Oct 15, 2014

I believe that the majority opinion in Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, which held that judges appointed to a Québec seat on the Supreme Court must be current, not merely former, members of the Québec s. 96 bench or bar, and that Parliament's attempt to make former Québec lawyers or judges eligible for membership was unconstitutional is quite weak. (My summary of the decision for CanLII Connects is here). I should note that my views here seem to be very much in the minority, most commentators being very enthusiastic. Carissima Mathen has written that “[t]he Court has held the government to account [and] asserted its independence“; Adam Dodek has described it “an instant landmark ruling, a classic ruling,” and Paul Daly, as “a huge day for the Canadian federation.” I am sorry to dissent from such esteemed jurists. Yet dissent I must, because, in my view, the majority’s opinion neither responds to some of the most serious arguments against it, including those articulated by Justice Moldaver, nor considers the unfortunate consequences that it is bound to have.

With respect to the statutory interpretation issue of whether s. 6 of the Supreme Court Act allows the appointment of former, rather than current members of Québec’s bar or s. 96 judiciary to the Supreme Court, I basically agree with Justice Moldaver’s dissenting opinion. With respect to the meaning of s. 6, the majority opinion acknowledges that it must be read together with s. 5, which provides the minimum criteria of eligibility, notably the 10-year bar membership requirement and, to use Justice Moldaver’s expression, “cherry-picks” among the possible ways in which these provisions can be combined. If the 10-year requirement must be read into s. 6, then why not the possibility to appoint former judges or lawyers?

The key to the majority opinion is really its view that the purpose of s. 6 is not only to ensure that the Supreme Court has sufficient expertise in the civil law, but also that it is seen as having such expertise and representation of Québec’s “social values,” whatever those might be and, further, the assertion that the Court can only be so seen if its members are, at the time of their appointment, current members of Québec’s bar or s. 96 bench. With respect, this view is mistaken.

As Justice Moldaver, I do not believe that there is any substantial connection between current membership in Québec’s bar or s. 96 bench and a judge’s legitimacy as Québec’s representative on the Supreme Court. Judges of Québec’s provincial court are steeped in Québec’s legal and social reality, yet they are excluded; so are judges of the federal courts, even though they are specifically appointed there as representatives of Québec’s civil law system, and regardless of the amount of time they have spent on there. At the same time, a lawyer who spends his or her career abroad but maintains membership in the Québec bar is eligible. How this mix of eligibility criteria serves to make potential appointees more legitimate representatives of Québec is beyond me. Prof. Mathen and Michael Plaxton have argued, and the Supreme Court’s majority has agreed, that although imperfect, it is still a reasonable proxy for the purpose of ensuring the Court’s legitimacy, but the fit between these criteria and the alleged purpose is so loose that it seems more reasonable to me to suppose that the statutory purpose must be different from that which these criteria so poorly support.

Indeed, taking the idea that current membership in Québec’s legal profession is required to make a judge a legitimate representative of the province on the Supreme Court leads to the absurd conclusion that the longer a Québec judge sits on the court, the less legitimate he or she is, by virtue of his or her allegedly growing detachment from Québec legal culture and “social values.” I do not believe that anyone has ventured such a suggestion, but it seems to follow from the logic adopted by the Supreme Court’s majority. That logic, in my view, reflects ― and reinforces ― a sadly narrow view of what it means to be a Quebecker and a Québec jurist. As André Pratte has pointed out,

[i]f we follow [this] reasoning, a lawyer who practiced for 10 years in Rivière-du-Loup would be a more suitable representative for Québec than a brilliant jurist who, for example, spent a part of his career with the International Court of Justice. (Translation mine).

The majority’s reasoning does not get any better when it gets into the constitutional part of its opinion. Indeed, the neither the majority nor Justice Moldaver really explain how any part of the Supreme Court Act gets to be constitutionally entrenched, despite not being mentioned in the Schedule to the Constitution Act, 1982, apart from asserting that the Court is so important that it just has to be. But the Court was already important before the entrenchment of the Constitution Act, 1982 ― yet not constitutionally protected. Indeed, our original supreme court ― i.e. the Judicial Committee of the Privy Council was stripped of its jurisdiction by ordinary acts of Parliament. Nor does the majority explain why eligibility criteria, including the length of required bar membership, are part of the Supreme Court’s “composition.” As a strictly textual matter, this does not seem obvious to me, and Justice Moldaver’s doubts in this respect would, at the very least, have deserved a response.

The majority’s opinion is thus poorly argued (indeed, it is more asserted than argued, if argument entails responding to counter-arguments), yet it will have unfortunate consequences. In particular, it will limit the pool of Québec jurists available to sit on the Supreme Court; and, from now on, it will deter talented and ambitious Québecois from applying to sit on the federal courts, which will undermine these courts’ quality and, ironically, their ability to represent Québec’s legal community and tradition.

Another consequence of the majority’s reasoning, which I do not mind but which ought to displease some of the the Court’s decision’s supporters, is that a law restricting future Supreme Court appointments to bilingual candidates would be unconstitutional. Since the constitutionally entrenched “composition” of the Court “refers to ss. 4(1), 5 and 6 of the Supreme Court Act, which codify the composition of and eligibility requirements for appointment to the Supreme Court of Canada as they existed in 1982″ (par. 91; emphasis mine), the addition of a requirement of bilingualism would be every bit is unconstitutional as the removal of a (purported) requirement of current membership in Québec’s s. 96 bench or bar. Now this consequence may well be a feature, not a bug of the majority’s opinion. Be that as it may, I think it is important to point out this effect of the decision.

To be sure, the issue of the meaning of the Supreme Court Act’s eligibility provisions was not a simple one. Emmett Macfarlane had a point when he wrote that “there were clear legal reasons to support either outcome” ― not clear, perhaps, but serious ones. Still, I think that on the issue of the legislation’s purpose, Justice Moldaver wins hands down. And even if the legal issue could have gone either way, the Court ought to have considered the consequences of its decision and reasoning, which in my view clearly weighed in favour of allowing the nomination of federal court judges to the Québec seats of the Supreme Court.

Of course, it is the federal government and the Prime Minister who were ultimately responsible for the shambles that Justice Nadon’s nomination became. They wanted to pick a fight with the legal community ― they got it, and the country will be worse off as a result. But the same can be said of Québec’s friends and defenders, who will have ended up undermining the province’s representation on the federal courts and perhaps the Supreme Court too, not to mention making impossible the enactment of legislation requiring judicial bilingualism which many of them deemed desirable or even necessary. Be careful what you wish for.

[Adapted from a post originally published on March 22, 2013, at http://doubleaspectblog.wordpress.com/2014/03/22/what-you-wish-for/]