Bilingualism, the SCA Reference, and Buffet-Line Constitutional Interpretation

Professors Grammond and Glover, as well as my gracious host Léonid Sirota, have all addressed the constitutionality of requiring judges to be bilingual in order to be qualified for appointment to the Supreme Court. In my view, all are excellent efforts to come to grip with difficult constitutional problems, and taken alone, I find each of them plausible and compelling.  Taken together, they reveal a larger maxim: that we cannot agree upon an answer to something unless we agree what the question is. That is: what are we looking for when we are doing constitutional interpretation? Are we looking for the framers’ specific intentions, whether or not those intentions are successfully manifested in constitutional language? Should we seek to achieve the framers general purposes, derived from any range of sources? Are we looking for the meaning of the words that they set out, as understood by a reasonable person? Are we seeking an interpretation that best fits with the structure of our institutions? Or what we need as a society (distilled through the views and opinions of nine eminent jurists) at the present moment?

Each of these options is reflected in the approaches offered so far, and unsurprisingly, they lead to very different outcomes, and different readings of the SCA Reference. I provide my own tentative take on each of the arguments presented so far, a task I undertake with some trepidation, as I’m convinced I have not thought as long, or read as widely, about this specific issue as these authors have. So I invite them (and others) to issue corrections or rebuttals in the comments.

I will begin with Professor Grammond’s piece. As I read it, his approach identifies two limits on the power of Parliament to unilaterally alter the composition of the Court, and each are grounded primarily in different methods of constitutional interpretation. First, he suggests that Parliament cannot unilaterally alter “Quebec’s representation on the Court”, a restriction he finds grounded in a principle that is (as Sirota noted) thoroughly originalist: Quebec’s representation is considered amongst the “specific issues in respect of which there is cogent evidence that the framers of the 1982 Constitution intended to freeze the status quo”.

Prof. Grammond’s second limit is not originalist, as such, but what we might call “structuralist”: Parliament cannot unilaterally alter the court’s composition in a manner that undermines “the Court’s role as a final court of appeal and the Court’s independence”, or that otherwise effects truly fundamental changes to the institutional functioning of the Court. As I understand it, the problem with such changes is not necessarily that they defy any clear proscription in the language of the constitution, but that they undermine the core structure of the institution those provisions create.

As making bilingualism a condition of eligibility would offend neither of these limits, Prof. Grammond concludes that no constitutional amendment is required for that proposed change. He notes that this interpretation seems to run afoul of the Supreme Court’s ostensibly specific direction that any substantive changes to the eligibility requirements found in ss. 4-6 of the SCA constitute an amendment. In response, Prof. Grammond cautions us not to be too persnickety about each and every word or phrase in the SCA Reference; the judgment should not be read like a statute, he suggests, but rather in a more flexible, common law fashion.

I do not necessarily take issue with that, as a general proposition. My difficulty with Prof. Grammond’s argument is less that it requires some artful dodging around this or that particular clause in the judgment, but that it does not seem that the limits he proposes actually justify the holding in the SCA Reference. I think Prof. Grammond comes close to acknowledging this, in noting that the logic underlying that judgment did not actually explain “why someone in the position of Justice Nadon could not be said to represent Quebec adequately”.  I will return to this point in a moment.

Mr. Sirota takes a different interpretive tack, which I will describe as more “textualist” in nature. He criticizes Prof. Grammond’s use of the framers’ intentions as the appropriate constitutional lodestar, and failing to identify why some eligibility requirements alter the Court’s “composition” while others do not. It is not obvious to me from his short piece what Sirota himself thinks the word “composition” means, exactly, however based on the holding of the SCA Reference, he reasonably concludes that the Court has already determined what the word “composition” means, and it means those eligibility requirements set out in ss. 4-6 of the SCA.  As I understand the position, if composition includes eligibility requirements, as the Court plainly stated, then adding an eligibility requirement would require an amendment, just as much as removing one.

In a tightly argued response, Prof. Glover implies that Sirota, at least, is not asking the right question: the right question is not whether the precise form of those sections would change, but whether the proposed change is one of substance.  To Prof. Glover, the best reading of the logic of the SCA Reference is that it shields from unilateral change “only those aspects of composition and eligibility that are necessary to ensure the Court’s competence, legitimacy, integrity, and proper role and functioning”.

It seems to me that this approach is not originalist, or textualist, but some form of purposivm: what were the provisions designed to achieve, and what types of restrictions are necessary to achieve those ends? As their purpose is to ensure the Court’s competence, legitimacy, integrity, role and functioning, it is against these ends that we measure whether a unilateral amendment would be permitted. Prof. Glover finds that it would not, as a requirement of bilingualism would be a change linked to the “judicial competency and institutional integrity of the Court”.

As I see it, Prof. Glover’s dispute with Sirota is relatively fundamental: should the Court be looking to give the term “composition” a fixed and steady meaning consistent with past precedent, or looking at what objectives entrenching the Court’s “composition” were intended to achieve? By contrast, Prof Glover’s dispute with Prof. Grammond is less stark.  While for Prof. Grammond, the core purposes of entrenching the composition of the court are to protect the fundamental nature of the institution, including Quebec’s representation and the Court’s role as an independent, final court of appeal, Prof. Glover sees the purposes as slightly more demanding.

Truth be told, Prof. Glover’s analysis reads closest to the way I would expect the Court to approach the issue. I would however argue that Prof. Glover’s position is vulnerable to the same criticism as Prof. Grammond’s: it does not, in my view, adequately explain the holding of SCA Reference itself. Again, Prof. Glover’s constitutional analysis seems to hinge on what she views as the purpose of the provisions, not the specific way that those purposes have been put into practice (for instance, the precise criteria in ss.4-6 of the SCA). It is for this reason that she can argue that less substantive changes, such as to allow the appointment of advocates of at least 9 years standing at the bar of a province (instead of 10), would not require an amendment, although it would clearly require a change to ss. 4-6 of the SCA.

However, I think that in order for the SCA Reference to be correctly decided, the specific criteria in the SCA are critical, not merely the purposes underlying them. Indeed, the Court’s logic suggests that it did not matter whether the means chosen (i.e. the specific criteria) by Parliament would best achieve its purpose, or whether other criteria would meet them as well or better.  What matters was what criteria Parliament chose:

It might be argued that excluding former advocates of at least 10 years standing at the Quebec bar does not perfectly advance this twofold purpose because it might exclude from appointment candidates who have civil law expertise and who would in fact bring Quebec’s legal traditions and social values to the Court. In other words, it could be argued that our reading of s. 6 is under-inclusive when measured against the provision’s objectives.

This argument is not convincing. Parliament could have adopted different criteria to achieve the twofold objectives of s. 6 — for instance by requiring a qualitative assessment of a candidate’s expertise in Quebec’s civil law and legal traditions — but instead it chose to advance the provision’s objectives by specifying objective criteria for appointment to one of the Quebec seats on the Court. In the final analysis, lawmakers must draw lines. The criteria chosen by Parliament might not achieve perfection, but they do serve to advance the provision’s purpose: see Michael Plaxton and Carissima Mathen, “Purposive Interpretation, Quebec, and the Supreme Court Act” (2013), 22 Const. Forum 15, at pp. 20-22. [paras 57-58, emphasis added]

While this passage is found in the Court’s interpretation of ss. 5 and 6, the Court went on to find that the precise outcome of that interpretation was constitutionally entrenched, such that a rather minor change to the language of those provisions – so minor as to accord with what many plausibly thought those provisions meant in the first place – would thereby constitute a constitutional amendment.

Thus, if our guideposts are not the precise language and exact criteria in ss. 4-6 of the SCA, but rather the more broadly understood purposes behind them (such as “the requirement that Quebec be meaningfully represented on the Court”), then it is difficult to see how a change permitting the appointment of, say, a Quebec-born and raised francophone, who had 20 years’ experience at the Quebec bar and considerable experience in civil law, would substantively undermine meaningful representation for Quebec.  What it did, according to the Supreme Court, was something different: it offended the “specific eligibility requirements for appointment from Quebec” (para 105), which, I think, the Court equated with those specifically set out in the SCA.

Notwithstanding these reservations, I think there is much support in the SCA Reference for all of the positions put forward, particularly once we take Prof. Grammond’s caution and realize that the Court is not likely to consider itself forever hidebound by the precise holding in that decision. Indeed, if we take that caution and simply rely on accepted methods of constitutional interpretation, the odds are even more clearly divided.  All three of the arguments begin with entirely sound premises (one of many widely-accepted methods of interpretation), and follow them logically to perfectly defensible conclusions. That is to say, each argument is credible and compelling in its own right, notwithstanding that all three authors are looking for very different things and arrive at fundamentally different conclusions.

Perhaps this degree of quantum uncertainty is unavoidable in hard case like this. But I cannot help but think that if this is a problem, it is exacerbated by the Court’s jurisprudence, which sometimes resembles a buffet-line approach to constitutional interpretation, authorizing interpreters to pick or choose what method of interpretation they will follow and in what measure, and without any guidelines as to how to discard, reconcile, combine, or choose between the methods on offer. As judges are often fully liberated to determine what the question is, it may be hard to prevent them from arriving at their preferred answer.