The Canadian government is facing yet another challenge to its most recent judicial pick – a justice to serve on the Quebec Court of Appeal

Once again, the objection is coming from Toronto lawyer Rocco Galati, who launched a successful challenge in October to the government's appointment of Justice Marc Nadon to the Supreme Court to fill a vacant Quebec seat. Nadon was ruled ineligible because he served on the Federal Court and was not a member of the Quebec bar association.

This time, Galati is challenging the nomination of Justice Robert Mainville of the Federal Court to the Quebec Court of Appeal, a move which was announced Friday by Justice Minister Peter MacKay.

Galati, a constitutional lawyer, issued a challenge in the Federal Court Monday morning because Mainville is not a current member of the Quebec bar. 

It was a challenge from Galati last year that led to the federal government's embarrassing loss when the Supreme Court ruled that Marc Nadon was not eligible to serve Quebec on the top court because he was a Federal Court judge.

In March, the top court ruled only current Quebec bar members or Quebec judges from the Superior or Appeal Court were eligible to sit as a Supreme Court justice representing Quebec. The decision wiped out Nadon's appointment because he had come directly from the Federal Court. Such appointments are not allowed under the Supreme Court Act, the top court ruled, and said that changing the law would require a constitutional amendment.

Now, Galati's argument is that Mainville, as a Federal Court judge, cannot be appointed to the Quebec Court of Appeal.

Sec. 98 of the Constitution states, "The Judges of the Courts of Quebec shall be selected from the Bar of that Province."

Galati, reached by phone in Toronto, said, "This is very clear. Under Sec. 98 [of the Constitution Act], the judges have to be chosen from the bar."

The lawyer, who along with the Constitutional Rights Centre, issued the challenge, says it doesn't matter that Mainville in fact was a member of the Quebec bar just five years ago.

"Some people say, 'It's only five years,' but if you open this door ... today, five years, tomorrow, 25," he said.

As a Federal Court justice, Mainville is no longer considered a member of Quebec's bar.

A slip of the tongue?

On Monday in question period in the House of Commons, MacKay seemingly made a curious slip of the tongue, when he said Mainville's been "a member of the Quebec bar, Mr. Speaker, for 33 years and sat as a Federal Court judge for five years. I believe his wealth of legal knowledge will be welcome at the Supreme Court."

MacKay was responding to a barrage of questions from the NDP asking why the government was trying to "get around the rules" over Mainville's appointment.

In a later answer, MacKay seemed to correct himself, saying Mainville "was a member of the Quebec bar association for 33 years," referring to Mainville's bar experience in the past tense. And he further clarified that by "Supreme Court," he meant Quebec's court of appeal, which, he said, is "the supreme court of Quebec."

MacKay said the NDP should get behind Mainville and support him "in his good work as a judge on the appeal court of Quebec."

Nevertheless, the unusual move with Mainville is widely seen as the government's possible attempt to get around the Supreme Court ruling on Nadon in order to appoint Mainville to the high court, which is why ears perked up when MacKay seemed to say he would be welcome there. 

Challenge is 'nothing personal,' Galati says

Although the Nadon reference to the Supreme Court was brought by the federal government, it was in response to a court challenge filed by Galati, who was the first to publicly argue Nadon was ineligible for the appointment.

In the Nadon case, the Supreme Court was not asked, so did not answer, whether a Federal Court justice would become eligible for appointment to the high court if he or she temporarily moved to an eligible court or rejoined the bar in Quebec.

MacKay last month denied media reports that the federal government told Nadon to resign from the Federal Court and rejoin the Quebec bar before his Supreme Court appointment last year. The reports said Nadon rejected the idea at the time.

Galati says he financed his challenge to Nadon's appointment largely out of his own pocket.

"Again, it's nothing personal, " he said, referring to his current challenge to Mainville. "It's just that he doesn't qualify. And here I go again. Digging into the line of credit."