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Toronto lawyer takes aim at Supreme Court choice

A person walks from the Supreme Court of Canada in Ottawa on Feb. 27, 2013. A Toronto lawyer is teaming up with the Constitutional Rights Centre Inc. to challenge the legality of the Prime Minister’s latest appointment to the Supreme Court.

Sean Kilpatrick/The Canadian Press

Rocco Galati appears to revel in kicking Goliath in the shins.

The Toronto lawyer is teaming up with the Constitutional Rights Centre Inc., to challenge the legality of the Prime Minister's latest appointment to the Supreme Court of Canada.

Considering most lawyers won't even venture an anonymous comment on the controversial choice of Justice Marc Nadon, Mr. Galati is out there on the legal field of battle alone.

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Justice Nadon, 64, a semi-retired judge from the Federal Court of Appeal, was nominated by Prime Minister Stephen Harper on September 30 to fill one of three seats reserved for Quebec on the top court.

What had been a surprise nomination of a little-known jurist became a cause célèbre when Mr. Galati filed an application to challenge the selection.

And while the focus has been on Justice Nadon's Quebec-specific qualifications, Mr. Galati in an interview made the case that no Federal Court judge should be appointed to the Supreme Court.

"They are trying to open the back door to stack the court with Federal Court judges," Mr. Galati said.

He'll be making that argument to, among others, Justice Marshall Rothstein, who was a Federal Court of Appeal judge before being appointed to the top court by Mr. Harper in March, 2006.

Mr. Galati argues that the Supreme Court was designed to reflect the country by appointing judges and lawyers representing different regions.

Section 6 of the Supreme Court Act lays out specific rules with regard to Quebec's three Supreme Court representatives. But Mr. Galati will argue that by convention the court has also included three judges from Ontario, one from B.C., one from the Prairies and one from Atlantic Canada.

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"You can see how a government can stack a court by taking people they've appointed to their own Federal Court for 20 years," he said. "It's court stacking, judge stacking."

The fact that three previous Federal Court denizens (although none from Quebec) have served on the Supreme Court, including Justice Rothstein, is not the point, says the lawyer.

Those appointments "were wrong," said Mr. Galati. "Nobody raised this issue."

Mr. Galati acknowledges that few in his profession want to tackle legal challenges of the composition of the bench.

But win or lose, he says the case is important.

"If the law and the Constitution does not apply to the judiciary, then the judiciary loses its moral and legal authority to expect us to follow their interpretation of the law."

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