The Quebec government says it will challenge the appointment of Justice Marc Nadon to the Supreme Court of Canada, in what legal scholars say appears to be a first in the court's 138-year history.
"It is certain we will make sure Quebec's voice is heard on the Supreme Court," Alexandre Cloutier, the province's Intergovernmental Affairs Minister, said Thursday. "We have the right to three judges and will demand it."
He expressed concern that a media report said Justice Nadon has not lived in Quebec for a long time. The Supreme Court Act mandates that three judges from the province sit on the court, but contains no residency requirement for Quebec nominees. Justice Nadon practised law with a Montreal firm for 20 years before joining the Federal Court in 1993.
Justice Nadon stepped temporarily aside last week shortly before he would have heard his first case when Toronto lawyer Rocco Galati challenged his nomination in a filing in Federal Court. Mr. Galati alleged the appointment was illegal under the Supreme Court Act because Justice Nadon was appointed from the Federal Court of Appeal, and judges on the Federal Court's two divisions are not expressly included among those who qualify to be on the Supreme Court.
Justice Nadon's absence left the court with just two judges from Quebec. It also left the court shorthanded during a critical period when a reference case on the future of the Canadian Senate is to be heard.
Quebec's challenge raises concerns about the legitimacy of the appointment, University of Waterloo political scientist Emmett Macfarlane says.
"Even if the challenge fails, to a certain extent the damage will be done. The legitimacy of Mr. Nadon's appointment will have been tainted, and that will not be good for perceptions regarding the legitimacy of the court itself, particularly in Quebec."
The battle may put Justice Nadon in a difficult position as it drags out over six months or even a year or more, he said. "While I think this situation is somewhat unfair to Mr. Nadon, if I were him I would be considering stepping down."
Sylvain Lussier, a senior Quebec litigator, called Quebec's announcement "an occasion to challenge the federal government in the large sense, and to voice [Quebec's] agenda over this appointment." He also said that having an eight-member bench is "not a good thing for the Canadian justice system."
Separately from the province's challenge, the Barreau du Québec, representing 24,500 lawyers, urged the federal government to expedite matters by asking the Supreme Court of Canada to rule on whether the appointment is allowed under the Supreme Court Act.
Mr. Cloutier said he did not know the form Quebec's challenge would take. The province might challenge the appointment at the Quebec Court of Appeal, join Mr. Galati's challenge at the Federal Court or introduce a motion in the National Assembly, he said.
Paloma Aguilar, spokeswoman for Justice Minister Peter MacKay, said the government stands by its choice. "We believe Justice Nadon is qualified and we are certain he will serve the court with distinction. Our government will defend the rights of Quebeckers who are appointed to the Federal Court to also sit on the highest court in Canada."
The Supreme Court has one current member, apart from Justice Nadon, who was appointed directly from the Federal Court of Appeal – Justice Marshall Rothstein. Previously, justices Frank Iacobucci and Gerald Le Dain were appointed from that court.