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Lawyer questions Harper's 'subversive mess'

OTTAWA - Constitutional lawyer Rocco Galati was in the middle of a month-long sojourn on the Indian subcontinent when word reached him Friday that he'd brought down a Supreme Court appointee and rattled the legal underpinnings of the Conservative government.

But the man who first challenged Prime Minister Stephen Harper's choice of Justice Marc Nadon for the top bench was not in a celebratory mood after playing David to a constitutional Goliath.

"When I started this I was very, very clear and convinced that I was right and that this was as clear as a bell to me," Galati told The Canadian Press in a telephone interview from Karachi, Pakistan.

In an unprecedented reference, the top court agreed by a 6-1 margin that Nadon was not eligible to sit amongst them and that the government could not unilaterally rewrite the Supreme Court Act rules on the composition of the bench.

"I just regret the fact the government can make a subversive mess of our Constitution and it's got to be private citizens like me — at my own expense, this has cost me a lot of money, my own time, energy and money; I'm not getting any of that back — to clean up what?" said Galati.

"To clean up the mess of the subversive government that doesn't want to respect the Constitution. Why should a private citizen have to do that, quite frankly?

"If I hadn't brought the challenge, Justice Nadon would be deciding cases as we speak."

The reference ruling came a day after the top court had struck down retroactive Conservative changes to parole eligibility, ruling them a clear breach of the Charter and pointedly noting "that enactment of Charter-infringing legislation does great damage to that confidence" in the justice system.

The back-to-back rulings by a court that now has a majority of Harper appointees reinforces a growing impression in legal circles that the Conservative government is playing fast and loose with the law.

Some, such as Justice Department whistle-blower Edgar Schmidt, are openly questioning who in government is minding the constitutional store.

"If the attorney general, the prime minister, Governor General and the chief justice of the Supreme Court aren't, it's pretty pathetic that they rely on citizens," Galati said.

It's hardly the first time the Toronto lawyer, who specializes in constitutional and immigration law, has stepped up to kick the court system in the shins.

In 2011, the Federal Court of Appeal ruled that the Federal Court was in breach of the law after Galati questioned why retired judges over 75 were being retained as deputy judges, despite mandatory retirement language in the Federal Courts Act.

Thirteen deputy judges had to be let go.

"People said to me in that case, 'They've been doing it for 60 years, how can it be wrong?'" Galati related in an interview last November.

"I said, 'Nobody's challenged it.'"

Ultimately, private citizens must be prepared to step up and challenge government and the courts, Galati said Friday.

"It's probably apt, because the Supreme Court in 1951 ruled specifically that the Constitution doesn't belong to either government. It belongs to the citizens and it's there that we find our protection," he said.

"That's true, it's often the citizens that bring up these challenges. It's just pathetic that the court doesn't recognize that the citizens who are grieved by these constitutional breaches shouldn't have to be the ones to pay to fix the constitutional breaches."

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