Untenable

The Supreme Court will hear the oral arguments in l’Affaire Mainville this Friday. The issue in this case concerns the eligibility of Federal Court judges appointed from Québec, and thus former members of the Québec bar, for seats on Québec’s s. 96 Courts, pursuant to s. 98 of the Constitution Act, 1867, which provides that that “[t]he Judges of the Courts of Quebec shall be selected from the Bar of that Province.” More broadly, the eligibility of other former Québec lawyers is also in question. In past posts, I set out my argument for the constitutionality of such appointments; offered some thoughts on Québec’s factum at the Québec Court of Appeal, to which it had referred the question; reported on the interpretive and other issues that were canvassed during the oral argument at the Court of Appeal; and summarized and commented on the Court of Appeal’s opinion stating that the appointments in question were indeed constitutional.

In this post, I want to comment on two aspects of the factum Québec filed in the Supreme Court which I have not covered previously. The first is a somewhat new argument Québec makes: the claim that s. 98 must be interpreted consistently with s. 6 of the Supreme Court Act, which the Supreme Court interpreted in l’Affaire Nadon, Reference re Supreme Court Act ss 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433. The second is what I consider to be a deeply flawed version of originalism that is Québec’s favoured mode of constitutional interpretation.

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The coherence argument, which Québec develops in 4.2.2 of its factum, holds that because s. 98 and s. 6 of the Supreme Court Act

are both consitutional provisions that help protect the civil law system in the context of judicial appointments by the Governor General […] it is important to reconcile their interpretation so as to ensure the coherence of Canada’s constitutional structure. [113; translation mine, here and throughout.]

Québec seeks to use this argument to bolster its claim that a judge appointed to a Superior Court in the province (including the Court of Appeal) must have “contemporaneous” links with one of Québec’s “legal institutions” ― of which the Federal Courts are not one. The Supreme Court accepted the idea of contemporaneous links in l’Affaire Nadon ― but that was based, to a considerable extent, on contrasting the wording of s. 6 with that of s. 5 of the Supreme Court Act, which quite clearly allowed the appointment of former, and not only current, judges and lawyers. This contrast does not exist in the case of s. 98, making the textual argument for the contemporaneity requirement unavailable, or at least much more difficult. Hence the attempt to important this requirement through the “coherence” argument. Of course, in l’Affaire Nadon, Québec was on the side of those who insisted on the importance of the textual difference between ss. 5 and 6 of the Supreme Court Act. But now, it would seem that this argument has served its purpose and has been jettisoned ― coherence, ironically, be damned.

Yet apart from being ironic and inconsistent ― which may not trouble Québec’s lawyers but should, it seems to me, trouble the Supreme Court’s judges ― Québec’s position is also paradoxical. It makes sense to argue that provision A ought to be interpreted consistently with provision B when A was enacted after or at the same time as B. In both these cases, the interpretive presumption that the legislature (or the constituant) had B in mind when drafting A is perfectly sensible. However, what Québec is asking the Court to do is to interpret an earlier provision in light of a later one, about which the people who drafted and enacted the earlier provision could not have known. The logic of this position escapes me.

Before moving on, I briefly address another aspect of Québec’s coherence argument. Québec claims that, if its position is not accepted, it would be possible,

insofar as he had once been a member of the Québec bar, for a judge of a federal court or a common law provincial court to be appointed to one of the seats reserved to Québec on the Supreme Court, following a brief stint at the Québec Court of Appeal. [125]

This, according to Québec would amount to doing indirectly that which the Supreme Court in l’Affaire Nadon said could not be done directly, and should not be allowed. The trouble with this claim is twofold. First, it rather blatantly misrepresents the majority’s opinion in l’Affaire Nadon, which was careful to specify that it “[did] not decide”

whether a judge of the Federal Court or Federal Court of Appeal who was a former advocate of at least 10 years standing at the Quebec bar could rejoin the Quebec bar for a day in order to be eligible for appointment to [the Supreme] Court under s. 6. [71]

And second, Québec’s own interpretation of s. 98 allows the exact same run-around ― only for a different set of judges, namely those of Québec’s provincial court. They, no less than the judges of the federal courts, are excluded from appointment under s. 6, yet Québec argues that, as they possess the requisite contemporaneous link to the province’s “legal institutions,” they can be appointed under s. 98 ― and could thus be further appointed under s. 6. (NOTE: I hadn’t read it before posting this, but the factum of the Canadian Association of Provincial Court Judges makes this very point at par. 54.)

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I turn now to the issue of constitutional interpretation. Québec’s argument is heavily originalist. It is replete with claims about the “framers’ intent” (l’intention du Constituant), the compromise to which s. 98 purportedly gives effect, and the conditions prevailing at or in the decades prior to Confederation in 1867. Whether originalism is an acceptable mode of constitutional interpretation in Canada is, in my view, an open question. Canadian constitutional rhetoric tends to reject it out of hand, but the Supreme Court’s practice suggests that, outside the realm of Charter interpretation, the rejection may not as complete as it is often proclaimed to be. (I have some thoughts on this subject here.) Indeed, the federal government’s factum also draws heavily on historical, and arguably originalist, arguments, so that they are likely to feature prominently in the argument before the Court, and perhaps in its opinion too. So rather than a knee-jerk rejection of originalism, I want to offer a reason for being skeptical of the specific brand of originalist argument the Québec invokes.

As Lawrence Solum’s Legal Theory Lexicon entry for “Originalism” helpfully explains, there are a number of distinct varieties of originalism in American constitutional thought, the two most significant of which are “original intent originalism” and “original (public) meaning originalism.” The former held that constitutional texts had to be interpreted in accordance with the intentions of their framers. It mostly had currency in the 1970s and early 1980s, but came under criticism, partly because it was not clear just what the intentions of the framers were and at what level of generality they had to be considered, and partly because the intentions unexpressed in the actually enacted text were deemed irrelevant to legitimate constitutional interpretation. In response to the criticism, a different form of originalism developed and came to dominate, one that focused not on the framers of the constitutional text might have intended, but on the way in which the text that was actually enacted would have been understood at the time. Those who tend to reject originalism out of hand ― and this category includes many Canadian jurists ― tend not to be aware of this distinction. But it matters, and the Québec factum in l’Affaire Mainville shows why.

Québec’s claims focus on what it considers to have been the “intentions” of the framers of s. 98. Thus it argues that

the framers (Constituant), by providing that the judges of Québec’s superior courts would be chosen “from the Bar of that Province,” wanted to guarantee that the persons appointed to these courts would have not only a training endorsed by the Barreau du Québec but also that they would have a contemporaneous link with Québec’s legal institutions. [76; emphasis mine]

How do we know that the framers wanted this, though? Actually, we don’t know this. Because ― as the Federal government repeatedly points out ― that’s not what they wrote. What the framers wrote was a text that ― unlike s. 6 of the Supreme Court Act (on the Supreme Court’s reading, anyway) ― says nothing about the “contemporaneous link,” and still less about the nature of the institutions membership in which can, or cannot, satisfy this purported requirement. Québec is simply taking advantage of the fact that the intent of the framers cannot be known (indeed, it acknowledges that s. 98 was the subject of “little debate” [73] among the framers), and using it as a banner under which to carryits own interpretive theory that doesn’t have much to do with the only sign the framers left of their intent ― the text itself. This is exactly the problem that the critics of original intent originalism identified with that interpretive approach.

Instead of reverse-engineering the intent of the framers of which we have very little evidence, it would make more sense to look, as the proponents of original meaning originalism would have us, at what the constitutional text meant to the people of 1867. And here, the federal government has made, both at the Court of Appeal and now at the Supreme Court (at par. 51-52 of its factum), a crucial point, which is that in 1867, and for a considerable time thereafter, judges could remain members of the Québec Bar. The phrase “from the bar of [Québec]” would therefore not have been understood to exclude individuals who stopped practising law in order to become judges ― such as the judges of the federal courts or, for that matter, those of the provincial court.

All this is not to say that originalist arguments are dispositive, or even that they are valid. For my part, I believe that Sébastien Grammond was right when he suggested, at oral argument at the Court of Appeal, that we should be especially weary of originalist arguments in cases where there is no continuous tradition of judicial interpretations that could bridge the gap between the worlds of 1867 and 2015. However, to the extent that the parties and, possibly, the Court are going to rely on originalist arguments, they should not allow themselves to be led astray by arguments of the type that the vast majority of originalist jurists would reject.

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As I have argued from the moment the question arose, the appointment of Justice Mainville to the Québec Court of Appeal and, hypothetically, of other judges of the federal courts to Québec’s s. 96 bench, is constitutional. Québec’s claims to the contrary are not justified and was rightly rejected by the Québec Court of Appeal. Québec’s Supreme Court factum supplies no argument that would justify overturning this decision. On the contrary, its arguments are so weak as to demonstrate that its position is untenable.