Top court judge steps aside due to challenge
Activist lawyer argues Nadon not qualified
OTTAWA • It’s been a tough first week for Canada’s newest Supreme Court justice, who says he won’t participate in matters before the court ‘‘for the time being’’ because his appointment is now the subject of a legal challenge.
An activist Toronto lawyer is going to Federal Court in order to test Justice Marc Nadon’s eligibility for the highest bench.
Rocco Galati says that according to the Supreme Court Act, Judge Nadon cannot sit on the high court. Mr. Galati argues the act limits Quebec’s three Supreme Court appointments to members of the Court of Appeal, superior justices of Quebec and Quebec lawyers with 10 years’ stand- ing at the bar “just prior to nomination for appointment.”
Judge Nadon, 64, most recently spent 12 years as a Federal Court of Appeal judge and eight years on the Federal Court before that. Prior to becoming a judge, he spent two decades as a lawyer specializing in maritime and transportation law at Fasken Martineau Walker in Montreal.
It’s an issue Justice Minister Peter MacKay raised several months ago, but which the government tried to tackle prior to his nomination.
The government sought a legal opinion from former Supreme Court Justice Ian Binnie, who concluded a member of the Federal Court with at least 10 years’ experience as a member of the Quebec bar could be appointed to the Supreme Court. Retired Supreme Court Justice Louise Charron and constitutional expert Peter Hogg both reviewed and agreed with the opinion.
But in his application for judicial review, Mr. Galati argues that wasn’t enough. Mr. MacKay was “duty bound to bring a reference on the issue” to the Supreme Court rather than simply commission a “private legal opinion,” according to the application filed this week in Federal Court.
The application argues the appointment is a “breach” of Canadian “federalism, constitutionalism and rule of law” and raises questions about “a fair and independent judiciary.”
Judge Nadon was officially sworn in at a private ceremony Monday, two days before the Supreme Court was to resume hearing cases following the summer break. But in a statement issued through the Supreme Court Tuesday, Judge Nadon indicated he would not participate “for the time being.”
Mr. Galati ultimately wants his oath to be “declared invalid and quashed.’’
“If the court doesn’t want to touch his appointment because it’s a fait accompli, we still say that they have to clarify the law,” said Mr. Gal- ati, who is well known for representing a number of terrorism suspects, including Abdurahman Khadr, the older brother of Omar Khadr.
Judge Nadon was involved in the case of Omar Khadr: while his two colleagues upheld a ruling ordering the government to repatriate the since-convicted terrorist, who was at the time being held in Guantanamo Bay, Cuba, Judge Nadon sided with the government and suggested the Federal Court would be exceeding its jurisdiction if it ordered his repatriation.
Mr. Galati is also among a handful of lawyers involved with t he Constitutional Rights Centre, which is listed as an applicant in the case against Judge Nadon. The low-profile group helps find lawyers who will work pro bono on important constitutional and Charter cases that might not otherwise be heard.
Previously, Mr. Galati successfully challenged rules that allowed judges over the age of 75 to decide cases in Federal Court. The practice was effectively outlawed in 2011.
In a statement Tuesday, Mr. MacKay’s press secretary maintained the government exercised its due diligence and stands by the appointment.
“Justice Nadon is qualified and we are certain he will serve the court with distinction,” Paloma Aguilar said.
Judge Nadon is the first Federal Court judge from Quebec to be appointed to the high court.
The challenge is the second bump in Judge Nadon’s road to the Supreme Court.
Last week, he told an allparty House of Commons committee he was drafted by the Detroit Red Wings when he was 14, but sports bloggers quickly discovered there was no record of that. He clarified to some media outlets that he’d actually been recruited at a lower level and might have eventually been chosen to play for the Red Wings, and said he did not mean to deceive Canadians.