The Conservative government has removed a judge from the Federal Court of Appeal in Ottawa and named him to Quebec's highest court, setting the stage for a possible Supreme Court appointment later this year – and another potential high-stakes legal battle.
Robert Mainville, an expert in aboriginal law who represented the James Bay Cree and other groups for more than 25 years, was one of the six candidates for an earlier Supreme Court vacancy on a list created by the Prime Minister's Office and the Justice Department. The confidential list was obtained by The Globe and Mail. Four of its members were from the Federal Court. The Supreme Court ruled Prime Minister Stephen Harper's choice for that post, Justice Marc Nadon of the Federal Court of Appeal, ineligible because he was not a member of the Quebec judiciary or bar.
The government appointed Justice Mainville to the Federal Court in 2009, and to the Federal Court of Appeal just seven months later. Gérald Tremblay, a Montreal lawyer and former head of the Federation of Law Societies of Canada, described him as a "very good guy. He's been a very good lawyer. As a judge he was a fine judge."
But the appointment, announced late Friday afternoon, of Mr. Mainville to the Quebec Court of Appeal drew immediate attention in Quebec. Some Montreal lawyers said if he is named to the Supreme Court it would be an evasion of the spirit of the court's Nadon ruling, which Mr. Harper had vowed not to do. The government did not specify its reasons for appointing the judge.
"It is a fundamental doctrine of constitutional law that you can't do indirectly what you can't do directly," Tom Heintzman, a former president of the Canadian Bar Association, said.
Leading Montreal lawyer Suzanne Côté said she won't speculate whether Mr. Mainville will be appointed to the Supreme Court, but added, "I don't think it will fit with the spirit" of the Supreme Court's ruling in the Nadon case.
On Dec. 1, the Supreme Court will have another vacancy from Quebec when Justice Louis LeBel reaches the mandatory retirement age of 75.
The Supreme Court said in the Nadon case that the law governing appointments to the court was designed to preserve knowledge of Quebec's unique civil code and current legal environment on the court.
One senior Quebec lawyer called it a "contempt" of the Court of Appeal that turns the bench into a "warehouse for the PMO-identified eventuals." He also said it sent a message to other judges who are already eligible that they are not good enough for the Supreme Court.
Richard Shadley, another Montreal lawyer, said that if Justice Mainville is put on the Supreme Court, it would mean a break with the tradition that one of Quebec's three judges on the court is a woman.