This Time It’s Different

Today, the Supreme Court heard Québec’s appeal in l’Affaire Mainville ― and, after deliberating for less than an hour, dismissed it from the bench. Speaking for the Court, Justice Wagner endorsed the reasons of the Québec Court of Appeal in Renvoi sur l’article 98 de la Loi constitutionnelle de 1867 (Dans l’affaire du), 2014 QCCA 2365 (an English version of these reasons is available here). Justice Wagner added that the arguments made by Québec, as well as Rocco Galati and the Constitutional Rights Centre, to the effect that the case was indistinguishable from l’Affaire Nadon, so that judges of the federal courts must be barred not only from Québec’s seats on the Supreme Court, but also from Québec’s Court of Appeal and Superior Court “cannot stand” (my translation). The governing constitutional provisions are simply too different.

This is what I argued from the beginning. The Court of Appeal’s decision was correct, and Québec’s arguments to the contrary, feeble. Paul Wells’ tweet that the challenge to Justice Mainville’s appointment was “laughed out of court” is not much of an exaggeration. It is not every day that a constitutional case is decided from the bench. (Indeed, I wonder when, if ever, that had last happened.) Given this dénouement, and also my copious amount of blogging on this matter, there is not much more left to say.

I will conclude by referring to some comments made by Sébastien Grammond, who argued on behalf of the Canadian Association of Provincial Court Judges and was his usual stellar self. He said that Québec’s attempts to “protect” its judiciary from lawyers who had passed through the federal courts, as though they were “the dark side of the force,” reflected a “crispation identitaire,” which would lead people to compare who is and who is not enough of a Québécois ― something that would, in a schoolyard, considered to be bullying. Prof. Grammond is quite right, and the fact that the bullies’ ranks have included Québec’s best writer on legal affairs is proof of just how bad things were. I hope that the Supreme Court’s unequivocal dismissal of the challenge to Justice Mainville’s appointment will put an end to this collective cramp.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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