The lawyer who challenged the Harper government and won by Sean Fine, August 22, 2014, The Globe and Mail
Wherever I’ve gone this year in Canada, lawyers are talking about Rocco Galati. What’s Rocco going to do next? If the Prime Minister tries any funny business with the courts, Rocco will stop him. Rocco won’t sit by …
It’s as if Mr. Galati, the Toronto lawyer who brought grief to the Conservative government, has been designated the Unofficial Opposition. He’s the first person ever to challenge a Prime Minister’s appointment of a Supreme Court judge. And he won. All the resources Stephen Harper and his government could bring to bear, and this upstart spending $42,000 of his own money won the case. And he’s not done.
Canada’s Unofficial Opposition is eating a tuna salad, washed down with red wine (a Negroamaro, an earthy wine from Friuli), at an outdoor patio on College Street in Toronto’s Little Italy, just down the street from the three-storey house he has turned into an office for his small law firm. The government never thought someone named Galati could defeat it, he says.
“They were so arrogant in assuming that an argument from me couldn’t win or shouldn’t win, because we live in a tribal culture. You’re only an expert if you’re anglo or francophone.… That’s been made clear to me for 26 years. I’d put my win ratio in impossible cases up against anybody’s, yet I’m still ridiculed when I bring a challenge. How does that work?”
But the real question is – why him? Why not someone else in this country of lawyers?
Mr. Galati and I have a lot to talk about. We have so much to talk about that the batteries in my tape recorder run out of juice. Mr. Galati, an amiable provocateur, goes across the street to buy me new ones.
Snazzy in a beige linen suit with a striped shirt and grey-patterned tie (only the open-toed sandals hint at non-conformity), the 55-year-old comes from a world far from Ottawa’s Wellington Street, where the Supreme Court and the Parliament buildings sit in a majestic row. He and his 12 siblings were born in Calabria, in southern Italy. Five of them died in early childhood. His father, a farmer, was court-martialled twice and interned because he didn’t want to fight in Mussolini’s army.
“He always told me the fascists don’t come marching in overnight. It’s a slow march.”
His father came to Toronto in 1965, found work in construction, and brought the family over a year later. Only three of the children received any formal education, Mr. Galati says. But that includes a brother who, though he had only two years of public schooling, went to the University of Toronto as a mature student and became a lawyer.
“Because of my sense of history, I don’t like the idea of injustice. Growing up in Toronto was no picnic in the sixties and seventies. It was a very brutal, racist environment. The police were enforcing wartime regulations. On College Street, up until Trudeau rewrote the loitering laws, more than two Italian males could not congregate. They’d get billy-sticked home by the police.”
Although he is Catholic, he says his family was Jewish, on both sides, at one time. (When I first met him at his office, he showed me his late grandfather’s Argentine identification document from 1918, framed on the wall. It has a Star of David on it.) He says most people don’t realize how many Jews (and Muslims) used to live in Calabria, or about the violence used to kill or convert them in previous centuries. It’s a recurrent theme of his – the loss of historical memory.
A fighter for long shots, he was a long shot himself. He says he was once assessed in school as intellectually handicapped, and it was only through the efforts of an English teacher at his technical high school, who recognized his perceptiveness in Shakespeare studies, that he was able to go to an academic school for Grade 13.
Bob Dylan saved him from life as an electroplater. He quit his job to move to Montreal to learn to read the poet Arthur Rimbaud in French; he came to Rimbaud knowing that he had influenced Bob Dylan.
“He was not very popular in his early years. That was to my liking – this guy stands on what he believes.”
Once again, his future (and Canada’s) was altered by the kindness of a teacher. He enrolled in non-credit courses in poetry at McGill University, and a teacher told him he’d written a publishable poem, and saw to it that McGill accept him as a full-time student. Despite an A- average, journalism schools and teachers’ colleges rejected him – he still wonders if it was because of his name.
At York University’s Osgoode Hall Law School in Toronto, he learned that his love of Bob Dylan stood him in good stead: Constitutional law was like poetry.
“I had a professor at Osgoode, a very bright man, Graham Parker, who I took courses on statutory interpretation from. He said to me, ‘Do you read or write poetry?’ I said, ‘Yeah, I do both.’ He said, ‘I can tell. Reading statutes is as difficult as reading poetry.’”
He started his law career by working for – of all places – the federal Justice Department. “It seemed the best place for me to get to court frequently.” But he owed $122,000 in bank and student loans, and the interest rate was 22 per cent; his salary was $29,000. If not for his financial need, “I might have stayed, because I enjoyed the kind of law they did.”
On Sept. 30 last year, Prime Minister Stephen Harper announced his choice for a Quebec vacancy on the Supreme Court: Justice Marc Nadon of the Federal Court of Appeal. It was an unusual choice in several respects: He was semi-retired; he was a maritime law specialist (hardly a big need on the court); and he was little-known. The Canadian legal community raised hardly a peep.
But in early October, Mr. Galati stepped in. He filed a lawsuit in Federal Court, saying the choice was illegal under the Supreme Court Act, which governs appointments. Federal Court judges can’t be appointed for any of the three spots reserved for Quebec judges, he said. There was nothing personal in it, he says. “In fact, I like Justice Nadon. I was tormented by bringing the challenge. I thought he was a good judge. I got along with him. That’s not the point. If it was my father, I would have brought the challenge.”
Justice Nadon immediately stepped aside, pending a resolution of Mr. Galati’s lawsuit. Then, Quebec’s National Assembly passed a unanimous resolution opposing the appointment. Prime Minister Harper then asked the Supreme Court to rule on whether it was legal.
So why didn’t anyone else challenge the appointment? “Look,” Mr. Galati says, “there are about 300,000 lawyers in Canada. I think 299,995 think they’re all going to the Supreme Court and they don’t want to blow their chances. They’re worried about their reputation.”
Few thought he had a chance to win. “Most people in the legal establishment thought his case was frivolous,” University of Montreal law professor Paul Daly says.
Fighting the odds is nothing new for Mr. Galati. Early in his career he argued 27 separate times in Federal Court that government officials need to provide reasons for their decisions. Finally, in Baker v. Canada, a 1999 deportation case on which he was co-counsel with Roger Rowe, representing a Jamaican immigrant mother, he won his point at the Supreme Court. “It was epoch-making,” Prof. Daly said. “Your liberty and sometimes your life are really in the hands of a government official. Because of Baker, the government has to give reasons for finding against you.”
In the Nadon case, he had a secret advantage: he knew the Supreme Court Act inside and out from another improbable case. Four years ago, he learned that a judge hearing a constitutional challenge of his was 77 – two years past retirement age – and that the chief justice could appoint a retired “deputy judge” if he needed someone to hear a case. The Federal Court had followed the practice since its creation in 1970, and a predecessor court since 1927. In 80 years, no one had challenged the practice. Mr. Galati did, in Felipa v. Canada, and won.
We are having a good laugh.
In an earlier story, I somehow managed to slip his quote about the Harper government enjoying “urinating on the Constitution” past my editors. “I say that all the time,” he tells me. “You’re the first guy who put that in.”
Few outside of legal circles realize the lasting importance of the Nadon case. The Supreme Court gave itself the protection of the Constitution; from here on in, any changes to its composition will require provincial consent. On Mr. Galati’s back, the court insulated itself from tampering.
Although he calls that “a big win,” he still describes the ruling as a disappointment. “The way they politically split it is inconsistent and illogical.” (The court said Federal Court judges can be named to the six non-Quebec spots on the Supreme Court.)
It’s news to him that lawyers everywhere are talking about him. “That’s strange,” he says. The case hasn’t changed his life, “except taking away time from my family and from my billable hours.”
He makes his money from doing tax law, not constitutional cases.
And now he has launched a challenge to another of the Harper government’s judicial appointments – that of Federal Court of Appeal Justice Robert Mainville to the Quebec Court of Appeal, and any subsequent appointment to the Supreme Court.
“The other thing I hear – ‘You won the Nadon reference, but that’s because nobody likes Nadon; everyone likes Mainville.’ What kind of kindergarten debate is that, really? That’s just stupid. Liking or not liking has nothing to do with it.”
“I hear, ‘Mr. Justice Mainville wanted a transfer to Montreal for personal reasons.’ I sympathize. Are they going to bend the Constitution for me? Should we bend the Constitution for any individual? Well, no. If we do, we’re back into l’état, c’est moi. We’re back to the divine right of kings, Louis XIV and the Versailles culture.
“This is why stacking of the courts is a very serious concern. There’s only one difference between a dictatorship and a constitutional monarchy: a fair and independent judiciary standing between the authority of the state and the rights of the citizen.”
I tell him I need to pay him for the batteries so no one can accuse me of anything. I give him $5.
“Yeah, okay,” he says. “I’m going to give you $1.50 back because as a lawyer I won’t be bribed either.” And he does.
In his own words:
Rocco Galati on the business of law:
“If I go broke, I’m no good to anybody. A lot of good lawyers who do a lot of good work lose sight of the business side and they go under.”
On the source of his sharp tongue:
“It comes from my mother. She had a great, quick wit and was very quick with a metaphor. Everything that came out of her mouth was original and often funny.”
On his previous work representing suspected terrorists:
I saw it as the civil rights issue of the day.”
On his chances of winning his challenge, filed in Federal Court, to the appointment of Federal Court of Appeal Justice Robert Mainville to the Quebec Court of Appeal:
“The Federal Court, because they’re human beings, is going to be resistant to the idea because he’s one of their own. [Is it appropriate for APEGA to investigate bad professional behaviour by members? How often does APEGA rule against one of their own?] You know that beautiful line in O Brother, Where Art Thou? where the evil sheriff is the personification of the devil, and says ‘The law is a human institution?’ Therein lies the historic, ageless tension between the rule of law and human capriciousness and tribal impulses.”
On whether the Supreme Court will grant leave to appeal, if the Mainville case goes that far:
“What’s in it for the Supreme Court at this point? Nothing, they’ve constitutionalized their status. Will they care about one judge? Maybe not. There are a lot of variables that have nothing to do with the law, but with human frailties and dysfunction and a non-adherence to the idea of law.” [Emphasis added]
[Refer also to:
How Harper bungled Supreme Court appointment: Prime Minister Stephen Harper’s decision to appoint Marc Nadon, of the Federal Appeal Court, to the Supreme Court of Canada is problematic for several reasons
Justice Nadon expressed something of his judicial philosophy in a notable judgment in 2009 involving accused (now convicted) terrorist Omar Khadr, imprisoned at Guantanamo Bay, Cuba, since he was a teenager. In dissent, Justice Nadon gave a strong, even passionate rejection of Canada’s responsibility to try to repatriate him. The Supreme Court affirmed that point of view, but its ruling criticized the Canadian government’s treatment of Mr. Khadr. Justice Nadon, on the other hand, found Canada mostly blameless. ]