"Wrecking Ball Rocco" rocks! Justice Mainville ..... "Doink!"

Federal Court of Appeal Justice Robert Mainville to ..... "Doink!" Quebec Court of Appeal 

Galati's challenge could rock appointment practices

Galati bid seeks to restrict Quebec candidates to current bar, quash Mainville promotion

By Cristin Schmitz
Friday, July 25 Issue

Universite de Montreal law professor Paul Daly sees the potential  for major ripple effects if Rocco Galati's challenge of Justice Robert Mainville's appointment to the Quebec Court of Appeal succeeds. (Wassim Njeim for The Lawyers Weekly)

Rocco Galati’s constitutional bid to quash the July 1 appointment of Federal Court of Appeal Justice Robert Mainville to the Quebec Court of Appeal could upset the whole federal judicial appointment apple cart if it succeeds, constitutional lawyers say.

The Toronto litigator and the Constitutional Rights Centre run by Paul Slansky have asked the Federal Court to declare that Federal Court of Appeal judges are ineligible for appointment to the Quebec Court of Appeal by virtue of s. 98 of the Constitution Act, 1867 (read together with s. 97) which stipulates that federally appointed Quebec judges “shall be selected from the Bar of that Province.”

Galati is using an argument parallel to that he used to persuade the Supreme Court to quash Federal Court of Appeal Justice Marc Nadon’s Supreme Court appointment last March.

He argues that since Justice Mainville isn’t currently a member of the Quebec bar, he can’t join the Quebec Court of Appeal. The Montreal aboriginal law expert spent 33 years at the Quebec bar before joining the Federal Court in 2009.

“I think Galati has a plausible claim — not maybe as strong as the one in the Nadon Reference — but certainly plausible,” said Université de Montréal law professor Paul Daly.

Galati’s attack is two-pronged: he seeks to declare invalid Justice Mainville’s Quebec Court of Appeal appointment based on s. 98 of the Constitution, and he wants the Federal Court to declare that Justice Mainville is ineligible to fill an upcoming Quebec vacancy on the Supreme Court of Canada in December.

If the court accepts that s. 98 refers only to current members of the bar, it could have major ripple effects on federal judicial appointments, Daly said.

Notably, judges of the Quebec provincial court — who historically are often “promoted” to their province’s trial and appellate superior courts — would likely become ineligible for those posts “even though they are very strong candidates for appointment,” Daly said. “I think it would be regrettable if they turned out to be collateral damage from this litigation.”

The fallout could extend further, contends a factum filed by the Canadian Association of Provincial Court Judges with the Supreme Court for the Nadon Reference last January.

On behalf of his clients, University of Ottawa civil law Dean Sébastien Grammond warned that if the courts were to accept the argument now being advanced in the Mainville case, “since Confederation, all appointments of superior court judges to courts of appeal would have been contrary to sections 97 and 98 of the Constitution Act, 1867.”

He noted that in 1867 and in 1875, the promotion of judges from one level of court to the other was well known. “It was certainly not the intention of the Fathers of Confederation to exclude sitting judges from the possibility of being promoted to a different court,” he said. “Thus when ss. 97 and 98 of theConstitution Act, 1867 require that judges ‘be selected from the Bar’ they do not set out a strict requirement of membership in the bar at the time of appointment, but rather require that the person appointed have been admitted to the bar some time before appointment to the bench. If it were otherwise, it would be constitutionally impermissible to appoint a superior court judge to the court of appeal, which is absurd.”

Grammond added: “Likewise, when s. 5 of the Supreme Court Act requires 10 years of bar membership, it means that a person appointed to the Supreme Court must have been called to the bar at least 10 years before being appointed. It does not require bar membership at the time of appointment.”

However, the Supreme Court ruled the opposite on the latter point in Reference re Supreme Court Act, ss. 5 and 6 [2014] S.C.J. No. 21 — the “Nadon Reference” — by interpreting ss. 5 and 6 of the Supreme Court Act as requiring that only current members of the Quebec bar or Quebec superior courts are eligible for a Quebec seat on the Supreme Court.

Galati argues in his June 15 notice of application that the Nadon Reference “is determinative of not just s. 6 of the Supreme Court Act, but also s. 98 of the Constitution Act, 1867 on the same issue.”

University of Ottawa law professor Carissima Mathen disagreed.

“I do not see an automatic mapping of the Nadon opinion here,” she said. “I think the interpretation of s. 98 of the Constitution Act, 1867 raises different issues than ss. 5 and 6 of the Supreme Court Act. The Supreme Court is a federal institution serving a bi-juridical nation, and created in the context of specific political historical realities. The confidence required of its Quebec judges seems distinctly different from the qualifications required for appointment to judicial office in the common law and civil law provinces. So…it seems to me that to the extent that past bar membership is OK for, say, Ontario, it probably is for Quebec too.”

However, Galati told The Lawyers Weekly “this issue was already resolved in the [Nadon] Reference. It’s the same wording in s. 98. Why this government cynically thinks it can simply again ignore the Constitution is beyond me.”

He said the upshot of s. 98 is that judges of the Federal Court of Appeal (and Federal Court and Tax Court) cannot be directly appointed to the superior courts of Quebec and would also be “hard-pressed” to be appointed to other provinces’ superior courts under s. 97 — which is similarly worded. If they wish to join those courts, “they can step down, write the bar exams and become members again,” Galati suggested.

Galati also does not accept that his s. 98 argument would bar elevations within the provincial superior courts. “There’s a difference between an appointment, and an elevation within the same court to the appellate level,” he said. “Your first appointment under s. 98 has to come from the bar. So if you were appointed to Quebec Superior Court from the Quebec bar, and then elevated to the [Quebec] Court of Appeal from the same court system, that’s fine. But you can’t have your first appointment straight to the Court of Appeal if you weren’t a member of the Quebec bar under s. 98. It’s clear wording.”

Whether Quebec provincial court judges are constitutionally eligible to be appointed to the Quebec superior courts is a more complex question, but arguably, “they can, because when they were appointed to the Quebec Court they had to be members of the bar so…if they’re elevated in what the Supreme Court of Canada calls our ‘unitary court system’ they are part of the same court system, under the Courts of Justice Act in Quebec,” Galati said.

In addition to his s. 98 challenge, Galati has accused the Harper government of appointing Justice Mainville to the Quebec Court of Appeal merely to make him eligible to replace Supreme Court Justice Louis LeBel of Quebec, who will retire November 30.

Daly said the nomination of Justice Mainville to the Supreme Court appears less plausible now given that his eligibility is unlikely to be determined before Justice LeBel retires, absent another expedited reference to the Supreme Court.

Mathen said she is “skeptical” about the s. 98 challenge to Justice Mainville’s Quebec Court of Appeal appointment, but “the rubber hits the road” if the prime minister appoints him to replace Justice LeBel.

“It seems to me that such an appointment could well be inconsistent with the spirit of the Nadon Reference and the constitutional status of the Supreme Court as regards Quebec,” she said.

“Given the circumstances, and particularly the possibility of a six-month ‘stop-over’ if Mainville replaces LeBel, I think there is potential for an argument based on the principle of judicial independence,” she added. “The Quebec Court of Appeal is owed respect by the executive branch. It seems clearly wrong to use it solely as a stopping point along the road to a goal completely disconnected from its needs and the executive function of appointment to it.”