In his guest-post, for which I thank him, Maxime St-Hilaire offers three critiques of the judgments that have upheld the constitutionality of Justice Mainville’s appointment to the Québec Court of Appeal ― that 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, and that of the Supreme Court in Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 22. None of these critiques persuade me.
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The first is that the two Courts were wrong to consider that the words “from the bar of [Québec],” which, in section 98 of the Constitution Act, 1867, define the pool of eligible appointees to the province’s superior courts, can ― as a purely textual matter ― extend to former members of the bar. This conclusion rests on an absence of any textual indication that the link with the bar must be current in the text (such as can, according to the Supreme Court’s majority’s opinion in l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21,  1 S.C.R. 433, be inferred from the wording and interplay of ss. 5 and 6 of the Supreme Court Act). For prof. St-Hilaire, however, this conclusion is both “counter-intuitive” (my translation, here and throughout) and “arbitrary because it makes that which is specific and contingent into something general and essential.”
I simply do not see how this is the case. As Sébastien Grammond, who (brilliantly) represented the Canadian Association of Provincial Court Judges, pointed out at the Supreme Court hearing, one can be “from” somewhere even if one has not lived there for a long time. (And, I would add, even if one has moved any number of times since having lived there.) Similarly, one can meaningfully say that a federal court judge appointed from the Barreau du Québec is still “from” that bar ― as opposed to some other one ― after he or she has held judicial office for many years. At the very least the interpretation that imposes no temporal constraint is just as plausible as the one that does. In my view, it is actually more so.
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Prof. St-Hilaire’s second critique is historical. Actually, it consists of two distinct claims. The first is that, contrary to what the Québec Court of Appeal (and implicitly the Supreme Court) concluded, the concerns that motivated the enactment of s. 98 were the same that, later, motivated the enactment of what would eventually become s. 6 of the Supreme Court Act ― and, therefore, that the reasoning of the Supreme Court’s majority in l’Affaire Nadon is applicable to l’Affaire Mainville as well.
Actually, I think that it is easy to see that, while in a very general sense these two provisions were indeed motivated by the same concern for the integrity of Québec’s civil law, the precise problems they were intended to solve were quite different. If they hadn’t been, the Supreme Court would have been created in 1867, along with the rest of the federal institutions. The additional problem that prevented this from happening was that a majority of the Supreme Court’s judges were obviously going to be non-Québeckers, and s. 98 could not apply. The guarantee of representation in s. 6 of the Supreme Court Act was the solution to this specific problem ― that of creating a national court which, despite mostly consisting of judges from common law provinces, would nonetheless be acceptable to Québec. This specific context was key to the Supreme Court’s reading of s. 6 in l’Affaire Nadon. The Court of Appeal and the Supreme Court were right to conclude that it made that case’s holding inapposite in interpreting s. 98.
The second part of Prof. St-Hilaire’s historical critique has to do with the meaning of the expression “from the bar” in 1867. Prof. St-Hilaire points to the statutory provisions regulating the appointment of judges to Québec’s courts before confederation, which he says “obviously” must inform the interpretation of s. 98. In his view, these provisions, of which he traces the history in great detail, only allowed the appointment of then-practicing lawyers to the Superior Court, and of the judges of that particular court as well as of then-practicing lawyers to the Court of Queen’s Bench, which since became the Court of Appeal. That is right, so far as it goes, at least with respect to the Court of Queen’s Bench (though I am not quite sure about the Superior Court). But, as those who supported the constitutionality of Justice Mainville’s appointment have always argued, s. 98 was drafted differently from these provisions. The models to which prof. St-Hilaire points were available, and yet they were not followed. So it is far from “obvious” that these provisions must or even can serve as guides for the interpretation of s. 98. Rather, the choice ― quite clearly the deliberate choice ― of a different wording, one that made no mention of the currency of bar membership or courts where the appointee may have served prior to appointment under s. 98 suggest that these conditions cannot be read into that provision.
And then, one must ask a broader question about the value of an originalist interpretation such the one prof. St-Hilaire offers, even one that is about original public meaning and not about original intent (on which Québec’s submissions in l’Affaire Mainville focused). Prof St-Hilaire simply assumes that originalism is an appropriate approach to this case, but that too is far from obvious. In particular, the federal courts, and federal court judges appointed to that office because of their membership in the Québec bar, such as Justice Mainville, simply did not exist in 1867. So to conclude that the original meaning of s. 98 would not have included such judges is not to say much of anything about whether that provision should be understood as allowing their appointment in 2015.
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Prof. St-Hilaire describes his third and final objection as a “practical” one. He argues that allowing the appointment of a judge of the federal courts to Québec’s superior courts makes it possible “to do indirectly what one cannot do directly” ― that is to say, to subsequently appoint such a judge to one of Québec’s seats on the Supreme Court, contrary to the majority opinion in l’Affaire Nadon. This claim suffers from two major difficulties.
The first is that the majority in l’Affaire Nadon did not say that a former judge of the federal courts can never be appointed to the Supreme Court. On the contrary, the majority specifically pointed out that it did “not address” the question of whether such judge “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 this Court under s. 6”  ― much less that of a judge served on one of Québec’s courts for some substantial period of time. The majority’s express refusal to address the issue is hardly warrant for inferring that the Court decided it in a specific way.
Second, prof St-Hilaire’s endorsement of the “practical objection” is unjustifiably selective. As I pointed out here, the same objection could be raised against the appointment, under s. 98, of persons who resigned their membership in the Québec bar in order to become judges of the provincial court. They too cannot be appointed directly to the Supreme Court pursuant to s. 6 of the Supreme Court Act, and yet become eligible for such an appointment if they are elevated to the Superior Court or Court of Appeal. Yet, like the Québec government, prof. St-Hilaire says that such appointments should be possible. Québec argued that that was because judges of the provincial court were members of a “legal institution of Québec,” while judges of the federal courts were not. It was a weak argument, given the federal courts’ involvement with Québec and its legal system, but at least it sounded in principle. Prof. St-Hilaire, for his part, simply says it is a “much better compromise between law and facts” (meaning the longstanding practice of such appointments, in Québec and elsewhere) than the interpretation retained by both the Court of Appeal and the Supreme Court. Yet, again as the federal government and others have always argued, this concession to constitutional practice is quite untethered from the text of s. 98, which does not distinguish between former lawyers appointed to provincial courts and former lawyers appointed to federal courts.
Undeterred, prof. St-Hilaire doubles down and suggests that the same approach “could and should indeed have been applied (mutatis mutandis, of course) to the interpretation of” section 97 of the Constitution Act, 1867.” Yet apart from, once again, the lack of any foundation in the text of s. 97, this interpretation would have led to the curious result that, while eligible under s. 5 of the Supreme Court Act to represent the province from which they were originally appointed to the federal courts at the Supreme Court (something the Supreme Court unanimously confirmed in l’Affare Nadon), federal court judges could not be appointed to that province’s own courts under s. 97. Then again, under prof. St-Hilaire’s and Québec’s interpretation, the judges of the Supreme Court itself, no matter what their previous affiliation, would not be eligible to be appointed to Québec’s courts under s. 98. Québec’s lawyer did his best to laugh this question away when it was put to him at the hearing at the Supreme Court and, when pressed, utterly failed to answer. I do not think that, had he been in that lawyer’s place, prof. St-Hilaire would have succeeded either.
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Prof St-Hilaire undertook to convince us that, despite the absence of any indication to that effect in the text of that provision, s. 98 is best interpreted as preventing some, but not all, former lawyers from being appointed to Québec’s Superior Court and Court of Appeal. I do not think that his arguments are persuasive. At most, it seems to me that an interpretation of s. 98 that would bar the appointment of all (not just some) former lawyers was textually plausible, though no more, and probably less, compelling than the alternative, allowing the appointment of such lawyers.
And even if textually plausible, such a restrictive interpretation was practically undesirable. Everyone agreed, I believe, that Justice Mainville would make a fine judge of the Québec Court of Appeal. Had he been appointed directly to that court, the appointment would likely have been met with universal approval. Has his service at the Federal Court and Federal Court of Appeal made him a worse jurist? Of course not. And so it seems to me that an interpretation that would prevent the appointment of eminently qualified judges so as to assuage the fears that long-dead men might or might not have felt had some time traveller told them about the federal courts is not to be lightly favoured. The Court of Appeal and the Supreme Court were right not to fall into that trap.
As for whether the Supreme Court really has “repudiated” its opinion in l’Affaire Nadon, as prof. St-Hilaire suggests, I do not think we can quite say that. Again, there are real differences between the provisions at issue there and in l’Affaire Mainville, and just as the resolution of the former does not dictate that of the latter, so we cannot infer from the latter anything about the former. Still, we may indeed conclude that the Court views the statutory interpretation holding of l’Affaire Nadon as confined to its own specific facts, and not in need of being extended. That is good news indeed.