'Helicopter Pete' to Supreme Court of Canada: "Can you hear me now? This is what the Supreme Court Act means!"

MacKay hints at replay for next vacancy
Cristin Schmitz
December 6, 2013 Issue

In a move apt to trigger another legal dust-up with Quebec, Justice Minister Peter MacKay is hinting that the federal government might appoint Justice Louis LeBel’s successor next year from the ranks of the Federal Court of Appeal or Federal Court.

While testifying November 21 before the Commons justice committee, MacKay said the bill affirming ex-Federal Court of Appeal Justice Marc Nadon’s eligibility for appointment to one of the Supreme Court’s three Quebec seats “was determined to be the most expeditious way, and most efficient way, of introducing declaratory provisions and ensuring they are enacted on time to guarantee that federal court judges can be considered in the process of filling upcoming Supreme Court vacancies, the first of which, you may be aware, arises next April.”

MacKay was apparently alluding to a Quebec vacancy, since the only Supreme Court member known to be departing next year is Justice Louis LeBel, a former Quebec Court of Appeal judge who bumps up against mandatory retirement November 30, 2014. He is expected to announce his departure next spring to give the Stephen Harper government time to choose his successor before the Supreme Court’s fall session.

At least two Quebecers currently on the Federal Court of Appeal, aboriginal law expert Robert Mainville, and Johanne Trudel, who was rumoured to have been shortlisted with Justice Nadon as a contender for the most recent Quebec vacancy, are seen as potential replacements for Justice LeBel.

But in light of the Quebec government’s insistence that Justice Nadon and other federal court judges are legally ineligible to sit as Quebec Supreme Court judges, MacKay’s intimation that a second federal court judge could soon fill one of Quebec’s three seats is seen to be provocative.

“I think it would certainly fan the flames,” said University of Ottawa law professor Carissima Mathen. “I think the reaction in Quebec to the current controversy [over Justice Nadon’s eligibility] has been pointed, and I think to the extent that the Quebec Court of Appeal is again passed over that will be seen by some people, I’m sure, as problematic.”

Mathen added: “A lot would depend on who the judge is. I would also note that if the government follows convention then one of these [Quebec] judges will be the next chief justice.”

Having watched MacKay testify, she said he gave a “strong hint” that the government is mulling the appointment of another federal court judge for a Quebec Supreme Court seat — notwithstanding that only a handful of federal court judges have ever been appointed to the top court and, before Justice Nadon, none of them occupied a Quebec seat.

“The thrust of the testimony was that they might like to change that,” Mathen told The Lawyers Weekly. “I was struck by the tenor of the justice minister’s testimony which seemed to indicate a strong preference for federal court justices to sit on the Supreme Court.”

The Harper government is under the gun to get the “Nadon” provisions in Bill C-4 — its latest omnibus budget implementation bill — passed before Parliament rises for the Christmas break this month. At press time the provisions were being fast-tracked through the Commons, while being studied by the Senate’s legal and constitutional affairs committee so it can pass them and they are proclaimed before the Supreme Court hears the Nadon Reference on January 15.

C-4’s declaratory provisions instruct the Supreme Court to interpret the eligibility requirements in the Supreme Court Act as having always authorized federal court judges to be appointed to the Supreme Court, including its three Quebec seats.

Senior jurists and prominent scholars are still vigorously debating whether federal court judges are in fact eligible, but MacKay made no bones at the Commons justice committee that he sees the declaratory law as Ottawa’s trump card in the Reference case.

When Liberal justice critic Sean Casey asked whether the justice minister “would be amenable to delaying the impact of these provisions to allow the Supreme Court to speak unimpeded,” MacKay replied, “not at all, absolutely not.”

“There is something called the supremacy of Parliament when it comes to the passing of laws,” MacKay emphasized. “We are telling the Supreme Court that this is what the legislation means.”

“So we’re going to ask [the Supreme Court what the Supreme Court Act means] and tell them at the same time?” Casey asked.

“You got it,” MacKay shot back. (emphasis CyberSmokeBlog's)

Testifying before the Commons justice committee November 19, University of Ottawa law professor Adam Dodek endorsed the Harper government’s view that C-4’s relevant provisions are declaratory, and thus do not substantively change the appointment eligibility requirements in ss. 5 and 6 of the Supreme Court Act.

He criticized, however, “the impropriety of legislating and referring the question [of the bill’s constitutionality] to the Supreme Court for its consideration at the same time.”

“I believe that this odd state of affairs put the members of this House in an untenable position,” Dodek said. “They are being asked to vote in favour of two provisions with the assurance by the government that such provisions are legal, indeed constitutional, while at the same time the government is questioning that very advice by directing a reference to the Supreme Court.”

On October 8 Justice Nadon announced he would not assume his Supreme Court duties “for the time being” after Toronto lawyer Rocco Galati challenged in Federal Court his eligibility to sit as a Quebec judge. Galati contends that the Supreme Court Act’s eligibility requirements for the three seats reserved for Quebec include only Quebec Court of Appeal or Superior Court judges, or jurists who have been members of the Quebec bar for at least 10 years immediately before their appointment to the court.

The federal government reacted October 22 by tabling the declaratory provisions in C-4 and immediately referring their constitutionality to the Supreme Court.

The bill stipulates that — and the Nadon Reference questions ask 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. Justice Nadon practised law in Quebec for almost two decades before sitting on the federal courts for 20 years.