He contends that Justice Nadon was not eligible to take a vacant Quebec seat on the Supreme Court. Section 6 of the Supreme Court Act says a judge on the Quebec Court of Appeal or Superior Court, or from among that province’s lawyers, may sit in one of the court’s three chairs reserved for Quebec judges. It does not mention the Federal Court.
“The composition of all the courts should be in accordance with the statute and the Constitution,” Mr. Galati said in an interview, explaining why he filed a notice of application in Federal Court in an attempt to put the appointment on hold while he seeks a permanent order against it.
The lack of clarity concerning the appointment of Quebec judges from the Federal Court’s trial and appeal divisions is no secret. Justice Minister Peter MacKay mentioned it this summer, and the government asked Ian Binnie, a retired Supreme Court judge from Ontario, to look into it. Mr. Binnie reported that an appointment from the Federal Court is legal. It would not make practical sense, he said, to ask a judge from that bench to resign, then rejoin the Quebec bar for a day or two to qualify. Another retired Supreme Court judge, Louise Charron, and constitutional expert Peter Hogg, affirmed that opinion.
Justice Nadon, 64, practised law for 20 years in Quebec and was a judge on the Federal Court’s two divisions for another 20. He was sworn in during a private ceremony on Monday. “Justice Nadon is qualified and we are certain he will serve the court with distinction,” said Paloma Aguilar, Mr. MacKay’s press secretary. “Constitutional experts agree that the Supreme Court Act allows for a sitting Federal Court judge to be appointed to the Supreme Court of Canada.”
Mr. Galati argues in his court filing that the government should have referred the issue to the Supreme Court for a ruling on the legality of the appointment.
The newest member of the Supreme Court of Canada says he won't hear any cases until a challenge to his appointment is resolved.
A Toronto lawyer is going to court to challenge Justice Marc Nadon's eligibility for the high court.
Rocco Galati argues that Nadon — formerly a Federal Court of Appeal judge — does not qualify to fill one of three slots reserved for judges from Quebec on the top court.
Galati says only judges from Quebec's appeals or superior courts, or lawyers who have belonged to the province's bar for at least 10 years, can be appointed to the Supreme Court.
But former Supreme Court Justice Ian Binnie wrote a legal opinion for the federal government in support of Nadon's appointment.
A spokeswoman for Justice Minister Peter MacKay defended Nadon's appointment.
"Justice Nadon is qualified and we are certain he will serve the court with distinction," Paloma Aguilar wrote in an emailed statement.
"Constitutional experts agree that the Supreme Court Act allows for a sitting Federal Court judge to be appointed to the Supreme Court of Canada — this includes the opinion of former Supreme Court Justice Ian Binnie."
Nadon's reaction came in a terse, once-sentence news release from the Supreme Court: "Mr. Justice Marc Nadon has decided, in light of the challenge to his appointment pending before the Federal Court, not to participate for the time being in matters before the Supreme Court of Canada."
Galati is asking the court to compel the government to turn over Binnie's legal opinion and any other advice it sought. The Prime Minister's Office has already posted Binnie's opinion on its website.
Galati is also seeking an interim order to stay Nadon's appointment.
This is the second controversy that has cropped up around Nadon since Prime Minister Stephen Harper tapped him for the court less than two weeks ago.
The first kerfuffle came after he told a parliamentary committee the NHL's Detroit Red Wings drafted him as a youngster.
He later clarified that the team never actually drafted him and that he was using the term in a much looser sense.