Could the Conservatives appoint another Marc Nadon to the Supreme Court?

Justice Marc Nadon listens to opening remarks as he appears before a parliamentary committee following his nomination to the Supreme Court of Canada Wednesday October 2, 2013 on Parliament Hill in Ottawa. THE CANADIAN PRESS/Adrian Wyld

OTTAWA – As we await the government’s impending appointment to fill the Quebec vacancy on the Supreme Court, one question remains: could the Conservatives name another Federal Court judge to the bench?

The answer is: sort of.

Justice Minister Peter MacKay recently hinted there was more than one Federal Judge in the running to fill the Quebec vacancy.

But that was before the Supreme Court ruled that Federal Court of Appeal Justice Marc Nadon was not eligible for the post.

The court said the Quebec vacancy must be filled by either a judge from the Quebec Court of Appeal and the Superior Court, or by a Quebec lawyer.

The Supreme Court didn’t consider what would happen if a judge was to resign and rejoin the Quebec bar – as was suggested by the Prime Minister’s Office and ultimately rejected by Nadon prior to his failed appointment.

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It is not clear if he would have had to spend 10 years at the bar or if previous work experience would count towards eligibility.

But it seems a Federal Court judge could still find his or her way to the top court.

Read more: Harper vs the Supreme Court, a contentious recent history

It’s possible that a judge could be transferred, at the purview of the federal government, to one of the two eligible Quebec courts.

One name that was floated around before Nadon was appointed was Johanne Trudel, a now semi-retired judge from the Federal Court of Appeal who spent 14 years at the Quebec Superior Court. Trudel did not respond to request for comment.

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Sources suggest the government could be considering the option of appointing a federal judge to the Quebec courts as a pit stop before being nominated to the Supreme Court.

“In legal terms, that would be a safer route,” said Sebastien Grammond, an associate professor of civil law at the University of Ottawa.

“What people will say or think of that, that’s another issue.”

A spokeswoman for MacKay would only say the government “will respect the letter and spirit of the Supreme Court decision.” MacKay recently said he met with Quebec’s justice minister and the court appointment will occur as “expeditiously as possible.”

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But the government’s unwavering support for Nadon, an expert in Maritime law, has some questioning whether another federal judge appointment is in the works.

“I don’t think it would be necessarily illegal because it would fit the criteria. But everybody would see…the irony in it all,” said NDP justice critic Francoise Boivin.

“It’s so unbecoming of the value we’re supposed to put on the Supreme Court of Canada, which is the last stop for justice in this country.”

Whether a federal judge who is transferred to a Quebec court satisfies what is known as the spirit, or essence of the law, is undecided.

The reason there are three spots on the Supreme Court reserved for Quebec is because of the province’s distinct legal system, governed by a civil code that serves as the general law for society, said Sean Casey, the Liberal party’s justice critic.

And if the Conservatives were to appoint a federal judge to a Quebec court, that would be seen “as a further show of disrespect for the Supreme Court of Canada and its decision,” said Casey.

“While they may technically be allowed to do it, the message that they would be looking to send is, ‘We got ya,’” he said.

Grammond says the courts have never considered how long a federal judge would have to stay at a provincial court, before moving on to the Supreme Court.

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“I don’t want to speculate about any challenge, but obviously if you want to comply with the letter and the spirit of the decision it has to be more than one day,” he said. “How many days, I don’t know. I don’t have an answer to that.”

Rocco Galati, the Toronto lawyer who challenged Nadon’s appointment, still has an application pending in Federal Court if the next Supreme Court appointee resigns and joins the Quebec bar.

But he said the issue of whether a judge is transferred to a Quebec court and then to the Supreme Court is not as clear cut and wouldn’t necessarily be challenged – at least not by him.

“It still, in my view, is really a circumvention,” he said.

Galati said his issue with appointing federal judges to the Supreme Court was never personal – but rather about meeting the legal requirements.

“It’s unprecedented that a government sets out to subvert the Constitution in such blatant, disgusting, insulting ways,” he said.

“I’ve been at this 25 years and I’m disgusted. I don’t say these things lightly or flippantly. What is this about? This is dictatorial, is what it is.”

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