June 14, 2014

Kevin Gourlay

The Supreme Court of Canada just went through the undoubtedly uncomfortable fiasco of having to rule on the eligibility of a nominee, the Honourable Marc Nadon.  The 6:1 majority concluded that Justice Nadon, a supernumerary judge of the Federal Court of Appeal, did not meet the criteria of s. 6 of the Supreme Court Act which mandates that 3 of the SCC’s nine judges “shall be appointed from among the judges of the Court of Appeal or at the Superior Court of the Province of Quebec or from among the advocates of that Province.”  As such, he was ineligible.

After the SCC’s decision, the Harper government embarked on a baseless attack upon the Chief Justice and her (entirely appropriate) role in the Nadon affair.  Prime Minister Harper eventually appeared to back down, making the uncontroversial appointment of Mr. Justice Clement Gascon to fill the seat.

On May 23rd, the Globe and Mail reported the secret 6-person short-list of potential nominees to fill the seat vacated by the retiring Mr. Justice Fish from which Justice Nadon had been selected.  That list included two “heavyweights” that would have been expected candidates for the position (Justice Marie-France Bich of the PQ Court of Appeal and Justice Pierre Dalpond.)  Surprisingly, the list also included 3 members of the Federal Court of Appeal and one member of the Federal Court Trial Division.

One of the FCA members on the short list was Justice Robert Mainville.  On Friday, June 13th, the Minister of Justice announced that Justice Mainville had been appointed to the Quebec Court of Appeal, leading to widespread speculation that the move was intended to get around the Nadon ruling by having Justice Mainville go briefly to the Quebec Court before having him fill the other Quebec SCC seat that will soon be vacant following Justice Lebel’s retirement in December.

The problem is this: S. 98 of the Constitution Act, “Selection of Judges in Quebec,” states: “The Judges of the Courts of Quebec shall be selected from the Bar of that Province.”  This wording is even clearer than that of the Supreme Court Act which, to reiterate,  required that SCC appointees for the Quebec seats “shall be appointed from among the judges of the Court of Appeal or at the Superior Court of the Province of Quebec or from among the advocates of that Province.”  If Justice Nadon was ineligible for the SCC on the basis of that wording, it is hard to imagine how Justice Mainville is eligible for the PQ CA given the wording of s. 98.  We shall see whether this leads to further disputes and embarrassment for the government.




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