I wrote last week that the Barreau may ― or may not ― have effectively 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 by changing its rules of professional ethics so as to allow federal judges to remain members which, in turn, might have made it possible to appoint them to the Supreme Court. Earlier this week, I noted that, in addition to the substance of this change, I had serious questions about the procedure that had been followed prior to its coming into force, and indeed about whether the Barreau was even aware of its significance. These questions, which I had forwarded to the Barreau last Thursday, had gone unanswered.
Until now. I am happy to report that I have heard back from the Barreau. The substantive part of its answer follows. (I had written in French, and the answer is in the language of Portalis as well.) I offer some comments on it below.
La refonte du Code de déontologie des avocats, comme vous le savez sans doute, a été amorcée en 2010. Ce travail a été confié à un comité consultatif dédié et constitué d’avocats qui ont apporté bénévolement leur expertise et leur collaboration à la rédaction. Ainsi qu’il en va pour tout dossier de cette nature, la proposition finale a été ratifiée par le Conseil général du Barreau.
Dans la rédaction des articles du Code visés par cette refonte, il importe de souligner que l’aspect politique n’a jamais été pris en considération. Seuls les principes éthiques et déontologiques ont balisé ce travail considérable.
En ce qui a trait à la formulation de l’article 139, alinéa 1, du Code de déontologie, nous avons effectué certaines vérifications sur les amendements proposés au cours des 4 années de refonte du Code qui ont mené à cette formulation finale.
Étant donné que nous souhaitons éviter l’interprétation que vous évoquez, le Barreau du Québec a demandé à l’Office des professions un amendement à cet article afin que celui-ci reflète mieux nos intentions. L’une des hypothèses envisagées pour cet amendement serait de laisser tomber la référence à la Loi sur les tribunaux judiciaires (chapitre T-16) et d’inclure tous les juges fédéraux.
In short, the Barreau seems to be hinting ― though without actually saying this, much less offering any evidence ― that the change might have been decided on well before l’Affaire Nadon broke out, or at least was concluded. At any rate, “the political aspect,” it asserts, “was never taken into consideration.” But it’s not just “the political aspect.” The statement, in the last paragraph of the Barreau’s answer, that it “wish[es] to avoid the interpretation that [I] put forward,” ― it’s not I, by the way, but rather the federal government’s lawyers who wrote its factum in l’Affaire Mainville, as well as Sébastien Grammond ― pretty clearly suggests that those who drafted and enacted the new rule simply hadn’t thought about its effect on the judges of federal courts or international tribunals.
The Barreau now wants to change the rule again, to “include all federal judges” (note that it says nothing about judges who sit on international tribunals). The trouble is that, even if it is true that the change was not “political” in the first place ― note, though, that the Barreau doesn’t directly answer my questions about who proposed it and how it was justified, beyond the vague assertion that the revision of the Code of Ethics was guided by “ethical and deontological principles alone” ― any new change cannot be so “apolitical.” The Barreau may claim that it would only be “to better reflect [its] intentions” ― but since it hadn’t thought about what it was doing in changing the rule, the claim that it had any “intentions” worth speaking of rings hollow. Its purported “intentions” are reverse-engineered to advance a specific position, which is that wants the holding of l’Affaire Nadon to stand ― and that position is “political.”
As I understand it, changing the rules again would require the approval of the Barreau’s General Council. If you are a Québec lawyer and are unhappy with the outcome of l’Affaire Nadon, as you ought to be, now is your chance to tell your representative on the Council about it. Make it an issue. Force a debate. The veil of ignorance has been lifted, for better or worse. It is impossible to pretend that there is nothing to see here.
As for myself, I am of two minds about this whole business and my role in it. On the one hand, I’d be lying if I said I didn’t care about the issue that I have tried to bring to the public attention being taken seriously. On the other, because I continue to believe that the Supreme Court’s opinion in l’Affaire Nadon was pernicious, I’d be sad to see the workaround that might have nullified it closed, if indeed it is closed. (I hope that it is not!) Then again, if the workaround had remained in place but without anyone alerting the public to it, any eventual appointment of a judge who had used would have raised a stink, perhaps a bigger stink than l’Affaire Nadon itself. It is best, I am inclined to think, that we be clear about things. As the old legal adage has it, it is often more important for things to be settled than for things to be settled right.