Skip to content

Supreme Court is a Man Short

Angus Cheung (2L)
The Canadian judicial and political sphere has once again clashed in controversy following the recent Supreme Court of Canada appointment of The Honourable Mr. Justice Marc Nadon. This is the sixth Supreme Court appointment by Prime Minister Harper, filling the seat vacated by Justice Morris Fish earlier this summer. However, the highest court in the land is a man short while Toronto lawyer, Rocco Galati, challenges the appointment to the bench on the grounds that Mr. Nadon is not “Quebecois” enough. Of course, with the Parti Québécois in power, the provincial government is jumping onboard any bandwagon that would challenge federal authority.

Justice Nadon is a graduate and instructor at the Université de Sherbrooke’s faculty of law, practiced as a member of the Quebec bar for 20 years before becoming a Justice of the Federal Court and later, the Federal Court of Appeal. Few would question his academic, legal and judicial merits for the Supreme Court. In fact, his appointment was supported by the Conservatives, the Liberals and the NDP in committee. With Justice Nadon’s background, one does wonder why a member of the Law Society of Upper Canada is challenging the appointment of a seat reserved for Lower Canada.

Regardless of his motivations, the core of Mr. Galati’s argument is that Justice Nadon does not satisfy his interpretation of The Supreme Court Act which states that the seats reserved to Quebec must be “appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.”

Justice Nadon is not the first to be appointed from the Federal Court. Former Justice Iacobucci was appointed from a similar position, though not for a Quebec seat. Furthermore, it is hard to argue that the intention of the drafters of The Supreme Court Act included punishing Quebec lawyers for serving on the Federal Court by precluding them from appointments to the Supreme Court. While I understand why the Parti Québécois might support this interpretation, it would only alienate Quebec from the Canadian legal system.

Former Justices Ian Binnie and Louise Charron has openly supported the interpretation that any members of the Law Society of Quebec, who has serve at least 10 years, at any time during their career, satisfies the Supreme Court Act. This interpretation is further supported by none other than Prof. Peter Hogg. My memories of first year law may not be overly reliable, but I believe the paramount rule in Canadian Constitutional Law is “Whatever Peter Hogg says goes.”

Parliament has already referred the issue to the Supreme Court for a legal opinion hoping they can clean up the mess. One does wonder though, with a judge short, what will Canada do if the SCC comes back with a 4-4 decision.