Fireworks at the Supreme Court of Canada

Appointment showdown looms uneasily in holiday background
Galati, judges in opposing interveners' corners in front of Supreme Court of Canada

Christin Schmitz
December 20, 2013 Issue

Expect fireworks next month when Rocco Galati tells the Supreme Court that two of its nine members are illegally occupying their seats.

“Supreme Court or not, I don’t hold back,” says the colourful Toronto litigator, whose latest uphill legal challenge to what he calls an “ineffective, corrupt” judicial appointment system takes aim at the legality and constitutionality of the Harper government’s October 3 appointment of Supreme Court Justice Marc Nadon.

“A lot of us out here, meaning barristers, have quietly lost confidence in the administration of justice years ago,” Galati says. “In my 25 years I’ve seen the system go to hell, and because of our quiet, polite Canadian culture nobody likes to speak up about it.”

Galati certainly plans to “speak up about it” as an intervener at the Supreme Court’s January 15 hearing of the federal government’s Reference re Section 53 of the Supreme Court Act (aka the Nadon Reference), a case which only arose because of Galati’s unprecedented Federal Court challenge to Justice Nadon’s eligibility for appointment (the Federal Court has stayed that case pending the outcome of the Reference).

Galati answers “no” when asked whether he thinks he will get a fair hearing for his arguments, based on ss. 5 and 6 of the Supreme Court Act (SCA), that also impugn former Federal Court of Appeal judge Marshall Rothstein’s 2006 Supreme Court appointment, as well as the eligibility for appointment to the Supreme Court of all judges of the Federal Court of Appeal, Federal Court, Tax Court, and provincial courts across the land. (The Supreme Court informed counsel December 9 that Justice Rothstein recused himself from the Reference on November 15, but the court did not offer an explanation).

“The Reference should have been brought before Justice Nadon was proposed,” Galati insists. He points out that Department of Justice officials knew for years that federal court judges might be ineligible for the Supreme Court, particularly for a Quebec seat. Indeed, Justice Minister Peter MacKay publicly acknowledged there were contentious eligibility issues last August. However, Ottawa still elevated Justice Nadon from the Federal Court of Appeal in October to a Quebec seat on the Supreme Court, while trying to forestall questions by pointing to legal opinions it obtained from two ex-Supreme Court judges and a constitutional expert.

Galati was not impressed. “How can anybody have faith in the system that missed this?” he asks. “They don’t respect the law. The law is very clear to me. Everybody knew this was a problem, so the fact that [Justice Nadon] has been sworn in without anybody in the state apparatus flagging it, tells me I can’t have any confidence in the state apparatus, including the Supreme Court.”

Then why bother taking the matter to court, especially at his own expense? Galati likens it to having cancer.

“Do you have confidence the surgeon is going to save you? No,” he says. “But you’ve still got to go through the operation. It’s all you’ve got.”

He characterizes the case as another manifestation of a debased judicial appointment system that he has successfully challenged before in court, notably in 2011 when the Federal Court’s decades-old practice of hiring deputy judges over age 74 was declared illegal (with a domino effect in the Federal Court of Appeal, the Tax Court, and the Court Martial Court of Appeal.)

“We do not have a proper judicial appointment system,” Galati contends. “The proof is in the pudding in these cases that have crossed my path: the deputy judges case; the fact that this [federal] government has appointed nothing but white judges in the last 100-plus appointments; and the fact that something like this issue — which everybody knew was an issue — can get ignored and Justice Nadon be sworn in.”

Sébastien Grammond, dean of civil law at the University of Ottawa, says Galati’s challenge and the resulting Reference break new ground. There have been few, if any, court challenges to a judicial appointment in Canadian history.

“So that makes it a very dramatic case, and also it is…a very interesting question of statutory interpretation with big consequences,” he notes.

Grammond separately represents the intervener Canadian Association of Provincial Court Judges (CAPCJ), and three retired Federal Court of Appeal judges, who are intervening to oppose the position of Galati and probably that of the Attorney General of Quebec (at press time, the two intervener/respondents had not yet filed their arguments with the Supreme Court).

Grammond explains that the interpretation of ss. 5 and 6 of the SCA proposed by Mr. Galati in Federal Court “would effectively deprive them, and people like them, of the opportunity to be appointed to the Supreme Court and they think, as a matter of principle, and as matter of statutory interpretation, this is wrong.”

Should Galati’s arguments win the day, the impact would be felt nationwide, Grammond notes. Depending on what the Supreme Court says, eligibility to sit on its bench would be restricted to current members of the bar and current provincial superior court judges (including current provincial court of appeal judges). This would apply to appointments to Quebec’s three reserved seats, but possibly also to the remaining six seats from the rest of Canada.

Says Grammond, “the outcome of this Reference might define for the foreseeable future who is eligible for appointment to the Supreme Court and, in my clients’ view, the interpretation proposed by Mr. Galati, and presumably by the Government of Quebec, would result in essentially arbitrary exclusions of persons who might very well have all the requisite qualifications.”

Galati responds that “as a barrister” he finds the judges’ interventions to be “an embarrassing spectacle.”

“I think it should be irrelevant what the members of a court think what their career possibilities should be at the Supreme Court,” he says.

“That’s for Parliament and the executive, or maybe for constitutional amendment, but it’s not for them to come and rally as a union, to picket the court as a union, for their vested interests.”

Grammond replies “I think it’s entirely acceptable for people who are in the system, [and] who were in the system, to make representations about what factors should be taken into account in the interpretation of ss. 5 and 6.”