Nov 13, 2014

Summary: Re ss. 5, and 6 of Supreme Court Act

Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 (CanLII)

The reference asks the Court to determine what the proper interpretation of ss. 5, and 6 of the Supreme Court Act (“SCA”) are. Specifically, whether s. 6 of the SCA contains a temporal requirement that persons “from the advocates” of the province must be current members of the Quebec bar. The Court is also asked to consider whether Parliament can legislate an interpretation of s. 6 of the SCA that would allow former members of the Quebec bar, with a minimum of 10 years standing, to be eligible under s. 6 of the SCA.

The Majority of the Court concludes that to meet the definition of “from the advocates” a judge must be selected from among the current members of the Quebec bar. Parliament cannot unilaterally amend the SCA.

Interpretation of ss. 5, 6

Both a textual and purposive interpretation of the provision lead the Majority to conclude that former advocates are excluded from appointment to the Supreme Court as being “from among the advocates” under s. 6. Section 6 contains a temporal requirement. The language of s. 6 is more restrictive than the language of s. 5 of the SCA. Section 5 speaks to both current and former members of at least ten years standing with the bar. In contrast, s. 6 does not speak to, and by extension encompass, former members of the bar.

Section 6 is an important provision in protecting the central bargain made by Quebec in negotiations leading up to Confederation. As was agreed to, s. 6 ensures that judges on the Supreme Court have civil law training and represent the legal and social traditions of Quebec society. Quebec’s confidence in the Court depended on representation of the province.

Amending Formula

Unanimous approval of the provinces would be required make constitutional the proposed amendment to the SCA. The SCC is a constitutionally essential court that engages both federal and provincial interests. The unanimity formula is reserved for topics that engage the interests of all provinces; the formula effectively creates veto power in each individual province and territory.

The SCC has constitutional protection. Its status as a constitutionally protected Court is supported by the developmental history of the Court, which the Majority goes into some detail on. In 1949, for example, when the right of appeal to the Judicial Committee of the Privy Council was abolished the SCC became the Court of last resort; an integral part of the constitutional architecture. “it became the final arbiter of division of powers disputes, and became the final words on matters of public law and provincial civil law.” Later, the Court abolished appeals as of right in Civil matters, giving the Supreme Court wider discretion over the cases it hears.

For the majority composition means more than 9 judges, 3 from Quebec. Composition entails that the members of the bench meet eligibility requirements. It means who is eligible to be one of the three judges from Quebec. Incidentally, the SCC suggests that composition entails continued existence of the Court.


Moldaver J. authored a strong dissent. To have had standing at the Quebec bar for over 10 years, while not a current member, is sufficient to meet the eligibility requirements under s. 6 of the SCA.

It would be an odd result if re-joining the Quebec bar for one day could change a judge’s eligibility.

The textual links between ss. 5, and 6 restrict the Court from interpreting s. 6 as including a temporal element. Reading ss. 5, and 6 of the SCA together it cannot be said that Quebec appointees are under more stringent eligibility requirements than their common law counterparts.

Section 5 uses the language “Any person may be appointed a judge who is or has been” a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province”. The words any person suggest that the “eligibility requirements set out in that section apply to all appointees.” “The judges” referred to in s. 6, must be the ascertained judges that are eligible under s. 5.