Cross-Purposes

I wrote some time ago about the challenges, legal and political, to the appointment of Justice Marc Nadon to the Supreme Court.  I argued that although the appointment was unwise because Justice Nadon did not bring enough to the Court, the legal challenge to it, on the basis that he did not fulfill the requirements of s. 6 of the Supreme Court Act as a Québec judge (not being, allegedly, an “advocate of that province”) was without merit. An interesting new paper by Michael Plaxton and Carissima Mathen argues otherwise.

Professors Plaxton and Mathen take issue with the conclusions of  an opinion of (the former Supreme Court Justice) Ian Binnie to the effect that an appropriately contextual and purposive reading of s. 6 did not exclude potential judges who had been lawyers in Québec in the past, but had given up their Québec bar membership (in Justice Nadon’s case, in order to serve on the Federal Court and then the Federal Court of Appeal). Justice Binnie, they say, fails to give to consideration to one of the purposes of s. 6; but, as or more importantly, he was wrong to allow legislative purpose to eclipse the plain text of the provision.

While Justice Binnie took the purpose of s. 6 (as well as of s. 5) to be to ensure that members of the Supreme Court have a certain minimum degree of experience, professors Plaxton and Mathen argue that s. 6 “also reflects the need to assure Quebeckers that members of the Supreme Court have … expertise” (20) in Québec’s civil law. Parliament’s chosen way to provide this assurance is by requiring that the prospective Québec judges’ relationship with the practice of the law in the province be “ongoing,” as evidenced by a current, rather than a former, bar membership or a seat on one of Québec’s courts. If the purpose of s. 6 is understood in this way, then the exclusion of federal court judges from appointment to one of the Québec seats is not absurd; it even makes sense, contrary to what Justice Binnie said, that a lawyer who could have been appointed directly to the Supreme Court after a career at the bar becomes ineligible after serving on the Federal Court of Appeal despite this experience obviously making him or her more, rather than less, qualified.

There is anyway a danger, say professors Plaxton and Mathen, in paying too much attention to the purpose of a statute at the expense of its text. One might do that, after all, not only to relax the text’s apparent requirements if they appear more stringent than necessary to fulfill the statute’s purpose, as Justice Binnie proposes to do with s. 6, but also to strengthen them if they seem insufficient. So if the purpose of s. 6 is to ensure expertise, we might as well read the requirement of actual expertise into the law. But of course we don’t want to be in the business of ascertaining a potential judge’s actual expertise, much as we don’t want to ascertain the level of maturity of a voter. Statutes can provide easy-to-verify requirements which will serve as proxies for the accomplishment of their purposes ― age as a proxy for the maturity of voters, an ongoing connection to the legal practice in Québec for Supreme Court judges. Of course, the proxies are imperfect, but a legislative choice in favour even of an imperfect proxy deserves deference.

This is a good point (and the analogy to voting age rules hits home, because I have myself argued for a bright-line rule in that case, against Ilya Somin’s suggestion that young voters’ political knowledge be tested in order for them to accede to the franchise before they turn 18), but I am not persuaded. Even if our first reaction is to defer to a legislature’s choice of a proxy measure to ascertain the realization of the purpose it is pursuing, so that we should be wary of going too quickly to the purpose to circumvent statutory text, there can be no such thing as unlimited deference. If the proxy chosen by the legislature is unreasonable, it forfeits its claim to deference.

Hence the importance of professors Paxton and Mathen’s argument to the effect that current membership in the Québec bar or a place on the Québec bench is a good proxy for something important, “a current understanding of Quebec civil law” (19). I do not think that this argument succeeds though. S. 6 is simply too poor proxy for the purpose professors Plaxton and Mathen impute to it. It it both over- and underinclusive for this purpose. Overinclusive, because it not only does not prevent the formalistic workaround of a federal court judge resigning office, re-joining the Québec bar of a single day, and then being appointed to the Supreme Court, but also, and more importantly, because it does not prevent the appointment of a lawyer who, while paying his fees and thus maintaining membership in the Québec bar, has no ongoing connection with it. Professors Plaxton and Mathen worry that on Justice Binnie’s interpretation of s. 6, 

it would be possible to appoint a person who practiced law in Quebec for 15 years, but for the past 10 years has lived and practiced in Vancouver, ensconced in the common law system. … [I]f the point is to assure Quebeckers that the Supreme Court can draw on judges who are familiar with and sensitive to French Canadian legal traditions, that result looks … problematic.

But of course, even on their interpretation it would be perfectly possible to appoint that person provided that he or she had the foresight of paying Québec bar fees and doing the occasional continuing legal education course.

Furthermore, if the purpose of s. 6 is understood in this way, it is underinclusive too, because on its face, it seems to prevent the appointment not only of federal court judges, but also of those of Québec’s provincial court, who surely cannot be reasonably said not to have an ongoing connection to the province’s legal practice. In short, s. 6 does not really fit the purpose identified by professors Plaxton and Mathen better than that identified by Justice Binnie.

Beyond this, I think one should be cautious about divining the purpose of a statute from the statements of some individual parliamentarians, on which professors Plaxton and Mathen seem to place a good deal of reliance. As Justice Binnie shows, the difference between the wording of sections 5 and 6 of the Supreme Court Act, which seems to suggest a narrower eligibility for Québec seats on the Supreme Court than for others, is a historical quirk. His analysis of these provisions is, in my view, fully persuasive.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading. View all posts by Leonid Sirota