Toronto lawyer challenges new Supreme Court Justice Marc Nadon's appointment -

Toronto lawyer challenges new Supreme Court Justice Marc Nadon’s appointment


OTTAWA – A Toronto lawyer is going to court to challenge the newest appointment to the Supreme Court of Canada.

Rocco Galati argues that Supreme Court Justice Marc Nadon — formerly a Federal Court of Appeal judge — does not qualify to fill one of three slots reserved for judges from Quebec on the top court.

Galati says only judges from Quebec’s appeals or superior courts, or lawyers who have belonged to the province’s bar for at least 10 years, can be appointed to the Supreme Court.

But former Supreme Court Justice Ian Binnie wrote a legal opinion for the federal government in support of Nadon’s appointment.

A spokeswoman for Justice Minister Peter MacKay defended Nadon’s appointment.

“Justice Nadon is qualified and we are certain he will serve the court with distinction,” Paloma Aguilar wrote in an emailed statement.

“Constitutional experts agree that the Supreme Court Act allows for a sitting Federal Court judge to be appointed to the Supreme Court of Canada — this includes the opinion of former Supreme Court Justice Ian Binnie.”

Galati is asking the court to compel the government to turn over Binnie’s legal opinion and any other advice it sought.

He is also seeking an interim order to stay Nadon’s appointment.

This is the second controversy that has cropped up around Nadon since Prime Minister Stephen Harper tapped him for the court less than two weeks ago.

The first kerfuffle came after he told a parliamentary committee the NHL’s Detroit Red Wings drafted him as a youngster.

He later clarified that the team never actually drafted him and that he was using the term in a much looser sense.


Toronto lawyer challenges new Supreme Court Justice Marc Nadon’s appointment

  1. From:

    we can read:
    “… Marc Nadon was admitted to the Barreau du Québec in 1974…”

    Which seems to show that he has been a member of the Quebec Bar for at least ten years.

    • Without having read what has actually has been filed, it seems that Galati has two arguments. First, that a federal court judge is neither a judge from the specifically named Quebec Superior Court nor the Quebec Court of Appeal, even if a federal court judge has been generally considered to be equivalent to “a judge from a superior court or court of appeal of a province”. Second, that someone having been a member of the bar in the province in question for at least 10 years must be a member of the bar at the time they are nominated to the SCC. If both arguments are accepted, as a federal court of appeal justice not currently called to the Quebec bar (but having been called to the Quebec bar for 20 years 20 years ago), Nadon would be ineligible.
      The first argument has been considered in a variety of general circumstances and decided against Galati, but he might have something when it comes to the specific references to the Quebec Superior Court or Quebec Court of Appeal. Probably not, but a good law school exam question.
      The second argument is based on a possible interpretation of the French text of the statute and is pretty weak, in my view. Galati would argue that a liberal interpretation means someone could retire from the bar after 10 years of practice and 20 years later be legitimately appointed, and avoiding such an absurd outcome requires strictly interpreting “inscrit” to mean “inscrit au moment”. I’m curious, however, if he has prior judicial authority to support the point.
      In passing, Galati’s argument would not have invalidated the nominations of Justice Rothstein and Justice Iaccobucci because that they were not representing Quebec.

      • Nice analysis.

        His effort seems too weak to be worthwhile bothering with.

        I have to wonder what ulterior motive he might have…

  2. shouldn’t the fact that Galati was a potential nominee for the Liberal Party of Canada be included in this story??