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Supreme Court to hear case on eligibility issue

Thursday, January 29, 2015 @ 7:00 PM | By Cristin Schmitz

The Supreme Court of Canada will determine whether Justice Robert Mainville and other judges of the Federal, Tax and Quebec provincial courts are constitutionally eligible for appointment to Quebec’s superior trial and appellate courts.

The province announced Jan. 19 it is exercising its automatic right to appeal to the Supreme Court the recent Quebec Court of Appeal decision in Reference re Section 98 of the Constitution Act, 1867. The ruling affirmed that Justice Mainville, as a Federal Court of Appeal judge, was constitutionally eligible to be appointed to the Quebec Court of Appeal last July.

The novel reference case launched by the Quebec government last year asks the Supreme Court to interpret, for the first time, what s. 98 of the Constitution requires as eligibility for such appointment. The judge has not been sworn into the Quebec Court of Appeal, pending the outcome of the Reference.

The case has the potential to affect federal judicial appointments across Canada, said James O’Reilly of Montreal’s O’Reilly & Associés. For example, if the top court were to decide that s. 98 requires that superior court judges in Quebec be appointed only from current members of the Quebec bar (and thus, not also from among superior court judges or provincial court judges in Quebec), it could upset appointments in every superior court in the rest of Canada, which are covered by the similarly worded s. 97, O’Reilly said.

“Somebody from the Superior Court of Ontario appointed to the Ontario Court of Appeal would be ineligible,” according to one possible take on the meaning of ss. 97 and 98 of the Constitution Act, 1867.

“Over 80 per cent of the judges of the Courts of Appeal of Ontario and Quebec, and…it runs somewhere around that percentage [for other superior courts], were ineligibly appointed” on that theory, said O’Reilly. “So you are questioning the whole system of appointments of judges across the country.”

O’Reilly represents the Grand Council of Cree and the government of the Cree Nation, interveners in support of the validity of Justice Mainville’s appointment to preserve important judgments they have won, as well as the importance of aboriginal legal traditions alongside Quebec’s.

Two interveners seeking to quash Justice Mainville’s appointment — Toronto constitutional litigator Rocco Galati, and the Constitutional Rights Centre, represented by Toronto’s Paul Slansky — also filed their notices of appeal one day after a special five-judge appellate panel handed down its ruling Dec. 23.

The Court of Appeal, led by Quebec Chief Justice Nicole Duval Hesler, ruled that under s. 98, a judge of the federal courts (i.e. 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.

Therefore, the federal government’s appointment of Justice Mainville, a former senior Montreal lawyer and aboriginal law expert who was a member of Federal Court of Appeal when named to the Quebec Court of Appeal last July, did not violate s. 98 of the Constitution Act, 1867, the court concluded.

Section 98 specifies that “the judges of the courts of Quebec shall be selected from the bar of that province.”

Quebec, along with Galati and the Constitutional Rights Centre, argues that Justice Mainville’s appointment is invalid because s. 98 requires that recruitment to Quebec’s superior courts come only from present (not past) members of the Quebec bar (or from among the members of courts in Quebec).

“This [case] has to do with the minimum structural requirements for the appointment of the judiciary, which if breached really amounts to a corruption of the judicial appointment system within the federalist state,” said Galati, who last year successfully challenged Federal Court of Appeal Justice Marc Nadon’s appointment to the Supreme Court (Reference re Supreme Court Act, ss. 5 and 6 [2014] S.C.J. No. 21). “This issue, like Nadon, speaks to first, the federalist state that we have, but more importantly, speaks to the government trying to circumvent those requirements to its own needs to stack the courts with judges they think are like-minded, or that they’ve already groomed.”

Galati and Quebec argued that the reasoning in the Nadon Reference effectively determines the Mainville Reference. The top court split 6-1 last March to strike down Justice Nadon’s Supreme Court appointment because it breached the s. 6 Supreme Court Act requirement that Quebec’s three seats on the court can only be filled by members of the Quebec bar or Quebec’s superior courts — which the majority held means only current members of the Quebec bar. As a Federal Court of Appeal judge, albeit one who previously practised law for decades in Montreal, Justice Nadon was ruled ineligible.

However, the Quebec Court of Appeal distinguished the Nadon Reference, holding that Section 98 does not have the same effect on appointments to Quebec’s superior courts as s. 6 does on appointments to the Supreme Court of Canada’s three Quebec seats.

They pointed out that the Supreme Court’s majority held in Nadon that 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.

“To be sure, the importance of s. 98 in safeguarding the civil law tradition in Quebec should not be minimized, but it is impossible to argue that this provision discloses the same historic compromise that underlies s. 6 of the Supreme Court Act,” the Court of Appeal stated.

Moreover, absurd results would occur if only current Quebec bar members were eligible. The court cited Federal Court of Appeal Justice Johanne Trudel, appointed to the Quebec Superior Court in 1993 after 15 years practising law in Quebec. She was subsequently promoted to co-ordinating judge of the Gatineau district in 1995, and in 2007 named to the Federal Court of Appeal. To transpose the majority’s reasoning in Nadon would mean that she could not now be appointed to the Quebec Superior Court or Quebec Court of Appeal.

“Since a judge of either of the two Federal Courts cannot be named to the Superior Court or the Court of Appeal of Quebec without having been a member of the Barreau du Quebec, it is difficult to see what cognitive obstacle lies in the way of such a judge fully participating, whether on a trial or appellate court, in legal proceedings involving Quebec civil law,” the appeal court said.

The panel added, “to read a requirement of contemporaneity into s. 98 when no one has ever suggested such a requirement since 1867 would quite simply violate common sense.”