OTTAWA — Only one Quebec judge will likely be on the panel when at least three Quebec civil cases are heard by the Supreme Court of Canada this winter, a turn of events that highlights the importance of next week’s reference on the future of the court’s newest appointee.
A review of the dozen cases on the docket over the next three months that relate directly or indirectly to Quebec suggests Richard Wagner, who was appointed to the Supreme Court from the Quebec Court of Appeal in October 2012, will have to recuse himself from at least three because he presided over the original appeals.
A basic rule in law is that a judge cannot sit on an appeal of his or her own decision.
This comes with the nine-member court already down one of its three Quebec judges after Marc Nadon’s appointment was contested last fall.
Toronto lawyer Rocco Galati challenged the appointment in Federal Court on the basis that it violated the Supreme Court Act and that any changes to the act — including those passed by the Conservative government through its recent budget bill to enable the appointment at the 11th hour — require a constitutional amendment, essentially the unanimous consent of the provinces.
Nadon stepped aside pending resolution of the case, leaving the bench short-handed.
The government has since asked the court to examine whether a Federal Court judge from Quebec should be allowed to sit on the high court. Arguments in the cases were expedited and will be heard next Wednesday.
Meantime, Galati and the federal attorney general reached an agreement to stay his Federal Court challenge pending the outcome of the reference. Galati was also named an intervener in the case, which will allow him to present arguments before the Supreme Court next week.
“There’s a reason why Quebec is the only province that is named in the Supreme Court Act and is guaranteed three of the nine judges and that is to ensure that there is sufficient civil law expertise on the court,” University of Ottawa constitutional law professor Adam Dodek said, noting a decision in the reference is likely within six months as opposed to the year they can often take.
“When one of those is not available, then they are unable to do that. So again, I think that that’s just another reason why the court has an interest in resolving the issue as quickly as possible.”
While the court is expected to rule more quickly than usual, Dodek said it’s unlikely to come in time to hear important Quebec civil cases.
A trio of class-action lawsuits by Quebec credit card holders against 10 banks over currency-conversion fees goes to the court next month. Then in March, the justices will hear the case in March of a Quebec high school that was denied the right to offer a faith-based ethics and religious culture course in the wake of a 2008 provincial law.
The latter, which is one the three cases from which Wagner must recuse himself, is expected to be of particular public interest given the controversy over Quebec’s values charter, which would bar public servants from wearing “conspicuous” religious symbols.
Another relates to Zahra Kazemi, the Iranian-Canadian photojournalist tortured and murdered in Iran and whether her family could sue a foreign state for her death in a Canadian court. Wagner also will likely have to recuse himself from a labour rights case being heard Monday involving a pregnant substitute teacher.
Dodek said it isn’t unusual for a case to be heard by a panel with just one Quebec judge as top court justices have in the past had to recuse themselves for similar reasons, but “what’s ideal is to have the full complement of nine,” including three from Quebec.
Next week’s reference will ask the court to answer two questions:
Can a judge with at least 10 years’ standing before the Quebec bar be appointed under the Supreme Court Act even though it does not specifically mention the Federal Court? Some argue that Federal Court judges are precluded because they usually aren’t versed in Quebec civil law.
Was Parliament justified in amending the act retroactively to allow somebody with at least 10 years’ standing at any time before any provincial bar, to serve on the high court?
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