OTTAWA – It’s been a tough first week for Canada’s newest Supreme Court justice, who says he won’t participate in matters before the court just yet because his appointment is now the subject of a legal challenge.
A high-profile Toronto lawyer has filed an application for judicial review, contesting the appointment of Marc Nadon, a former Federal Court and Federal Court of Appeal judge from Quebec who was sworn in as the newest member of the Supreme Court earlier this week.
Rocco Galati says that according to the Supreme Court Act, Nadon cannot sit on the high court. Galati argues the act limits Quebec’s three Supreme Court appointments to members of the Quebec Court of Appeal, superior justices of Quebec and Quebec lawyers with 10 years’ standing at the bar “just prior to nomination for appointment.”
Nadon, 64, most recently spent 12 years as a Federal Court of Appeal judge and eight years on the Federal Court before that. Prior to becoming a judge, he spent two decades as a lawyer specializing in maritime and transportation law at Fasken Martineau Walker in Montreal.
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It’s an issue Justice Minister Peter MacKay raised several months ago, but which the government tried to tackle prior to his nomination.
The government sought a legal opinion from former Supreme Court Justice Ian Binnie, who concluded a member of the Federal Court with at least 10 years’ experience as a member of the Quebec bar could be appointed to the Supreme Court. Retired Supreme Court Justice Louise Charron and constitutional expert Peter Hogg both reviewed and agreed with the opinion.
But in his application for judicial review, Galati argues that wasn’t enough. MacKay was “duty bound to bring a reference on the issue” to the Supreme Court rather than simply commission a “private legal opinion,” according to the application filed this week in Federal Court.
The application names Prime Minister Stephen Harper, Governor General David Johnston, Chief Justice Beverley McLaughlin, Justice Nadon, and MacKay.
“The appointment of Federal Court … judges under Sect. 6 of the Supreme Court Act as ‘Quebec’ judges of the Supreme Court of Canada, constitutes a change to ‘the composition’ of the Supreme Court of Canada and would require a constitutional amendment,” the application argues, adding the appointment is a “breach” of Canadian “federalism, constitutionalism and rule of law” and raises questions about “a fair and independent judiciary.”
Nadon was officially sworn in at a private ceremony Monday, two days before the Supreme Court was to resume hearing cases following the summer break. But in a statement issued through the Supreme Court Tuesday, Nadon indicated he would not participate “for the time being.”
Galati ultimately wants his oath to be “declared invalid and quashed.
“If the court doesn’t want to touch his appointment because it’s a fait accomplit, we still say that they have to clarify the law,” said Galati, who is well known for representing a number of terrorism suspects including Abdurahman Khadr, the older brother of Omar Khadr. Nadon was involved in the case of Omar Khadr: while his two colleagues upheld a ruling ordering the government to repatriate the since-convicted terrorist, who was at the time being held in Guantanamo Bay, Cuba, Nadon sided with the government and suggested the Federal Court would be exceeding its jurisdiction if it ordered his repatriation.
Galati is also among a handful of lawyers involved with the Constitutional Rights Centre, which is listed as an applicant in the case against Nadon. The low-profile group helps find lawyers who will work pro bono on important constitutional and Charter cases that might not otherwise be heard.
Galati successfully challenged rules that allowed judges over the age of 75 to decide cases in Federal Court. The practice was effectively outlawed in 2011.
In a statement Tuesday, MacKay’s press secretary maintained the government exercised its due diligence and stands by the appointment.
“Justice Nadon is qualified and we are certain he will serve the court with distinction,” Paloma Aguilar said. “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.”
Nadon is the first Federal Court judge from Quebec to be appointed to the high court.
University of Ottawa law professor Adam Dodek explains the Supreme Court Act has allotted Quebec three spaces on the top bench because of the “uniqueness and importance” of its civil code and that it boils down to an issue of expertise.
At the centre of the debate, he said, is whether a Federal Court judge from Quebec is familiar enough with the province’s civil laws, having not had to hear such cases at the federal level – in Nadon’s case, for 20 years.
Dodek believes it’s an issue for Parliament to decide and that a Supreme Court reference isn’t necessary. He said Binnie’s legal opinion is “a fair reading of the law” and he would not be surprised to see the government introduce amendments to clarify the Supreme Court Act.
Officials probably should have done that before making the appointment, he said, adding the government will likely “try to fix” that by including language that makes it “clear that a judge who was appointed prior to the enactment of this new law would still be qualified.”
Dodek said Galati’s call for a constitutional amendment – which would require unanimous consent from all provinces – is reserved for major changes to the composition of the high court and in this case, is a “weak argument.”
This isn’t the first time Nadon has courted controversy since his nomination was first announced. Aside from his stance on Omar Khadr, he raised concern from some about the case of Leon Mugasera, who was ordered deported for his role in the Rwandan genocide only after the Supreme Court overturned Nadon’s initial ruling.
There were also questions raised after his appearance last week before an all-party House of Commons committee that heard from him on his credentials.
Nadon told the committee he was drafted by the Detroit Red Wings when he was 14, but sports bloggers quickly discovered there was no record of that. He clarified to some media outlets that he’d actually been recruited at a lower level and might have eventually been chosen to play for the Red Wings, and said he did not mean to deceive Canadians.
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