OTTAWA – Justice Minister Peter MacKay signalled Monday the government’s controversial and legally-challenged pick for the Quebec Court of Appeal is headed to the Supreme Court of Canada.
But he quickly took it back.
MacKay announced last week that Federal Court of Appeal judge Robert Mainville is moving to the Quebec Court of Appeal, opening up the possibility that another federal judge could be heading to the high court following the botched appointment of Marc Nadon.
And on Monday, MacKay seemed to confirm it.
“I believe (Mainville’s) wealth of legal knowledge will be welcome at the Supreme Court and will be of significant benefit to the Quebec Court of Appeal,” MacKay said in question period.
The answer would suggest that the government is using Mainville’s appointment to the Quebec court as a gateway to the Supreme Court, possibly to take up Justice Louis LeBel’s seat when he retires on November 30.
MacKay was asked to clarify in a follow-up question from Liberal MP Sean Casey.
“Will the Minister of Justice confirm that the government intends to appoint Justice Mainville to fill the upcoming Quebec vacancy on the Supreme Court and thereby do indirectly what it cannot do directly?” Casey said.
MacKay said he did not follow what he called Casey’s “mental gymnastics.”
“The Superior Court of Quebec is a Supreme Court in the province,” he said.
“The reality is that we have here a very capable individual who applied for and now has been appointed to the appeal court of the Superior Court of Quebec. I know that he will provide tremendous service to our country, as he has through the Federal Court.
“I do not know why the opposition members spend so much time attacking the judiciary these days.”
On Monday, Mainville’s appointment to the Quebec court was legally challenged by constitutional lawyer Rocco Galati.
Galati also challenged Nadon’s appointment, leading to the rejection by his Supreme Court colleagues who ruled he could not take the Quebec seat on the high court because he did not come from one of two courts in Quebec, and was not a current member of the Quebec bar.
In his court application, Galati argues Mainville’s appointment violates Sec. 98 of the Constitution because he does not currently come from the Quebec bar, despite having 33 years of experience in the province.
“It’s wrong. It’s an attempt to stack the courts,” Galati said in an interview.
“It’s illegal, it’s unconstitutional.”
Following question period, MacKay said Mainville is “clearly eligible” for the Quebec Court of Appeal post.
When asked if that means he’s not going to name Mainville to the Supreme Court, MacKay answered, “No, that’s not what I’m saying at all,” and walked away.
NDP justice critic Francoise Boivin said following question period the real question is why the government is still making decisions that are going to be contested.
“It’s as if these guys don’t learn,” Boivin said.
She said the issue isn’t about Mainville’s competence. “He’s a great lawyer. But it doesn’t mean because you’re a great lawyer and competent that you are eligible,” she said.
“I’m so tired of that (Conservative) attitude and the way that they’re…mocking the courts, and having absolutely zero respect, and tainting everything they touch.”
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