As a Federal Court judge, the Supreme Court Act precludes Nadon from being appointed to the Supreme Court Act, says lawyer Rocco Galati, who is joining with Constitutional Rights Centre Inc. to bring the application.
Nadon was officially sworn in as a judge of the Supreme Court in a private ceremony at the top court yesterday.
The notice of the challenge, filed with the Federal Court yesterday, names Prime Minister Stephen Harper, who nominated Nadon for the job, as one of the respondents.
When properly interpreted, s. 5 and 6 of the Supreme Court Act allows only for the appointment of Court of Appeal and Superior Court judges, or a lawyer who has been a member of the bar for at least 10 years, the notice reads.
“Conforming to constitutional requirements is always an issue, abiding by the law is always an issue,” Galati says.
Prior to Nadon’s nomination, Harper sought former Supreme Court justice Ian Binnie’s opinion on the matter. Binnie said, “There is nothing in the Supreme Court of Canada Act” that would prevent the appointment.
But Galati says it wasn’t up to Binnie to make that decision.
“We feel that the issue should not have been the subject of an opinion of a retired judge, but should have gone to the eight judges of Supreme Court on a reference if they had any doubt about it. There’s a lot to doubt here in terms of the ability to appoint Federal Court judges as Quebec judges,” he says.
In his written opinion to the prime minister, Binnie said other federal court judges, including justices Frank Iacobucci and Marshall Rothstein, have been appointed to the Supreme Court without controversy.
“That’s never an answer,” says Galati. “The fact of the matter is this has never been raised.
“The difference here is that the other federal judges were not from Quebec,” he adds. [Nadon] is the first one from Quebec. There are different provisions that apply.”
Binnie had also said although a Federal Court judge doesn’t fulfill one of the requirements for appointment to the top court — being a judge of either a Court of Appeal or a Superior Court — he meets the other criteria, which is having been a member of the bar for more than 10 years.
“In the English version the words ‘is or has been’ refer grammatically to both judges and advocates,” Binnie said. “If an individual has ‘at least ten years standing at the bar of a province’ he or she ‘is or has been’ such a member, and despite a lapse of time while serving the Federal Court, the s. 5 requirement is met.”
For Galati, Nadon is either a judge or a lawyer, and judges of the Federal Court cannot be appointed to the Supreme Court. Binnie’s reasoning is also “besides the point,” he says.
“There’s a lot of reasons the provision is there. One of the reasons with respect to the accommodation of Quebec is that you don’t want people being absent that long from Quebec and then purporting to be Quebec judges.
“[Nadon] has been a Federal Court judge for 20 years. The section doesn’t allow his appointment.”
Galati is also seeking an interim order to stay Nadon’s appointment.
Justice Minister Peter MacKay's spokesperson Paloma Aguilar told Legal Feeds: "Justice Nadon is qualified and we are certain he will serve the court with distinction. 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.”
Update 1:45 pm: comments from Justice minister
Update: 3:40 pm: Press release from the Supreme Court of Canada: "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."
Update Oct. 12: The Barreau du Quebec has asked Prime Minister Stephen Harper to refer Galati's challenge directly the the Supreme Court of Canada because it considers Nadon's temporary removal will adversely affect the rights and principles for a sound administration of justice, particularly in light of some of the major cases the court is hearing this session. "I have asked Prime Minister Stephen Harper to refer this matter directly to the Supreme Court of Canada, as allowed under the Supreme Court Act, instead of following the usual judicial process, which could be longer," explained Johanne Brodeur, Ad. E., battonier of the Barreau du Québec.
The Barreau du Québec