The Toronto lawyer who helped bring down one of Stephen Harper's picks for the Supreme Court says he will consider another legal challenge if the Trudeau government does not choose an Atlantic Canadian to be the next judge on Canada's top court.
Rocco Galati, whose 2013 challenge led to the Supreme Court's historic rejection of Justice Marc Nadon, said he believes Prime Minister Justin Trudeau is constitutionally obligated to nominate an Atlantic Canadian to replace Justice Thomas Cromwell when the Nova Scotia judge retires on Sept. 1.
"The first criteria should be on the qualification of the candidates, but certainly the regional representation has to be there," Mr. Galati said in an interview. "And there's no way anybody can make the case for the fact that a region would not have one qualified judge to appoint."
The Trudeau government is facing criticism over its decision to buck the long-standing tradition of guaranteeing a spot on the high court to a judge from a particular region in Canada.
Mr. Galati said the coming appointment is "certainly on my radar," as it is for other constitutional lawyers. He referred to a 1998 Supreme Court reference to Quebec secession which outlined federalism as "one of the unwritten constitutional pillars of our Constitution" as a reason for maintaining regional balance on the court.
"If you eliminate a federalism texture and colour to the composition of the Supreme Court, I think that's not constitutional," Mr. Galati said.
The Prime Minister recently announced a seven-member non-partisan advisory board, chaired by former prime minister Kim Campbell, to make the process of choosing the next Supreme Court judge more transparent and accountable to the public.
The advisory board will recommend to Mr. Trudeau a shortlist of candidates who are "functionally bilingual" and represent Canada's ethnic diversity. The shortlist will include Atlantic Canadians, but that won't guarantee the next judge will be from the region.
"We need to make sure that we're folding in all sorts of different aspects to get the best possible people to sit on the Supreme Court," Mr. Trudeau said this week in Corner Brook, as he began a string of East Coast visits. "Having the perspective from Atlantic Canada is an extremely important one, and we're looking forward to making sure we make the right choice," he added.
Quebec is the only province that is legally guaranteed three seats on the nine-member bench, although traditionally there has been one judge from British Columbia; one from Manitoba, Saskatchewan or Alberta; three from Ontario; and one from Atlantic Canada.
Mr. Galati said there is no reason the government should steer from that formula.
"If they were going to make an exception for whatever bizarre reasons with an Ontario judge, you could almost tolerate that. But when you're going to bypass an entire region of four provinces, that's unacceptable," Mr. Galati said.
He said he agrees with Supreme Court Chief Justice Beverley McLachlin's recent comments that diversity needs to start in the lower courts. "You're not going to get qualified diverse people by parachuting them in," Mr. Galati said.
The Canadian Bar Association is also urging Mr. Trudeau to nominate an Atlantic Canadian. "We think there [are] qualified people in Atlantic Canada. I don't think the notion of diversity and regionalism are mutually exclusive," the association's newly appointed president, René Basque, said in an interview.
Wayne MacKay, a constitutional law professor at Dalhousie University's Schulich School of Law, said Mr. Galati may have a legal argument according to section 41 of the Constitution Act 1982, which states the composition of the Supreme Court cannot be changed without unanimous provincial consent.
"One of the important things that the Supreme Court does is decide issues of federalism – in terms of federal and provincial jurisdiction – and in that regard, having some Canada-wide representation is a pretty important form of diversity," he said.
Lorne Sossin, dean of York University's Osgoode Hall Law School, said he wouldn't be surprised if the appointment is ultimately challenged if an Atlantic Canadian is not named, but it may be justifiable if the top court becomes more diverse.
"The only basis on which that could be justified is to, for example, appoint the first indigenous justice to the court," Mr. Sossin said. "That would be a break with tradition that could clearly be justified on other important grounds of reflecting the country and its search for reconciliation and the importance of indigenous law in Canada."
With a report from The Canadian Press