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Another Conservative judicial appointment faces a legal challenge

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The Supreme Court of Canada in Ottawa on Tuesday, July 10, 2012. THE CANADIAN PRESS/Sean Kilpatrick

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The Supreme Court of Canada in Ottawa on Tuesday, July 10, 2012. THE CANADIAN PRESS/Sean Kilpatrick

OTTAWA - The Conservative government is defending its appointment of a judge to the Quebec appeal court in the face of the latest legal challenge from a Toronto lawyer who says Ottawa is breaking the rules.

Justice Minister Peter MacKay said Monday that Federal Court of Appeal judge Robert Mainville is eligible to sit on the Quebec Court of Appeal.

Toronto lawyer Rocco Galati and the Constitutional Rights Centre are asking the Federal Court of Canada to declare that the Constitution Act, 1867, prohibits such an appointment.

Galati's submission, filed Monday, also argues that Mainville is not currently a member of the Quebec bar, and that membership is a prerequisite under the Constitution Act for nomination to a Quebec court.

The Conservative government is trying to park Mainville on the Quebec appeal court before appointing him to the Supreme Court of Canada later this year, filling a pending vacancy from the province, Galati contends.

He believes the federal move is a calculated response to his successful challenge of the government's attempt to appoint Federal Court of Appeal judge Marc Nadon directly to the Supreme Court.

Galati contested that appointment, which the high court ruled invalid in March on the grounds it violated Quebec-specific provisions of the Supreme Court Act.

In first appointing Mainville to the Quebec appeal court, Ottawa is trying to ensure no similar procedural bumps when it later names him to the Supreme Court to replace Louis LeBel, who retires Nov. 30, Galati alleges.

"Obviously, they're trying to get around the Nadon ruling so that they can send him up to Ottawa in November," Galati said in an interview.

"It's just a cynical disregard, disdain and flagrant subversion of the Constitution."

Fuelling speculation the government intends to ultimately name Mainville to the Supreme Court was his appearance on a recent short list of candidates for the post obtained by the Globe and Mail newspaper.

In the House of Commons, NDP Leader Tom Mulcair accused Prime Minister Stephen Harper of baldly trying to do an end-run around the rules.

"Why is he defying both the letter and the spirit of the Nadon decision?" Mulcair asked.

MacKay, who handled the opposition's questions, did not directly address the point of whether Mainville is indeed being groomed for the high court. He simply defended Mainville's qualifications, saying the government is guided by merit and legal excellence.

"Mr. Mainville is an expert in public-sector law negotiations, administrative law, constitutional law," MacKay said.

"I believe his wealth of legal knowledge will be welcome at the Supreme Court and will be of significant benefit to the Quebec Court of Appeal."

MacKay was later pressed by Liberal MP Sean Casey on his use of the term "Supreme Court," which Casey took as an admission — inadvertent or otherwise — that Mainville would eventually be appointed to the high court.

"The Superior Court of Quebec is considered a Supreme Court in the province," MacKay coolly replied.

After question period, MacKay said the courts would decide Mainville's eligibility to sit as a judge in Quebec.

"I think he's eligible."

Follow @JimBronskill on Twitter

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