Focus On

Quebec jurists are eligible for Cromwell spot

Thursday, September 01, 2016 @ 8:00 PM | By Cristin Schmitz

Federal Court and Federal Court of Appeal judges from Quebec, including Justice Marc Nadon, are eligible to succeed Supreme Court Justice Thomas Cromwell of Atlantic Canada, as well as to fill the other common law spots not reserved for Quebec on the top court, the federal Department of Justice has confirmed to The Lawyers Weekly.

It is the latest unforeseen twist in the Nadon saga which saw the Supreme Court rule two years ago that Justice Nadon (appointed to the top court from the Federal Court of Appeal by then prime minister Stephen Harper) and other judges from the Federal Court and Federal Court of Appeal, were ineligible for appointment to the three seats reserved to Quebec by s. 6 of the Supreme Court Act: Reference re Supreme Court Act ss. 5 and 6 2014 SCC 21.

The Nadon ruling came as a bitter blow to the Federal Court and Federal Court of Appeal, whose Quebec judges saw it as relegating them to second-class status because they were no longer eligible for elevation to the highest court. In the decision’s wake, Federal Court of Appeal Chief Justice Marc Noel repeatedly called on Ottawa to find a “solution” to the Supreme Court’s “demotion” of the Quebec judges of his court and the Federal Court.

“If the Federal Courts are to continue in their present form, this differential treatment, based on legal training and the origin of the judges will have to be eliminated,” Chief Justice Noel asserted in 2014.

The new federal government of Justin Trudeau appears to have heeded the chief justice’s call, albeit without mentioning the apparent Nadon workaround when announcing its new Supreme Court appointment process in August.

In the name of diversifying the Supreme Court, the government said it was accepting applications from jurists across Canada to replace Justice Cromwell of Atlantic Canada. It also expressed its willingness to depart from the constitutional convention of regional representation for the common law provinces (whereby one seat is reserved for Atlantic Canada, two seats are reserved for the West and three are reserved for Ontario).

Under the government’s thinking, Justice Nadon is himself now eligible for the top court’s common law vacancies. Moreover, given that the Federal Courts’ Quebec judges are all fluently bilingual, they may be regarded now as a particularly qualified pool from which to fill the common law spots since Ottawa is requiring all Supreme Court appointees to be “functionally bilingual.”

There are a dozen Federal Court judges, and seven Federal Court of Appeal judges, who were once members of the Quebec bar, according to the courts. By statute, at least 10 Federal Court judges must hail from the Quebec superior courts or the Quebec bar, as must at least five judges of the Federal Court of Appeal.

“Judges of the Federal Court and Federal Court of Appeal are eligible to apply under this process,” Department of Justice spokesman Andrew Gowing confirmed in an e-mailed response to a Lawyers Weekly question, “Does the government take the position that Quebec judges on the Federal Court and Federal Court of Appeal are eligible to apply for [the Cromwell] vacancy?”

Gowing explained, “while the Supreme Court concluded in Reference re Supreme Court Act, ss. 5 and 6 that judges from those courts are ineligible for appointment to one of the three positions on the court reserved for Quebec — that is, the positions addressed by s. 6 of the Supreme Court Act — it equally confirmed the eligibility of those judges for vacancies such as this one [Cromwell] that fall under the broader eligibility requirements of s. 5.”

The government’s approach is constitutionally contentious. The Law Society of New Brunswick wrote Prime Minister Trudeau protesting that dropping Atlantic Canada’s representative from the court would breach constitutional convention and be “contrary to the interests of the public.” Citing federalism as an imperative for maintaining the court’s regional/provincial representation, Toronto litigator Rocco Galati, who successfully challenged Nadon’s Supreme Court appointment, warned he might attack in court the federal government’s stance that the executive branch can unilaterally depart now, and for future common law vacancies, from what Justice Minister Jody Wilson-Raybould has conceded to be a constitutional convention of regional representation. The top court stated in Nadon that “while Parliament has the authority to enact amendments necessary for the continued maintenance of the court, it cannot unilaterally modify the composition or other essential features of the court.”

This raises the question whether the century-plus practice of reserving three seats for Ontario, two for the West and one for Atlantic Canada now forms part of the court’s “composition or other essential features” that cannot be changed, except by constitutional amendment.

Gowing said the government received legal advice on the issue of departing from regional representation for its appointments to the Supreme Court. He declined to share that advice.