Reversing a Supreme Court decision is, normally, pretty difficult to do; all the more so when the decision is a constitutional one. One must re-litigate the case and hope to bring in new facts or legal arguments that will persuade the Court to change its mind. The only alternative, unless one is able and willing ― and no one ever is willing ― to invoke the Charter’s notwithstanding clause, is a constitutional amendment. (Incidentally, I recently discussed the prospects for reversing the Supreme Court’s recent disastrous labour rights decisions over at the National Magazine’s blog.) However, it seems that ― deliberately or not, I do not yet know ― the Barreau du Québec may have found a way to quietly reverse, in part, one of the Supreme Court’s most momentous decisions of recent years: its opinion in l’Affaire Nadon, Reference re . , and , SCC 21,  1 S.C.R. 433
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At issue in l’Affaire Nadon was the provision governing appointments to Québec’s seats on the Supreme Court, s. 6 of the Supreme Court Act, which the Court’s majority read as requiring an appointee to one these seats to be either a judge on the Québec Court of Appeal or its Superior Court, or “a current member of the Quebec bar with at least 10 years standing.”  The requirement of current bar membership excluded Justice Nadon and other judges of the federal courts, including judges appointed on the federal courts from the Québec bar, as well as judges of Québec’s provincial court, because they gave up their bar membership upon appointment to the bench.
They did because the Code of ethics of advocates, CQLR c B-1, in force until about one month ago provided, at par. 4.01.01a), that holding “judicial office on a permanent or full-time basis” is “incompatible with the practice of the profession of advocate.” However, as both the federal government and the Canadian Association of Provincial Court Judges observe in their respective facta filed at the Supreme Court in l’Affaire Mainville, the Code of Professional Conduct of Lawyers, CQLR c B-1, r 3.1, changes this rule.
The new Code provides, in its s. 139, that “the office of judge under the Courts of Justice Act … and the office of municipal judge on a permanent or full-time basis” “are incompatible with the practice of the profession of lawyer.” And the Court of Justice Act refers, in its s. 1, to “[t]he Court of Appeal; [t]he Superior Court; [t]he Court of Québec; [and] [t]he Municipal Courts.” The federal courts, as well as, say, international tribunals or, for that matter, the Supreme Court of Canada, are conspicuous by their absence. As the federal government and the Canadian Association of Provincial Court Judges point out, this means that the judges of these courts may now remain members of the Québec bar following their appointment.
Does it mean, then, that the judges of the federal courts, provided that they do not give up (or indeed resume) membership in the Barreau, may now be appointed to the Québec seats on the Supreme Court in their capacity as “current members of the Québec bar with at least 10 years standing,” as if l’Affaire Nadon had been decided the other way? I think that this is possible, but really, we have no idea. The answer turns on the exact meaning of the other big finding in l’Affaire Nadon: that the Constitution Act, 1982, entrenched the Supreme Court Act to some extent, and in particular that “[t]he eligibility requirements set out in s. 6 relate to the composition of the Court,” entrenched by s. 41(d) of the Constitution Act, 1982, “and are, therefore, constitutionally protected.”  The question is, what does the majority actually mean when it speaks of the “eligibility requirements set out in s. 6”? There are, I think, three possibilities here:
(1) Only the words, so to speak, of s. 6 are entrenched, while their meaning can evolve, so that the “advocates of the Province” to whom s. 6 refers are those recognized as such from time to time, and if the definition of that group changes, the pool of those admissible to a s. 6 appointment changes too;
(2) Both the words and the meaning of s. 6 are entrenched and cannot be changed by ordinary provincial law, including of course the Code of Professional Conduct, so that the definition of the “advocates of the province” has been frozen in 1982, with the enactment of s. 41(d) of the Constitution Act, 1982;
(3) Both the words and the meaning of s. 6 are entrenched and cannot be changed by ordinary provincial law, including of course the Code of Professional Conduct, so that the definition of the “advocates of the province” has been frozen since before 1982, and specifically since the moment when the Supreme Court became an entrenched part of the Constitution, which the majority opinion in l’Affaire Nadon suggests happened “as a result of its evolution into the final general court of appeal for Canada,” [95; emphasis in the original] which it became with the abolition of Privy Council Appeals in 1949.
I do not think that the majority opinion in l’Affaire Nadon says anything that would allow us to choose among these possibilities, and in my view it is impossible predict how the Court would rule if it were asked to do that. It is worth noting that the three possibilities have different consequences, all of them at least somewhat disturbing.
Possibility (1) would mean that the Barreau, or some other provincial authority if the way the legal profession is regulated in Québec ever changes, has authority over the actual meaning of a constitutional provision, s. 6 of the Supreme Court Act, and the Barreau has now validly exercised its authority to make it possible for judges of the federal courts and international tribunals to be appointed to the Supreme Court. Justice Nadon could not be appointed to the Supreme Court (assuming, of course, that the majority in l’Affaire Nadon was right, which I do not think), but similar appointments in the future would be valid.
Possibility (2) would mean that the Barreau has, since 1982, lacked authority to redefine the pool of persons eligible for a Supreme Court appointment, and that notwithstanding that they are “advocates of the Province” in the eyes of the relevant authority, judges of the federal courts are not “advocates of the Province” for the purposes of the Supreme Court Act. Not only was Justice Nadon’s appointment invalid, but future appointments of federal court judges who are members of the Barreau will be too.
Last, and perhaps most remarkably, possibility (3) would mean that the Barreau or other provincial authorities have lacked the authority to redefine the pool of the “advocates of the Province,” for the purposes of future Supreme Court appointments (though not for other purposes!) since the Supreme Court became constitutionally entrenched in 1949, so that by 1967, when Québec for the first time prevented judges from remaining members of the bar, it could not do so, or at least it had to allow judges to remain members of the bar for the sole purpose of remaining eligible for a Supreme Court appointment. This, in turn, raises the question of whether the majority’s opinion in l’Affaire Nadon might have been wrong the moment it was delivered and on its own premises, because under its reasoning, the Barreau acted unconstitutionally when it prevented Justice Nadon from remaining a member so as to maintain Supreme Court eligibility.
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As readers w ho know how I feel about l’Affaire Nadon and its nefarious consequences for the Canadian legal system as a whole and the federal courts in particular can guess, I’d be delighted to be told that the Barreau has found a brilliant workaround that nullifies at least some these consequences. For now, I do not think we can confidently conclude that it has done so, but it is certainly possible. In any case, it has exposed yet another glaring weakness in the majority’s reasons ― the uncertainty they will now generate. I find it more than a bit disturbing, however, that such a potentially significant change has been made without attracting much attention. Indeed, it may have passed entirely unnoticed but l’Affaire Mainville and the diligent work of Bernard Letarte and Alexander Pless, the federal government’s lawyers, and Sébastien Grammond, who is representing the provincial court judges. I have more questions about this matter, but I will come back to them later. For now, I mostly wanted to publicize it.