As promised, here are some thoughts on Québec’s factum in the Mainville reference, in which it argues that judges of the federal courts cannot be appointed to Québec’s Superior Court or Court of Appeal. Such appointments, in Québec’s view, would contravene s. 98 of the Constitution Act, 1867, which provides that “[t]he Judges of the Courts of Quebec shall be selected from the Bar of that Province.” Québec’s position is that, while the words “from the Bar of [Québec]” are not meant to be read literally (as applying only to active members of the bar), they encompass current lawyers and former lawyers who are now judges on Québec’s ― but not federal ― courts. In my view, this position is untenable. I have already set out my general argument in support of the constitutionality of appointing former members of the Québec bar who have become judges on federal courts, such as Justice Mainville here. In this post, I will focus on what I see as some of the key weaknesses of Québec’s argument to the contrary.
One weakness of the Québec factum is that it decontextualizes its historical arguments relative to the function of s. 98 as a protection of Québec’s distinct civil law system. It does so, first, by insisting that s. 98 is fundamentally different from s. 97, which provides ― on its face anyway ― the exact same guarantee to common law provinces, stating that “the Judges of the Courts of those Provinces appointed by the Governor General shall be selected from the respective Bars of those Provinces.” Indeed s. 98 is arguably somewhat dependent on s. 97 in that it omits the words “appointed by the Governor General” ― yet Québec agrees with the federal government (quite rightly, in my view) that they must, in effect, be read into s. 98. The other difference between these two provisions, which Québec stresses, is that s. 97 is said to apply only until the civil law and procedure of the common law provinces has been “made uniform” (pursuant s. 94 of the Constitution Act, 1867). Québec claims that this means that while s. 98 is “a fundamental guarantee for Québec,” s. 97 is merely “an element of transitional law” (par. 73; translation mine). But of course, whatever, the expectations that might have existed in 1867, the civil law and procedure of the common law provinces was never “made uniform” (as Québec acknowledges); indeed, so far as I know, no attempts at unification were ever made. Section 94 gave the provinces the choice to unify their law or not, and s. 97 ensured that until they chose unification, their judges would be versed in their law. Thus s. 97 is no less a fundamental guarantee for the common law provinces than s. 98 for Québec.
The other element of context which Québec conveniently ignores is that federal courts simply did not exist in 1867. Before 1867, and for some time thereafter, it was true that the only people who were trained in Québec’s civil law were the members of the Québec bar and the judges of its courts. To respect the “fundamental guarantee” of civilian judges on Québec courts, only such people could be appointed. The federal courts ― the Exchequer Court and the Supreme Court ― came into existence only in 1875. Québec itself says that the framers of the Constitution Act, 1867 were concerned not to freeze the court system as it existed then by enumerating courts in the constitution. To say that the 1867 constitutional bargain did not allow the appointment of federal court judges to Québec courts is to say nothing at all, because there were no federal judges back then.
This leads me to the second flaw I see in Québec’s argument, which is that it presents the federal court as something alien to Québec, its law, and its legal culture. Some former members of the Québec bar, it contends, can be appointed pursuant to s. 98 ― those, that is, who “have retained a continuous, tangible, and concrete relationship with Québec’s legal milieu” (par. 92). That’s a plausible-sounding test, albeit a rather vague one. But Québec asserts that “only the members of Québec’s courts who have been appointed to the bench because they were, prior to their appointment, members of the Québec bar, retain such relationship” (par. 92). Why only “Québec’s courts”? It’s worth recalling ― though Québec’s factum ignores this too ― that all the federal courts have seats reserved for judges “appointed to the bench because they were, prior to their appointment, members of the Québec bar.” Justice Mainville was such a judge. But federal courts, Québec suggests, are not really civilian courts, because they apply neither “civil law” in its narrowest sense nor Québec’s legislation inspired by the civilian tradition. But, as the federal government points out in its factum, federal law is inspired by the civil law tradition as much as by the common law. And if it is not, then the judges of the Criminal and Penal Division of the Court of Québec should also be ineligible for appointment under s. 98, since they, even more than the judges of the federal courts, spend their time applying federal law and it alone. Besides, as the Federal government cogently points out in its reply factum (at par. 14), many judges of the Federal Court have in fact made ― and have been recognized as having made ― outstanding contributions to Québec’s law and legal culture.
Québec’s position is thus inconsistent. Indeed, one wonders whether it is not the result of an attempt to manufacture a constitutional theory that fits a politically pre-determined result. Consider, in conclusion, the following hypothetical. Suppose that Justice Wagner decides, in a few years, that he wants to pull a Lord Denning and to come back to the Québec Court of Appeal. Unlikely, of course, but the precedent is there. (Indeed, Chief Justice McLachlin did something similar too, briefly, going from the the BC Court of Appeal back down to the (trial) Supreme Court, as Chief Justice, before her appointment to the Supreme Court of Canada.) Under Québec’s interpretation of s. 98, he couldn’t do it, since he is no longer a member of the Québec bar, nor at this point, a judge of one of Québec’s courts. On this view, by going off to represent Québec’s law and social values at the Supreme Court, he has severed the relationship to its legal milieu necessary to authorize his appointment to one of its superior courts. How does that make sense? It would be interesting to see Québec’s lawyers answer that one… especially in front of Justice Wagner himself, if the matter goes to the Supreme Court.