Federal court judges who once practised law in Quebec can be appointed to the bench in the province's court system, the Quebec Court of Appeal has ruled. However, it is unlikely Ottawa will use the manoeuvre as a quick route to the Supreme Court for federal judges.
Five Quebec appeal court judges ruled unanimously that the federal government was entitled to appoint Justice Robert Mainville of the Federal Court of Appeal to the Quebec Court of Appeal.
Last year, the Supreme Court of Canada ruled federal judges could not be appointed to its three Quebec seats. Justice Mainville was on a shortlist for recent Supreme Court vacancies, a Globe and Mail investigation showed last May. In June, the judge was appointed to the provincial appeal court, which would have made him eligible for the top court.
"This became an issue because of the suspicion there might have been an intention of doing an end-run into the Supreme Court," said Paul Daly, an associate professor of constitutional law at the University of Montreal.
The Dec. 1 appointment of Quebec lawyer Suzanne Côté to a vacant provincial seat on the Supreme Court erased that immediate potential controversy.
But the challenges to the Harper government's most prominent appointments may not be over.
Rocco Galati, the Toronto lawyer who has led the charge against Conservative appointments, said a bid to appeal the Mainville ruling is already in the works.
Last year, Mr. Galati successfully challenged the appointment of Federal Court Justice Marc Nadon to the Supreme Court, and launched the appeal of the Mainville appointment, which the Quebec government joined. The province says it is studying the Quebec appeal court ruling, which was handed down with little notice last week.
In last year's ruling, the Supreme Court said Justice Nadon was ineligible to join its ranks because he lacked current Quebec legal qualifications. In the case of Justice Mainville, the province and Mr. Galati argued that appointees to Quebec courts should meet the same requirement as Supreme Court nominees to have a "tangible, ongoing link" to Quebec's legal culture.
The appeal court found the restrictive qualifications for Quebec seats on the Supreme Court were part of a carefully crafted arrangement nearly 150 years ago to bring the province into Confederation. The rules were meant to ensure the top court included judges who have a deep understanding of Quebec and the civil code it inherited from France.
The rules for lower court judges are less restrictive and have evolved to accommodate a wider array of legal backgrounds, the appeal court found. The Constitution says Quebec judges must be selected from "the bar of that province," but the court found that, since 1867, the clause has been interpreted to include qualified candidates who have spent time away from the Quebec bar.
"It can be said, without exaggeration, that since 1867 it has never been a source of controversy," the Quebec appeal court said in its ruling.
Mr. Galati scoffed at the distinction between the levels of court, saying the appeal court "did a nice historical figure-skating job saying the context is different" in its ruling. "The wording is no different than the Nadon reference. You cannot be a former lawyer of the province. If this is the law, you could be disbarred and be appointed judge."
Mr. Galati was pessimistic about the chances of an appeal to the Supreme Court. "They may not have the same incentive here. They've protected their interests [in the Nadon ruling], they may decide, 'Who cares about one single judge'" in the Mainville case.
Prof. Daly agreed an appeal will be difficult, but for different reasons: "The Supreme Court probably won't have much appetite to tackle this after the Court of Appeal has done such a thorough job."
It is not known when the Supreme Court could hear the appeal.