you give the impression that that’s all you’re doing,” Boivin said. “I think the questions are serious, and it will need to be well-studied, and I’m not even sure that [the legislation] will settle anything.”

Justice Minister Peter MacKay’s press secretary, Paloma Aguilar, said “our government strongly believes members of the Quebec bar should be entitled to the same rights as other provinces and territories in Canada. We are acting to resolve this matter as quickly as possible, and look forward to seeing Justice Nadon, a highly qualified individual, take his place on the court.”