Ottawa set for rematch in top court over judicial appointment

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The Conservative government is facing a rematch in the Supreme Court of Canada after the unprecedented rejection last year of a judge it wished to appoint to the country's highest court.

At a hearing next month, the court will consider the legality of another senior judicial appointment – this one of Justice Robert Mainville to the Quebec Court of Appeal last June. A government victory would provide a way around last year's Supreme Court ruling that Justice Marc Nadon was not eligible for a Quebec seat on the Supreme Court because he came from the Federal Court of Appeal. A defeat would be a second embarrassment in two years for Prime Minister Stephen Harper. The Supreme Court's 6-1 ruling was the first time in a common-law country a top court has overturned an appointment to its own bench.

The issues in the Mainville case are strikingly similar to those in the case of Justice Nadon last year. Justice Mainville also was a member of the Federal Court of Appeal, and some observers said his appointment to the Quebec court appeared to be an attempt to make him eligible for the Supreme Court.

"There's a legal adage we teach first-year students: 'In law, one may not do indirectly what she may not do directly,'" said Maxim St-Hilaire, a law professor at the University of Sherbrooke.

The case, like the previous one, pits the federal cabinet's appointment power against rules meant to protect Quebec's unique system of civil law.

And the combatants are the same, too. Toronto lawyer Rocco Galati, who initiated the challenge that unseated Justice Nadon from the Supreme Court, brought the case against Justice Mainville. And the Quebec Attorney-General's office has taken it up, as it did with the Nadon case.

The impact of the Nadon case was enormous, all of it without precedent in Canada. The court operated one judge short for 10 months because Justice Nadon stepped aside when the case was launched. The Prime Minister publicly accused Supreme Court Chief Justice Beverley McLachlin of improper conduct in the case.

And after The Globe revealed the Prime Minister's secret list of candidates, which included Justice Mainville, for the spot that was meant for Justice Nadon, the government cancelled parliamentary involvement in the selection of Supreme Court judges. Two judges, including a replacement for Justice Nadon, have since been chosen.

Justice Nadon had been on the Federal Court's appeal and trial divisions for 20 years when Mr. Harper named him to one of the three Supreme Court seats reserved for Quebec. But the court ruled Federal Court judges are ineligible for those seats under a law aimed at preserving current legal and social knowledge among the court's Quebec's judges.

If Justice Mainville's appointment to the Quebec Court of Appeal is ruled to be legal, it could allow governments to skirt the Nadon ruling by appointing Federal Court judges to the Quebec court to render them eligible for the Supreme Court.

Justice Mainville had sat on the Federal Court's two divisions since 2009, and had been a member of the Quebec bar since 1976. Canada's 1867 constitution said judges for Quebec courts must be chosen "from the bar" of that province. The wording is similar to the clause in the Supreme Court Act at issue in the Nadon case: Quebec judges on the Supreme Court must be chosen "from among the advocates of that province," or a specified court.

The Quebec Court of Appeal ruled Justice Mainville eligible for the Quebec court, saying that, since Confederation, the clause has been understood to include qualified candidates who have been away from the Quebec bar.

Mr. Galati is appealing the ruling, saying the case is about government trying to evade the Nadon ruling. "It makes a farce of Nadon," he said in an interview.

Few legal observers last year expected Mr. Galati to bring down a Supreme Court judge. Once again, many scholars are casting him as an underdog.

Paul Daly, who teaches law at the University of Montreal, believes a government victory is so likely that the Supreme Court could rule during the hearing or soon after.

"A lot of people suggested the Nadon decision put the Federal Courts in a bad light," he said in an interview. "I don't think that's accurate, but I think [the ruling] might have given rise to the idea that Federal Court judges are less able to protect the civil law tradition. I expect the Supreme Court to dispel that idea" in its Mainville decision.

But Prof. St-Hilaire is adamant Mr. Galati will win.

"In sum, I see this case as a test for our law's fidelity to fundamental principle and important struggles of our [pre-Confederation] past," he said in an e-mail. The principle is respect for Quebec's civil law tradition, and the pre-Confederation struggles were to establish that principle.

No matter what happens, the Supreme Court has no room for Justice Mainville because its Quebec seats are filled.

Justice Mainville was sworn in to the Quebec court, but has not heard any cases pending the outcome of the case.