Double Aspect

Last week, I explained why the Barreau, Québec’s law society, may ― or may not ― have in effect reversed the outcome of l’Affaire Nadon, which prevented the appointment to one of Québec’s seats on the Supreme Court of judges occupying one of Québec’s seats on the federal courts. Unlike its predecessor provision, section 139 of the Barreau’s new Code of Professional Conduct of Lawyers, which came into force about one month ago, does not bar all judges from remaining members, but only those who sit on of the courts named in Québec’s Courts of Justice Act and full-time municipal judges. New judges of the federal courts appointed from Québec need not resign their membership in the Barreau, and could possibly ― depending just what the Supreme Court meant in l’Affaire Nadon ― be appointed to the Supreme Court, pursuant to s. 6 of the Supreme Court Act, as “advocates of tat province.” Beyond the question of whether the change in the Barreau’s Code of Professional Conduct can have that effect, which I explored in that post, I also have serious questions about the way in which this potentially momentous change ― reversing a constitutional decision of the Supreme Court, no less ― was made.

First of all, I seriously wonder whether this change was deliberate, and whether the drafters of the new Code of Professional Conduct realized what they were doing when they decided to re-word the old rule on the incompatibility of judicial office with the practice of law (s. 4.01.01 of the now-repealed Code of ethics of advocates). The reason I’m even asking this seemingly nutty question is that “Comparative Table” setting out the provisions of the new Code in parallel with their predecessors, prepared by the Barreau, does not highlight s. 139 as being among the “principal changes” (see p. 47 of the table). Does the Barreau actually think the new provision is the same as the old? 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, that is just not the case.

Now if, against appearances but in accordance with the presumption that a group lawyers should understand the legal effects of the provisions it is responsible for drafting, this change was indeed deliberate, the following additional questions come to mind. Who suggested this change? Although Québec’s chattering classes seemed delighted by the Supreme Court’s opinion in l’Affaire Nadon, more than a few people were not so happy, and it would be interesting to know if one or several of such dissenters were behind this change. A related question is, what explanations, if any, were given for this change? How was it sold to the Barreau’s General Council, which is responsible for the adoption of the Code of Ethics? For that matter, was it even discussed there? All those questions, ultimately, tend to just one: was the change a deliberate response, by the Barreau itself or perhaps by a quietly enterprising draftsman, to the Supreme Court’s opinion in l’Affaire Nadon? Or is its possible effect on that opinion actually an accident?

I wanted to ask these questions publicly because, as I said in my last post, I find it more than a bit disturbing, that such a potentially significant change has been made without attracting much attention ― and perhaps even accidentally. Of course, I would have preferred to be able to publish the Barreau’s answers. As soon as I published my post last Thursday, I wrote to the Barreau’s media spokesperson, asking these questions, which is why I waited before posting this. However, I still have not received an answer, not even a “no comment.” I will not speculate about why that may be. If someone from the Barreau wants to get in touch, I would be happy to let my readers know what it has to say.