I think that the government should perhaps undertake somewhat more consultation in future. This appointment to the Supreme Court was made, and is now being challenged. To my knowledge, this is the first time such an appointment is challenged. The appointments of Justices Rothstein, Iacobucci and Le Dain, who all sat on the Federal Court of Appeal, were not challenged in the least.
The government itself took the lead by asking for legal advice on the issue, and this advice supported its choice. The lesson to be drawn is that there has to be a little more consultation, and perhaps the provisions of the Supreme Court Act should be clarified. If that act is interpreted correctly, in my opinion, it does allow for the appointment of judges from the Federal Court or the Federal Court of Appeal.