11/10/2013 02:10 EST | Updated 01/23/2014 06:58 EST

Constitutional lawyer Galati takes on legal Goliath over Supreme Court choice

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

The Toronto lawyer is teaming with the Constitutional Rights Centre Inc., to challenge the legality of a 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, Galati is out there on the legal field of battle alone.

Nadon, 64, a semi-retired judge from the Federal Court of Appeal, was nominated by Prime Minister Stephen Harper on Sept. 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 celebre when Galati filed an application to challenge the selection.

And while the focus has been on Nadon's Quebec-specific qualifications, 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," 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 Harper in March 2006.

Galati argues 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 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.

"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 Rothstein, is not the point, says the lawyer.

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

The Conservative government has provided itself cover by seeking an opinion on Nadon's nomination from former Supreme Court justice Ian Binnie.

Galati says Binnie, as requested by the government, looked at Sections 5 and 6 of the Act but neglected Section 30, which deals with ensuring the court has quorum of at least five judges.

Section 30(2)(1) clearly states that if quorum doesn't include at least two Quebec justices, then a judge must be drawn from Quebec's "Court of Appeal or a judge of the Superior Court of that Province."

Galati believes that reinforces the more ambiguous wording elsewhere in the Supreme Court Act that Quebec's representatives must come from those two proscribed courts, and not the federal courts.

He says the fact the Conservatives saw fit to "clarify" the Supreme Court Act language in a budget bill this fall supports his case.

"If you have to change the wording to be clear like that, it wasn't the wording before the amendment," said Galati.

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

But he says he has had "hundreds" of emails, phone calls and letters since launching this challenge.

"Nothing but positive, saying 'Good for you'."

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."