In my last post, I wrote about two of the issues that arise in the reference regarding the constitutionality of Justice Robert Mainville’s appointment to the Québec Court of Appeal: the interpretation of the Constitution Act, 1867 and specifically of its section 98, which provides that “[t]he Judges of the Courts of Quebec shall be selected from the Bar of that Province,” and the import of the Supreme Court’s decision in l’Affaire Nadon, Reference re Supreme Court Act ss 5 and 6, 2014 SCC 21,  1 S.C.R. 433. In this post I will consider two additional issues, which go beyond the interpretation of purely legal sources. One of them featured prominently in last Wednesday’s oral argument, while the other not at all. Yet both, I think, are important.
The first of these issues, the one that was raised quite explicitly by the parties and the Court on Wednesday was that of identity. Indeed, for me this was the biggest surprise of the hearing ― the extent to which, as the day progressed, the argument became not only about the meaning of legal texts old and new, but about what what it means to be a Québecker and a Québec lawyer. Of course, this question cast a shadow over l’Affaire Nadon, where the majority opinion, in my view, “reflect[ed] ― and reinforce[d] ― a sadly narrow view of what it means to be a Quebecker and a Québec jurist.” And it was, I suppose, inevitable that, after appearing in that opinion, even if it was mostly between the lines, it would feature in this case. Still, it was remarkable how prominent it was, and how strong the emotions it aroused were.
The parties claiming that Justice Mainville’s appointment was unconstitutional argued that a lawyer could only remain steeped in Québec’s “social values” and be an effective representative of Québec’s legal tradition if he or she remained a member of the Québec bar or its bench. Québec’s lawyer, Francis Demers, emphasized the importance of the judges’ representative functions, warning of judges who have, in the past, been tempted to introduce common law concepts into Québec’s civil law. Questioned during his reply, he would not even grant that one of the Supreme Court’s Québec judges could be appointed to the Québec Court of Appeal if he or she so chose. Rocco Galati compared the potential appointment of a federal court judge to a Québec court to “a drop of cyanide” that would poison Québec’s legal tradition, and warned that if one such judge could be appointed, more could follow, since “there is no shortage of them.” Paul Slansky, for the Centre for Constitutional Rights, insisted that Québeckers cannot have confidence in a judge who served on one of the federal courts, in the same way as, in the first half of the 19th century, they could not have confidence in British judges appointed to serve in the courts of a province about which they knew nothing. Even though the judges of the federal courts also apply Québec’s law, he said, they do so in the name of Canada, not Québec, and people, “separatists” especially, could take it badly should one of them be appointed to the Court of Appeal.
The parties arguing that Justice Mainville’s appointment is constitutional, by contrast, advocated a much broader vision. The pool of potential judges must be enlarged, not restricted. Federal institutions apply Québec’s law and are themselves part of Québec’s legal system. Provided that one has been a member of the Québec Bar at some point, one does not cease being a Québecker by working there. Are the judges appointed to represent Québec on the federal courts, as Justice Mainville was, or indeed on the Supreme Court, no longer members of Québec’s legal community? If the Court were to so conclude, both the federal government and Sébastien Grammond, on behalf of the Canadian Association of Provincial Court Judges, warned, attempts to weed out those deemed insufficiently good Québeckers would not end with the exclusion of federal court judges.
For its part, the Court was very skeptical of the idea that a Québecker ceased being enough of a Québec lawyer after a passage, however brief, at the Federal Court. One of the first questions to Mr. Demers was whether Justice Mainville’s 33 years of practice at the bar were “wiped out” (lessivé). Mr. Slansky’s comparison of Justice Mainville’s appointment to that of British judges was “a bit apocalyptic,” one of the judges suggested; indeed, it was difficult to think that Québeckers would be offended by it. The Court seemed to accept the federal government’s contention that s. 98 was intended to prevent the appointment of lawyers from other provinces, but did not exclude those Québec lawyers who had subsequently worked outside of the province. The experience of a Québec lawyer, once acquired, could not be erased, it suggested.
As for myself, I am of course on the side of those defending the constitutionality of Justice Mainville’s appointment. The implication of l’Affaire Nadon that the judges of the federal courts are somehow out of touch with Québec, when they live across the river from it and constantly hear cases there is unfortunate, and it should not be extended beyond any more than it must. Prof. Grammond was right to speak of a crispation identitaire on the part of those claiming that jurists exposed to the purportedly nefarious influence of federal law without the allegedly magical shield provided by continued membership in the Québec Bar will lose touch with Québec. Such a crispation is only par for the course, I suppose, for a government committed, whatever political party controls it, to using nationalist ideology to maximize its own powers. But I must say there was something unseemly about a pair of Toronto lawyers making the same sort of arguments ― in English! ― and effectively telling Québeckers how best to protect their culture and legal tradition. They are, I am sure, well-intentioned gentlemen, but despite their good intentions, the effect of their position is to confine Québeckers to their own province, and prevent them from making Canada as a whole their country ― in exact accordance with the wishes of the separatists for whose feelings Mr. Slansky expressed such concern.
This brings me to the final theme I want to discuss ― this notion of public “confidence” in the courts, which is supposedly at risk of being undermined by the appointment of judges said to be out of tune with Québec’s “social values.” Regrettably, nobody challenged it at the hearing. Let me do so here.
The claim that public confidence in Québec’s judiciary depends on none of its members having served on the federal courts prior to his or her appointment is simply bogus. The public is abysmally ignorant even of basic facts about society and electoral politics ― everywhere, not just in Québec. The level of public ignorance about the legal system is no less appalling. Don’t take my word for it ― take the Court of Appeal’s. In a judgment delivered the same day the Mainville reference was heard, R. c. Turcotte, 2014 QCCA 2190, the Court had the following to say about a a collection of press articles concerning the case, one of the most heavily mediatized in Québec in recent years, which according to the Crown “expressed the opinion of an informed public” :
We find there a variety of opinions, more or less nuanced, more or less objective, more or less measured, more or less superficial. Many provide inexact facts, or do not supply crucial ones. Most are silent about the legal principles that are essential to making a decision [in such a case]. Some opinions inflame anger and distort the debate. Few faithfully relate the facts and correctly set out the applicable principles. Overall, one must conclude that they do not meet the criterion of the reasonable person set out in the case law. 
Or, if you don’t believe the Court’s assessment of the ignorance of the supposedly “informed public” about the the legal system, just ask yourself a couple of questions. How many members of the public could name any judges on the Québec Court of Appeal? How many lawyers, even, know the biographies of more than a few? (Heck, I probably don’t… ) All this to say, that the public won’t even be aware of Justice Mainville’s existence and appointment to the Court of Appeal, never mind the fact that, prior to that appointment, he served on the Federal Court of Appeal. It stands to reason that their confidence, such as it is, in the Court or in the judicial system more broadly cannot be affected by something they don’t know.
Admittedly this is a guess. I am not knowledgeable about the empirical research on this topic in Canada, if there is any, and the American surveys I have seen only address the public’s confidence in the U.S. Supreme Court ― not the Courts of Appeals. (Though that might itself be an indication ― the Supreme Court at least registers on the public’s radar screen; lower courts, not so much.) But it is perhaps useful to have a quick look at a different area ― that of election law. Courts, both in the U.S. and in Canada, have uncritically accepted the claim that the imposition of voter identification requirements contributes to public confidence in the integrity of the electoral process by helping to counter perceptions about the existence of voter fraud. This seems like a plausible enough inference ― but an analysis of the survey evidence on voter perceptions of the prevalence of fraud has shown that they are not correlated with the strictness of the identification requirements in place!
Difficult to assess, “soft” considerations such as what it means to be a Québec jurist or public confidence in the courts should not be decisive in any legal case. They certainly need not be decisive in the Mainville reference. To the extent that the Court of Appeal does consider them, however, ― and it will inevitably have at least the former on its collective mind, as it was much discussed at oral argument ― they are not obstacles to its holding that Justice Mainville’s appointment is constitutional. On the contrary, they support this conclusion ― which is also the one that is correct as a matter of constitutional law. At the hearing, the Court of Appeal seemed inclined towards that conclusion. There is no reason why it should change its mind.