This afternoon, the Québec Court of Appeal delivered its opinion in the Reference re Section 98 of the Constitution Act, 1867 ― which asked it to pronounce on the constitutionality of the appointment, to the Court, of Justice Robert Mainville who was, at the time of that appointment, a judge of the Federal Court of Appeal. The unanimous “Opinion of the Court” states that Justice Mainville’s appointment is, indeed constitutional.
The first substantive question the Court of Appeal addressed was the import of the Supreme Court’s opinion in l’Affaire Nadon, Reference re Supreme Court Act ss 5 and 6, 2014 SCC 21,  1 S.C.R. 433. Québec and the interveners who argued that Justice Mainville’s appointment was unconstitutional said that it controlled the outcome, since it concerned the interpretation of a provision (section 6 of the Supreme Court Act) whose wording was very similar to that of section 98 of the Constitution Act, 1867 at issue here, the two speaking of appointments “from among the advocates” and “from the Bar” of Québec respectively.
The Court of Appeal finds, however, that to say that the two provisions were in effect identical would “camouflage the complexity of the issue [in l’Affaire Nadon].”  In l’Affaire Nadon, the interaction of ss. 5 and 6 of the Supreme Court Act created a difficult problem of interpretation, whose resolution depended on “textual elements” of the Supreme Court Act (the presence of s. 5 itself, as well as the enumeration of courts whose judges could be promoted in s. 6, and the provision relative to ad hoc judges) that do not have equivalents in the Constitution Act, 1867. The Supreme Court’s opinion, therefore, is not dispositive.
The second issue the Court had to address was the interpretation of section 98 of the Constitution Act, 1867 ― a provision, the Court says, that “although consistently applied since [Confederation,] has gone largely unnoticed.”  The Court adds that
[t]he historic context therefore takes on particular importance, since in the almost total absence of case law and learned commentary, we can only shed light on the purpose of s. 98 of the Constitution Act, 1867 from that context. In this connection, [Québec] is right to emphasize that in matters of constitutional interpretation, a provision that embodies an historic compromise must be interpreted in a manner to preserve that compromise. 
The Court’s opinion, accordingly, draws heavily on the historical record ― but concludes that the compromise embodied by s. 98 is very different from the one that gave birth to s. 6 of the Supreme Court Act. The latter was motivated by worries about
the [Supreme] Court as a federal and bi-juridical institution within which the three judges from Québec would be relied upon to represent the civil law tradition. … It is in this context that confidence in the institution and its legitimacy, a determining factor for the majority [in l’Affaire Nadon] is rooted. 
Unlike the Supreme Court, which was created, against some resistance, in 1875, the Superior Courts with which s. 98 is concerned (as is s. 97, which according to the Court of Appeal ― and contrary to Québec’s claims ― is its exact counterpart) existed before Confederation. The challenge, in 1867, was to integrate the pre-existent judicial system into the new federal structure, not really to make that system acceptable ― that problem had largely been solved by then. Section 98 was a pragmatic means of ensuring that Québec’s judges were well versed in the civil law, but not a grand bargain like s. 6 of the Supreme Court Act.
Accordingly, the Court of Appeal rejects “the notion of contemporaneity”  that the Supreme Court read into the latter provision. Indeed, given the numerous appointments of trial judges to courts of appeal, and of provincial court judges to superior courts, to read s. 98 literally, as requiring the appointment of current members of the bar, “would quite simply violate common sense.”  Echoing the federal government’s submissions, the Court concludes that past the initial admission, “the status a [provincial] Bar confers on someone should not become the criteria [sic] of s. 98.”  Former members of the bar ― including the judges of the federal courts ― can be appointed to superior courts and courts of appeal.
This conclusion is consistent with what I have argued since my first post on this issue. But it is interesting nonetheless. For one thing, its historicist or, if you prefer, originalist approach to interpretation is a somewhat surprising choice, having been championed by the parties on the losing more than those on the winning side of the argument (though this might have been one reason that motivated the Court to choose it). For my part, I am inclined to agree with Sébastien Grammond, who argued, on behalf of the Canadian Association of Provincial Court Judges, that the absence of judicial decisions relative to a constitutional provision, which can serve as a bridge before the time of its enactment and the present, should give us pause before adopting such an approach to interpreting it. (Incidentally, I want to point out that the Court is not quite right in saying that there was no “learned commentary” relevant to the issue before it: bloggers ― Paul Daly, Maxime Saint-Hilaire, and, well, yours truly if I can count as “learned,” have provided some!)
And then, there is the dry tone of the Court’s opinion, and the things that it said nothing about. When I wrote about about the oral argument, I divided my report into two parts: the first dealt with the interpretation of s. 98 and of the Supreme Court’s opinion in l’Affaire Nadon, the second with the “soft” issues that went beyond interpretation, namely the meaning of being a Québec jurist and public confidence in the courts. The latter issues, I wrote, were “[d]ifficult to assess” and “should not be decisive in any legal case. They certainly need not be decisive in the Mainville reference.” The Court of Appeal’s opinion suggests that it was of the same view. Still I find their almost complete absence from its opinion striking. Of course this absence does not mean that the Court did not think about these issues ― and then chose not to say anything about them. Whether its reluctance to go beyond interpretation, motivated no doubt by a desire to appear judicial and apolitical, even at the expense of seeming a bit oblivious to the reality of the case before it is a good thing, I’ll let others judge.
For a few years, the Supreme Court had been in the habit of releasing very important decisions in the week just before Christmas. This year, it broke with the tradition of making what Sonia Lawrence described on Twitter as cadeaux pour nerds. Its last pre-Christmas decision, R. v. Fearon, 2014 SCC 77, was in my view the judicial equivalent of a lump of coal. Today’s decision by the Court of Appeal though, is the perfect gift for a constitutional law nerd ― it gets the result right, but leaves one with plenty to think about.