Tuesday, June 17, 2014

The recent appointment of a Federal Court Judge to the Quebec Court of Appeal may well be invalid

Rocco Galati is challenging the nomination of Justice Robert Mainville of the Federal Court to the Quebec Court of Appeal, as announced Friday by Justice Minister Peter MacKay.  Rocco may well have a decent technical argument.

And following the technical reading given by the Supreme Court of Canada to the appointments process in Nadon [Reference re Supreme Court Act, ss. 5 and 6 2014 SCC 21] the Court may well be inclined to a technical argument.

Judges and judicial officers are not members of their respective provincial or territorial bars.  Hence in Ontario the professional conduct rules refer to a retired judge who has “returned to practice” [Rule 6.08(2)].  A search on the lawyers’ directory for Quebec [http://www.barreau.qc.ca/en/barreau/bottin/index.html?section=tous&sectionSelected=tous&nom=Mainville&prenom=&societe=  ] shows that Justice Mainville is not a member.

The Constitution Act, 1867, which governs the appointment of judges, provides:

Selection of Judges in Quebec
98. The Judges of the Courts of Quebec shall be selected from the Bar of that Province.

On a simple reading that means that Justice Mainville, not being a member of the Bar of Quebec, cannot be appointed to the Quebec Court of Appeal.

Now, from my standpoint, that is a highly technical point.  But such an argument succeeded in Nadon and may well succeed here.

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