The group wants a declaration that Quebec judges must have 10 years of legal experience in the province
A legal challenge to former McGill Faculty of Law Dean Robert Leckey’s recent appointment to the Superior Court of Quebec bench is the first of its kind, according to the Quebec legal rights organization that filed the challenge last week, which argued that Leckey did not meet the minimum requirements for the role.
Under the federal Judge’s Act, which sets out rules on judges' appointment and employment conditions, eligible judicial candidates must have been “a barrister or advocate of at least 10 years’ standing at the bar of any province.” Alternatively, candidates need to have been a barrister or advocate “at the bar of any province” for an aggregate of at least 10 years, or “exercised powers and performed duties and functions of a judicial nature on a full-time basis” in a position held under federal or provincial law for the same amount of time.
Section 98 of the Constitution Act, 1867 stipulates that Quebec’s judges “shall be selected from the bar of that province.”
Droits collectifs Quebec argues that because Quebec has a unique legal landscape – the province is the only jurisdiction that uses the civil code, based on France’s Code Napoléon, while the rest of Canada uses the common law – Leckey needs at least 10 years of Quebec-specific experience before he can take the bench. According to the group, the Barreau du Quebec confirmed that Leckey has only been registered with the provincial legal regulator since 2017.
Droits collectifs Quebec Legal Director François Côté told Canadian Lawyer on Tuesday that he isn’t aware of any other cases that have challenged a judicial appointment on the same grounds.
The group’s aim “is to clarify and establish legal certainty as to what are the boundaries that must be respected when it comes to judicial nominations [and] to truly be respectful of the legal diversity here in Canada, where Quebec has its own legal tradition,” Côté says.
“It’s not just a cultural thing – it’s really a different set of legal, logical rules, which function differently and which must be recognized by judges who have sufficient experience as practitioners to be able to correctly apply it,” Côté says. “I have absolutely no doubt that Robert Leckey is a fine jurist. I have absolutely no doubt that he has a strong sense of justice.”
The lawyer adds, “It’s a much greater issue related to constitutional powers and the right of any province… to maintain its own modicum of legal autonomy in front of the centralized powers in Ottawa.”
Leckey was appointed to the Superior Court of Quebec by Minister of Justice and Attorney General of Canada Arif Virani in January. Before his appointment, Leckey spent 19 years at McGill’s Faculty of Law, starting as an assistant professor before being named dean in 2016.
According to Côté, Droits collectifs Quebec decided to file its challenge after noting that a press release announcing Leckey’s appointment failed to mention the date he was called to the Barreau du Quebec. The press release noted the dates the two other judicial appointees who were announced that day had been called to the bar.
The group's legal challenge, filed on Sept. 9 with the Superior Court of Quebec, seeks a declaration that the Judge’s Act and the Constitution Act, 1867 require nominees to the Superior Court to have been registered with the Barreau du Quebec for at least 10 years.
“Robert Leckey, in and of himself, is an individual case, but it’s a matter of principle,” Côté says of the group’s goal of securing a declaratory judgment from the court.
“We would like to… enlighten any future federal governments to the precise fact that the Judge’s Act must be read in accordance to what the constitution says and outlines when it comes to respecting the legal distinctiveness of Quebec, including in the matter of judicial nominations.”
In a statement on Tuesday, a spokesperson for the Department of Justice Canada declined to comment on the specifics of the case but said, “The Government of Canada is committed to appointing exceptional jurists that represent the diversity of Canada through an appointment process that emphasizes merit and transparency.”
Noting that eligibility requirements for judicial appointments to superior courts are outlined in the Constitution Act, 1867, and the Judges Act, the spokesperson outlined the process for superior court judicial appointments, which includes evaluation by Judicial Advisory Committees that feature representatives from each province and territory.
A spokesperson for the Superior Court of Quebec said neither the court nor Leckey would comment on the matter.
