On Wednesday, I was at the Québec Court of Appeal as it heard the oral arguments in the reference on the constitutionality of Justice Mainville’s appointment. The Québec government, supported by Rocco Galati (a Toronto lawyer who had originally challenged Justice Mainville’s appointment before the federal court) and the Constitutional Rights Centre Inc. (a public interest litigation outfit), argued that 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” prohibited the appointment. Although Justice Mainville had been a Québec lawyer for 33 years, he was then appointed to the Federal Court of Canada, and subsequently to the Federal Court of Appeal. This, they said, means that he is no longer “from the bar of” Québec and thus ineligible. The federal government, supported by the Canadian Association of the Provincial Court Judges and the Grand Counsil of the Crees, contended that, having been a member of the Québec bar in the past, Justice Mainville satisfied the s. 98 criterion.
This blog has already hosted something of a mini-debate on the constitutionality of Justice Mainville’s appointment, with my friend Maxime St-Hilaire arguing against it, and me arguing that the appointment is indeed constitutional. Many of the arguments heard on Wednesday echo those prof. St-Hilaire and I made in these posts. It was a long day, too, and it would not be all that useful to produce a detailed report of everything that was said. Instead, I will structure my report by talking of a few themes that were raised, more or less directly, in the argument, and also one that wasn’t, but perhaps should have been ― or at least, should feature in the Court’s thinking.
Also, in the interests of readability, I will split the report in two. In this post, I will address the issues having to do with the authorities which the Court of Appeal will need to interpret to answer the question before it. In the next post, I will take on the issues that go beyond interpretation.
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The first theme I want to talk about is constitutional interpretation. That’s a dangerous subject that fascinates constitutional law nerds (such as yours truly) too much, and which, in the United States, causes a lot of energy to be wasted on debates on which little may turn. (For a withering ― and entertaining ― criticism of the state of this debate, have a look at Richard Posner’s recent book Reflections on Judging.) In Canada, we have been largely free of this debate, at least in the courts. Charter cases, which is where most of the action in constitutional law has been for the last 30 years, barely even refer to the constitutional text. The occasional federalism cases courts decide mostly concern the development of judicial doctrines. But in the last couple of years, constitutional interpretation has come back ― in l’Affaire Nadon, 2014 SCC 21, [2014] 1 S.C.R. 433 (statutory when it started, but constitutional by the time the Supreme Court was done with it!), Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, and now in the Mainville reference. Unfortunately, the lack of both practice and theory means that we don’t really know what to do about it.
Although all the parties declared themselves, to various extents, proponents of purposive interpretation, those arguing against the constitutionality of Justice Mainville’s appointment favoured a rather originalist approach, as Québec had already done in the argument for the Senate Reform reference. (Indeed, Québec started its reply with the suggestion that we “go back to 1867.”) They argued that the bargain struck at confederation was absolutely and unconditionally binding, and the preoccupations that of the people who struck that bargain were the key to interpreting the text in which they enshrined it, and devoting much attention to the 92 Resolutions and to Sir Hector-Louis Langevin’s debates with Antoine-Aimé Dorion. (We might chuckle at Americans obsessing about the writings of James Madison and Alexander Hamilton, but we no longer have any right to do so, if we ever did. And at least, Madison and Hamilton are rather more inspirational figures than Langevin and Dorion.) And each of the parties denying the constitutionality of Justice Mainville’s appointment warned the Court about the danger of “living tree” constitutionalism, with Mr. Galati going so far as to say that it was inappropriate in non-Charter cases.
Their opponents, by contrast, embraced the “living constitutionalist’ approach, pointing out the changes in the organization of the bar and judicial institutions since Confederation, and saying that s. 98 must be read in such a way as to achieve its purposes within today’s context. Yet the federal government, at least, supplement its argument with heavy doses of originalism.
The Court, for its part, seemed unwilling fully to follow Québec down the originalist path ― and adopt what one of the judges described as “interpretation fixing the law in 1867.” The court systems of 2014 and 1867, the Court suggested, were “two worlds,” making an “evolutive” interpretation necessary. It also seemed reluctant to make too much of s. 94 of the Constitution Act, 1867, which in theory allows common-law provinces ― but not Québec ― to “make uniform” their private law, and which in the view of those opposed to the constitutionality of Justice Mainville’s appointment is evidence that Québec’s legal specificity must receive greater protection than that of the other provinces.
One thing that could not be done, everyone agreed, was to read s. 98 literally, so that “from the bar” really means “from the bar.” Under that reading, judges could not even be promoted from the Superior Court to the Court of Appeal (as four of the five members of Wednesday’s panel were), and this was too much even for Mr. Galati, despite his obvious enjoyment at posing as the man who would do justice though the sky fall.
Beyond that, the best suggestion on interpretation came, in my view, from Sébastien Grammond, who represented the Provincial Judges (and whose arguments in both l’Affaire Nadon and the Senate Reference I had also found very thoughtful and compelling). Prof. Grammond pointed out that, in the absence of a tradition of judicial interpretation of s. 98, and with the legislative texts implementing it themselves not paragons of clarity, we cannot very well understand the nuances of the meaning of the constitutional language. In such circumstances, originalist interpretation risks leading us astray. And as for the claim that the “living tree” approach is only suited for Charter cases, those who would defend it should recall that the the “Persons Case,” Edwards v. Canada (Attorney General), [1930] A.C. 124, from which that metaphor originates, was not a Charter case at all.
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In addition to interpreting s. 98 of the Constitution Act, 1867, the Court also has to interpret a much more recent text ― the Supreme Court majority’s opinion in l’Affaire Nadon. The questions about it concern both its specific ratio ― the true grounds for the opinion ― and thus the extent to which it governs the Mainville reference, and also its broader implications.
The parties arguing that Justice Mainville’s appointment is unconstitutional argued that the Nadon reference stood for the proposition that the phrase “from among the advocates of [Québec]” in s. 6 of the Supreme Court Act included only current, but not former, members of the bar because the currency of bar membership was necessary to provide Québeckers with the assurance that judges appointed to Québec seats would share their “social values,” in addition to being qualified in Québec’s civil law. In their view, the phrase “from the Bar of that [Québec]” in s. 98 was effectively identical to that used in s. 6 of the Supreme Court Act, and had also to be interpreted as including a requirement of current membership ― albeit not in the Québec bar, but rather in Québec’s bar or courts. The contrary interpretation, they said, would fail to provide Québeckers with the assurance that their judges would be in sync with their legal tradition and values.
Those defending the constitutionality of Justice Mainville’s appointment, by contrast, said that the Nadon majority’s comments about assurances and values were not dispositive, and that the textual and contextual differences between the two cases meant that l’Affaire Nadon is not binding. In particular, they pointed to the fact that s. 6 specifically named two courts the judges of which could be appointed to the Supreme Court ― by implication preventing the appointment of the judges of other courts ― and emphasized the absence of analogous wording from s. 98.
The Court seemed to share these views, suggesting that the Nadon majority’s opinion rested on a “en effort of very careful exegesis” of ss. 5 and 6 of the Supreme Court Act. It was one of the judges who suggested that the Nadon majority’s comments regards Québec’s “social values” were in obiter, on which those who defended the constitutionality of Justice Mainville’s appointment eagerly seized. And during Québec’s reply, the Court quite clear took the view that the Nadon majority’s opinion was based on the rule inclusio unius est exclusio alterius.
Beyond the problem of figuring out the specific ratio the majority opinion in l’Affaire Nadon, there was also that of its broader import. Québec argued that it was a positive decision, enshrining a “generous” interpretation of a fundamental constitutional compromise. The federal government, by contrast argued that, although dictated by statutory text, the outcome of l’Affaire Nadon was nothing to celebrate, and certainly not “generous,” and that if the Court of Appeal could avoid extending it, it should by all means do so.
When l’Affaire Nadon was decided, I thought that the majority’s comments about the importance of Québec judges on the Supreme Court being seen as representing Québec’s “social values” was crucial to its opinion. I still don’t think that they can really be characterized as obiter dicta. At the same time, they weren’t all there was to that opinion, which also put considerable weight on what it took to be the “plain meaning” of s. 6 as excluding former lawyers. As the federal government and others pointed out, nobody is arguing that the same “plain meaning” considerations apply here. Ultimately, I think that the best characterization of the majority opinion in l’Affaire Nadon is one also suggested by the federal government ― it stands for the proposition that the specific wording of s. 6 reasonably advances its values-representation purpose (and must therefore be given full effect), although it is not the only way to achieve it. Since s. 98 is drafted differently from s. 6, it is possible to see it as implementing a similar purpose in a different way, and even the Supreme Court’s values talk is not a mere obiter, it does not dictate the outcome of the Mainville reference.
As for the broader significance of l’Affaire Nadon, I remain of the view it is not a good thing for Québec. Limiting the paths open to Québec’s jurists is not, it seems to me, a “generous” thing to do ― especially when the same limitations are not imposed on their counterparts from other provinces. But this point leads me to a theme I want to discuss, in my next post ― identity.
Double Aspect 
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