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Victory at top court doesn’t mean end of turf war over appointments

Thursday, May 07, 2015 @ 8:00 PM | By Cristin Schmitz

The Supreme Court’s recent ruling that Federal and Tax Court judges can be appointed to Quebec’s superior courts, in tandem with a recent Barreau du Québec rule change, may have opened up two new routes for those judges to be promoted to the province’s three seats on the top court.

Lawyers say article 139 of the Barreau’s new code of ethics, which appears to permit the province’s jurists appointed to federal courts to opt to keep their membership in the Quebec bar, and the Supreme Court’s 9-0 judgment April 24 in Quebec (Attorney General) v. Canada (Attorney General) [2015] S.C.J. No. 22 — the Mainville decision — could arguably provide separate work-arounds to the top court’s controversial judgment last year striking down Federal Court of Appeal Justice Marc Nadon’s Supreme Court appointment (Reference Re Supreme Court Act, ss. 5 and 6 [2014] S.C.J. No. 21).

The court held 6-1 in the Nadon Reference that judges of the Federal and Tax Courts are barred from the top court’s Quebec seats because they don’t meet the constitutionally entrenched eligibility requirements in s. 6 of the Supreme Court Act that they must be “current” members of Quebec’s bar or superior courts.

In last month’s judgment, however, the Supreme Court unanimously affirmed the Quebec Court of Appeal’s conclusion last December that s. 98 of the Constitution Act 1867, which sets conditions for appointment to Quebec’s superior courts, does not bar members of the federal courts from being appointed to Quebec’s superior courts.

The top court thus dismissed the s. 98 constitutional challenge brought by the Quebec government and Toronto litigators Rocco Galati and Paul Slansky to the government’s appointment last June of Federal Court of Appeal Justice Robert Mainville to the Quebec Court of Appeal. The ruling means that Justice Mainville, and other Federal and Tax Court judges similarly transferred to Quebec superior courts, arguably are eligible for appointment to the Supreme Court’s Quebec seats.

Alternatively, if a Quebec lawyer opts under the new Barreau rules to keep their Quebec bar membership when appointed to the Federal or Tax Courts, they may be eligible for direct appointment to the Supreme Court as a “current” member of the Quebec Bar.

That possibility was raised before the Supreme Court by the Attorney General of Canada at the Mainville appeal last month, and was immediately rejected by counsel for the Attorney General of Quebec.

A Barreau spokesman said the changes to its code of ethics, which took effect April 1, were part of a much larger overhaul of the ethics code which began in 2010, long before the Nadon controversy erupted two years ago.

“With regard to the drafting of the sections of the code concerned in this revision, it must nevertheless be emphasized that the political aspect was never taken into consideration,” Barreau spokesperson Martine Meilleur said by e-mail. “Only principles of ethics and professional conduct were earmarked for this considerable work.”

The legal fallout and controversy stemming from the Nadon case has not been fully laid to rest by the Mainville decision, said Guy Régimbald of Ottawa’s Gowlings.

While the decision establishes that Federal and Tax Court judges can be appointed to Quebec’s superior courts, the court “did not make any final conclusion” on whether such judges can then be promoted to a Quebec seat on the Supreme Court, said Régimbald, co-counsel with François Baril, who argued the appeal for interveners the Association of the Tax Court of Canada Judges.

Régimbald acknowledged there could be further litigation if Ottawa eventually appoints a Federal Court or Tax Court judge directly to a Quebec seat on the top court. Similarly, “if, in five years from now the federal government attempts to appoint Justice Mainville to the Supreme Court of Canada, we could be back here,” he added.

“This decision potentially neutralizes Nadon,” Galati told The Lawyers Weekly, adding he expected to lose the Mainville appeal.

“I knew what the outcome would be when the court only gave me 10 minutes to make my argument,” said Galati, who successfully challenged Justice Nadon’s appointment to the Supreme Court.

Slansky said he wasn’t surprised with the decision. “I think they basically decided they had constitutionalized themselves last time” in the Nadon Reference, he said, adding that he felt the court decided to “let [Quebeckers] decide what their own fate is” in upholding the Quebec Court of Appeal.

Régimbald welcomed the ruling, which he said ameliorates the Nadon decision’s effects on the professional mobility of Quebec members of the Federal and Tax Courts.

After retiring for just 40 minutes following the hearing, the nine judges returned to their walnut-paneled Art Deco courtroom to unanimously dismiss the constitutional challenge “essentially for the reasons given by the Quebec Court of Appeal,” Justice Richard Wagner explained in oral reasons.

“The appellants have not persuaded us that the Court of Appeal erred in interpreting s. 98 of the Constitution Act, 1867,” he said. “The arguments based on [the Nadon Reference] do not stand up to analysis. As the Court of Appeal mentioned in paragraphs 26-36 of its opinion, this appeal concerns different constitutional and statutory provisions, and the reasoning and conclusions from that reference do not apply to it.”

A five-judge panel of the Court of Appeal ruled that under s. 98, a judge of the Federal Court of Appeal, Federal Court or Tax Court who was at any time a member of the Barreau du Québec before becoming a judge may be appointed to the Quebec Court of Appeal or the Quebec Superior Court.

Quebec, Galati, and Slansky, on behalf of the Constitutional Rights Centre, argued that Justice Mainville’s appointment was invalid because — like s. 6 of the Supreme Court Act, as interpreted by the Supreme Court in Nadon — s. 98 requires that recruitment to Quebec’s superior courts comes only from present (not past) members of the Quebec bar (or from among the current members of courts in Quebec).

But the Quebec Court of Appeal pointed out that the Supreme Court ruled in Nadon that the s. 6 requirement of present membership in the Quebec bar or in Quebec’s superior courts was part of a bargain struck at Confederation to ensure that the future Supreme Court would have the requisite legitimacy in the eyes of Quebeckers by exemplifying the province’s values and civil law tradition. Section 98 was not the product of that same historic compromise, the appeal court held.