The Barreau Responds

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.

What Happened?

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.

L’Affaire Nadon, R.I.P.?

Reversing a Supreme Court decision is, normally, pretty difficult to do; all the more so when the decision is a constitutional one. One must re-litigate the case and hope to bring in new facts or legal arguments that will persuade the Court to change its mind. The only alternative, unless one is able and willing ― and no one ever is willing ― to invoke the Charter’s notwithstanding clause, is a constitutional amendment. (Incidentally, I recently discussed the prospects for reversing the Supreme Court’s recent disastrous labour rights decisions over at the National Magazine’s blog.) However, it seems that ― deliberately or not, I do not yet know ― the Barreau du Québec may have found a way to quietly reverse, in part, one of the Supreme Court’s most momentous decisions of recent years: its opinion in l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433.

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At issue in l’Affaire Nadon was the provision governing appointments to Québec’s seats on the Supreme Court, s. 6 of the Supreme Court Act, which the Court’s majority read as requiring an appointee to one these seats to be either a judge on the Québec Court of Appeal or its Superior Court, or “a current member of the Quebec bar with at least 10 years standing.” [4] The requirement of current bar membership excluded Justice Nadon and other judges of the federal courts, including judges appointed on the federal courts from the Québec bar, as well as judges of Québec’s provincial court, because they gave up their bar membership upon appointment to the bench.

They did because the Code of ethics of advocates, CQLR c B-1, in force until about one month ago provided, at par. 4.01.01a), that holding “judicial office on a permanent or full-time basis” is “incompatible with the practice of the profession of advocate.” However, 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, the Code of Professional Conduct of Lawyers, CQLR c B-1, r 3.1, changes this rule.

The new Code provides, in its s. 139, that “the office of judge under the Courts of Justice Act … and the office of municipal judge on a permanent or full-time basis” “are incompatible with the practice of the profession of lawyer.” And the Court of Justice Act refers, in its s. 1, to  “[t]he Court of Appeal; [t]he Superior Court; [t]he Court of Québec; [and] [t]he Municipal Courts.” The federal courts, as well as, say, international tribunals or, for that matter, the Supreme Court of Canada, are conspicuous by their absence. As the federal government and the Canadian Association of Provincial Court Judges point out, this means that the judges of these courts may now remain members of the Québec bar following their appointment.

Does it mean, then, that the judges of the federal courts, provided that they do not give up (or indeed resume) membership in the Barreau, may now be appointed to the Québec seats on the Supreme Court in their capacity as “current members of the Québec bar with at least 10 years standing,” as if l’Affaire Nadon had been decided the other way? I think that this is possible, but really, we have no idea. The answer turns on the exact meaning of the other big finding in l’Affaire Nadon: that the Constitution Act, 1982, entrenched the Supreme Court Act to some extent, and in particular that “[t]he eligibility requirements set out in s. 6 relate to the composition of the Court,” entrenched by s. 41(d) of the Constitution Act, 1982, “and are, therefore, constitutionally protected.” [5] The question is, what does the majority actually mean when it speaks of the “eligibility requirements set out in s. 6”? There are, I think, three possibilities here:

(1) Only the words, so to speak, of s. 6 are entrenched, while their meaning can evolve, so that the “advocates of the Province” to whom s. 6 refers are those recognized as such from time to time, and if the definition of that group changes, the pool of those admissible to a s. 6 appointment changes too;

(2) Both the words and the meaning of s. 6 are entrenched and cannot be changed by ordinary provincial law, including of course the Code of Professional Conduct, so that the definition of the “advocates of the province” has been frozen in 1982, with the enactment of s. 41(d) of the Constitution Act, 1982;

(3) Both the words and the meaning of s. 6 are entrenched and cannot be changed by ordinary provincial law, including of course the Code of Professional Conduct, so that the definition of the “advocates of the province” has been frozen since before 1982, and specifically since the moment when the Supreme Court became an entrenched part of the Constitution, which the majority opinion in l’Affaire Nadon suggests happened “as a result of its evolution into the final general court of appeal for Canada,” [95; emphasis in the original] which it became with the abolition of Privy Council Appeals in 1949.

I do not think that the majority opinion in l’Affaire Nadon says anything that would allow us to choose among these possibilities, and in my view it is impossible predict how the Court would rule if it were asked to do that. It is worth noting that the three possibilities have different consequences, all of them at least somewhat disturbing.

Possibility (1) would mean that the Barreau, or some other provincial authority if the way the legal profession is regulated in Québec ever changes, has authority over the actual meaning of a constitutional provision, s. 6 of the Supreme Court Act, and the Barreau has now validly exercised its authority to make it possible for judges of the federal courts and international tribunals to be appointed to the Supreme Court. Justice Nadon could not be appointed to the Supreme Court (assuming, of course, that the majority in l’Affaire Nadon was right, which I do not think), but similar appointments in the future would be valid.

Possibility (2) would mean that the Barreau has, since 1982, lacked authority to redefine the pool of persons eligible for a Supreme Court appointment, and that notwithstanding that they are “advocates of the Province” in the eyes of the relevant authority, judges of the federal courts are not “advocates of the Province” for the purposes of the Supreme Court Act. Not only was Justice Nadon’s appointment invalid, but future appointments of federal court judges who are members of the Barreau will be too.

Last, and perhaps most remarkably, possibility (3) would mean that the Barreau or other provincial authorities have lacked the authority to redefine the pool of the “advocates of the Province,” for the purposes of future Supreme Court appointments (though not for other purposes!) since the Supreme Court became constitutionally entrenched in 1949, so that by 1967, when Québec for the first time prevented judges from remaining members of the bar, it could not do so, or at least it had to allow judges to remain members of the bar for the sole purpose of remaining eligible for a Supreme Court appointment. This, in turn, raises the question of whether the majority’s opinion in l’Affaire Nadon might have been wrong the moment it was delivered and on its own premises, because under its reasoning, the Barreau acted unconstitutionally when it prevented Justice Nadon from remaining a member so as to maintain Supreme Court eligibility.

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As readers w ho know how I feel about l’Affaire Nadon and its nefarious consequences for the Canadian legal system as a whole and the federal courts in particular can guess, I’d be delighted to be told that the Barreau has found a brilliant workaround that nullifies at least some these consequences. For now, I do not think we can confidently conclude that it has done so, but it is certainly possible. In any case, it has exposed yet another glaring weakness in the majority’s reasons ― the uncertainty they will now generate. I find it more than a bit disturbing, however, that such a potentially significant change has been made without attracting much attention. Indeed, it may have passed entirely unnoticed but l’Affaire Mainville and the diligent work of Bernard Letarte and Alexander Pless, the federal government’s lawyers, and Sébastien Grammond, who is representing the provincial court judges. I have more questions about this matter, but I will come back to them later. For now, I mostly wanted to publicize it.