Judicial Musical Chairs

Some have suggested that the announcement on Friday that Mainville J.A. has been appointed from the Federal Court of Appeal to the Quebec Court of Appeal suggests that he will be appointed to fill one of the Quebec seats on the Supreme Court of Canada, a seat about to be vacated by LeBel J. Mainville J.A. was on the long-list of judges last time out and is a highly regarded jurist (including by me, for what very little it is worth).

In March, in the Nadon Reference, the Court held that judges of the federal courts are not eligible for elevation to the Quebec seats. Only current Quebec judges and lawyers are eligible under s. 6 of the Supreme Court Act. As a member of the Quebec Court of Appeal, Mainville J.A. would be eligible.

It would be very risky to appoint Mainville J.A. to the Supreme Court, because there are two plausible arguments against the legality of any such move.

First, it could be construed as an attempt to circumvent the Supreme Court's decision in the Nadon Reference. The Court did not opine on the possibility that a federal court judge could step down and rejoin the bar (or a Quebec court) for a day and thereby become eligible. It left for another day the question of whether compliance with the text would overcome apparent defiance of its purpose.

Second, the appointment might be void ab initio because s. 98 of the Constitution Act, 1867 provides that "The Judges of the Courts of Quebec shall be selected from the Bar of that Province". As a member of the Federal Court of Appeal just prior to his appointment on Friday, Mainville J.A. is not currently a member of the Quebec bar.

These arguments are, at first glance, weaker than those advanced in the Nadon Reference. A Quebec Court of Appeal judge certainly satisfies the letter of the Supreme Court Act. And s. 98 might be construed as including 'former' members of the bar. Certainly, s. 3 of the Judges Act takes that view, permitting the appointment of lawyers with 10 years' service in the past and of current judges (the evolution of this provision was discussed by one of the interveners in the Nadon Reference). Mainville J.A. was long a member in good standing of the Barreau du Québec.

But, of course, the Judges Act would be trumped by the Constitution in the case of a conflict, and the question whether a brief stay on the Quebec courts allows a federal court judge to circumvent the criteria in the Supreme Court Act is one that can only be assessed on the facts of a particular case.

My point is not to assess the merits of these arguments, just to emphasize that litigation is almost certain if Mainville J.A. is elevated to the Supreme Court. The only question is whether the federal government would go ahead with the appointment regardless, or refer the question to the Supreme Court in advance.

Indeed, given that the second argument casts doubt on the legality of Mainville J.A.'s nomination to the Quebec Court of Appeal, the Quebec government might consider referring the eligibility question to the Quebec Court of Appeal -- a decision in which would probably not be reached before LeBel J.'s replacement is named.

Who knows whether Mainville J.A. will be elevated. For the moment, this is pure speculation. But speculation should be informed by an appreciation of the legal risks involved.