What You Wish For

As promised, here are some thoughts on the Supreme Court’s opinion in l’affaire Nadon,  Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. As I mentioned in my last post, which summarized the majority opinion and Justice Moldaver’s dissent, I think that the majority opinion is a weak one. I should note that my views here seem to be very much in the minority. The commentary I have seen so far is 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. (The Supreme Court’s willingness to reason in this way, however, is probably very bad news for the federal government’s unilateral Senate reform plans.) 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, which no commentator, as best I can tell, has yet addressed.

To be sure, the issue of the meaning of the Supreme Court Act’s eligibility provisions was not a simple one. Emmett Macfarlane has a point when he writes 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 are ultimately responsible for the shambles that Justice Nadon’s nomination has become. 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.

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.

21 thoughts on “What You Wish For”

  1. The argument that this ruling deters talented lawyers from accepting appointments to the Federal Court is overstated. While it’s true that some particularly ambitious judges with designs on 1 of 3 spots on the SCC might be deterred, a few people turning down spots on the Federal Court does not mean that there will suddenly be a dearth of talented judges from Quebec on that court. Talented lawyers can still be appointed from private practice (Sopinka? Binnie?) and the Superior Court and Court of Appeal. I find it hard to believe that so many strong candidates for the Federal Court will turn down a job there that the only Federal Court judges from Quebec will be a kind of ‘B’ team.

    1. It’s just guessing, of course. I think there’s value in the old saying that it’s a bad soldier who doesn’t want to become a general. And since we’re talking about such small numbers, even losing one or two great judges in a generation would still be a shame.

      1. I don’t think the Courts of Appeal from the provinces are so qualitatively inferior that Canada is ‘losing’ brilliant judges. Judges appointed to the SCC from the federal court are in the minority, with Rothstein being the only following Nadon’s rejection.

        Bigger than the issue of how many judges must be currently practicing members of the Quebec Bar is the opaque and arbitrary appointment process. Right now, I’m not sure how you’d be able to rank the quality of the candidates with any accuracy. Not including the SCC, FCA, and FC, there are 1056 judges in Canada. Seems like a big enough pool to choose from, especially since I’d argue that by the time someone’s a judge, they aren’t rank and file.

        I’m interested in your argument about the “sadly narrow view of what it means to be a Quebecker and a Québec jurist”. Unlike in politics where, say, Chrystia Freeland can live elsewhere for many years and return to run in Canada, do you not think that it’s preferable that those appointed to the bench* be as immersed in the society that they pass judgment on as possible? There’s nothing stopping that person from the International Court of Justice from coming back to Quebec/Canada for a few years before elevating them to our country’s highest court. I agree with you abstractly that critical thinking transcends borders, so why value that judge from RDL over the an ostensibly better qualified candidate from outside Quebec? But, then, is it better to take someone who, to some standards, is more talented than someone who is more current with the issues in our society? I don’t know, but I’m curious as to what you think.

        *Who are likely already from a class of society where they may- stress may- not be plugged into the everyday issues of the people that pass through their courts.

      2. It’s not a question of some courts being inferior to others at all. The point is simply that there might be one great judge whom the government would like to appoint ― and of course their ranking of potential candidates, like anyone else’s, will be subjective, but that’s just part of what a government gets to do ― and they shouldn’t be prevented from having the person they think is best appointed by the fact that he or she happens to be a Quebecker sitting on the FCA. (Note though that there can be some objective considerations in play, such as the need for particular subject-matter expertise on the SCC, and in some cases, like tax and admin law, the FCA is particularly likely to supply it.)

        As for people who are away not being current with issues in Canadian society, I don’t buy that. Not even in politics (see here, in the context of the right to vote: https://doubleaspectblog.wordpress.com/2012/05/23/is-there-voice-after-exit/), and still less for a judge, to whom the issues are presented by the litigants. Also, I don’t think that the idea of coming back in anticipation of an appointment is realistic ― and I’d rather have as a judge someone who had the presumption to do that! (Not to mention that the question of whether pre-appointment bar membership must be continuous is still open!)

      3. I see you would have preferred Riker take a captaincy rather than remain Number One on the Enterprise.

  2. Excellent post Leonid,

    There is another point to make, which I think was glossed over by the majority (and, respectfully, by Mathen and Plaxton). The Majority states:

    [57] It might be argued that excluding former advocates of at least 10 years standing at the Quebec bar does not perfectly advance this twofold purpose because it might exclude from appointment candidates who have civil law expertise and who would in fact bring Quebec’s legal traditions and social values to the Court. In other words, it could be argued that our reading of s. 6 is under-inclusive when measured against the provision’s objectives.

    [58] This argument is not convincing. Parliament could have adopted different criteria to achieve the twofold objectives of s. 6 — for instance by requiring a qualitative assessment of a candidate’s expertise in Quebec’s civil law and legal traditions — but instead it chose to advance the provision’s objectives by specifying objective criteria for appointment to one of the Quebec seats on the Court. In the final analysis, lawmakers must draw lines. The criteria chosen by Parliament might not achieve perfection, but they do serve to advance the provision’s purpose: see Michael Plaxton and Carissima Mathen, “Purposive Interpretation, Quebec, and the Supreme Court Act” (2013), 22 Const. Forum const. 15, at pp. 20-22.

    I thought Mathen & Plaxton put the point better, but no matter. The problem is where, as you note, one’s interpretation is so far off from achieving the presumed purpose, we have to wonder whether we got the purpose right, or the interpretation right, or both. Undoubtedly, if the language of section 6 were clearly limited to current members of the bar, that would be the end of it. As Mathen & Plaxton point out, where legislatures draw clear lines, even imperfect ones, to achieve a cognizable purpose, its not typically up to the court to redraw them. The problem here is that the lines weren’t clear, at least as far as I can tell. That’s the entire point of a purposive analysis – to try to figure out which line they intended to draw, in a way that best achieves the purpose of the scheme and the legislative intention. But you cannot say you’re relying on a purposive analysis, and then when it is pointed out to you that your purpose as easily or better fits with an alternative interpretation, say well they’re nothing we can do about it, the legislature was clear. I wouldn’t say that is doing a purposive analysis so much as rejecting a purposive analysis in favour of the supposed plain meaning.

    As an aside, did anyone else notice that the Court didn’t mention Driedger’s “one principle” of statutory interpretation, which developed as the preferred and more sophisticated alternative to the plain meaning approach?



  3. Who in hell do these guys think they are?They are all unelected…They have no business having any say in who gets in or out of the Supreme Court.It is up to the Government of Canada and as it,s leader PM Harper to appoint.Unelected anything should have time limits also.Just so this kind of BS never happens.And all you experts are full of crap on this subject.You say what you think will make you look knowledgeable and with it.Well average Canadians are as knowledgeable as any of you so called experts and we say Canada picks the supreme court,NOT 8 UNELECTED JUDGES.

    1. Stephen Harper has very few rules limiting his appointments to the SCC. If you have a problem with anyone, it’s him and his inability to follow those few constraints on his power in this area. The Court isn’t appointing someone to itself, only enforcing a long-standing rule that Harper tried to skirt. And SCC judges have to retire at 75, which is a time limit.

      To review:
      1) the SCC didn’t choose to appoint an ineligible member, the democratically elected Prime Minister did.

      2) There are time limits on SCC appointments,


      3) Harper asked them to clear up any ambiguity with the rule, which they did. The result simply wasn’t in his favour. All they did was their job.

      You might disagree with the reasoning or the result, but the SCC isn’t trampling on our democracy with this decision.

  4. Bertie says: “… all you experts are full of crap on this subject.You say what you think will make you look knowledgeable and with it.Well average Canadians are as knowledgeable as any of you so called experts and we say Canada picks the supreme court,NOT 8 UNELECTED JUDGES.” This is presumably an example of the populism that is one aspect of the party Stephen Harper leads. It raises more questions than it answers. Who are these average Canadians, what are their qualifications for assessing complicated issues, and how and where do they express their collective opinion? And how does Mr. Harper speak for them?

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