Thanks to the good offices of a friend, I have been able to get my hands on the factums filed in the Mainville Reference, in which the Québec Court of Appeal will consider the constitutionality of the appointment of a judge of the federal courts to a superior court of Québec ― and, more specifically, that of Justice Mainville of the Federal Court of Appeal to the Québec Court of Appeal. As they are public documents, I am able to share them with you. Here they are: Québec’s, arguing that Justice Mainville’s appointment is unconstitutional because it violates the requirement of s. 98 of the Constitution Act, 1867, that “[t]he Judges of the Courts of Quebec … be selected from the Bar of that Province”; and Canada’s, arguing that Justice Mainville’s appointment is constitutional.
Those of you who recall my debate with Maxime St-Hilaire, who argued that Justice Mainville’s appointment was yet another show in “Harper’s festival of unconstitutionality,” and with whom I disagreed, will not be surprised to learn that I find Canada’s factum by far the more persuasive. It makes some of the same points I raised in my post: notably, that there are textual differences between the Constitution Act, 1867 and the Supreme Court Act, which make the Supreme Court’s ruling in l’affaire Nadon, based on the latter, inapposite to l’affaire Mainville, which concerns the former; and that as the roles of the Supreme Court and the Québec Court of Appeal are different, so are the purposes of the provisions regulating appointments to them. It also has a very thorough review of the history of the eligibility to the Québec bar (intended to show the different purposes driving these requirements and those for appointment to the bench). While Québec, as is its wont, stresses the need to abide by historical bargains, I think that the federal government’s use of history is less rhetorical, and more effective.
I will have a separate post on what I see as the main weaknesses of Québec’s argument later on. For now I just wanted to give you an opportunity to look at the factums for yourselves.