The Five-Judge Myth

How many Supreme Court judges does it take to decide a civil law appeal?

By Peter McCormick

A defining aspect of the Canadian legal system is its bijuralism: Quebec’s civil law system is distinctly different from the English-derived common law of the other provinces. The federal-provincial division of powers which assigns to the provincial legislatures jurisdiction over “property and civil rights within the province” is its formal entrenchment. There are also structural accommodations, one of the most important of which is the composition of the Supreme Court.  Alone among the provinces, Quebec is guaranteed a minimum share of the Court’s membership. One third of the judges (two of six in 1867, three of nine since 1949) must be appointed from the bar or the judiciary of Quebec, which is to say that they must be experienced in the civil law.

On the face of it, this is not enough; it does not preclude the possibility of a common law majority that persistently out-votes its civil law minority and steadily erodes this bijuralism. Its impact has therefore been reinforced by a long-established practice. Peter Hogg describes it as follows: “since 1949 … it has been possible to assemble a quorum of five judges with a majority of civilians” with the result that “(t)his is now the usual composition of the bench when the Court hears a civil law appeal from Quebec.” (Hogg, Constitutional Law of Canada (various editions), Chapter 8.5(a).) Assuming a unified trio of civilian judges – a single defection can be decisive – it is both an acknowledgement and an effective protection of Quebec’s civil law uniqueness.  The recent controversy over the Nadon appointment served once again to highlight the importance of demonstrable and recent civil law experience for those Quebec judges.  As a student, years ago, I was impressed by the elegance of this “five-judge” solution; as a professor, I tried to ensure that my students appreciated it as well.

However, there is another story that we have been telling about the Supreme Court, and that is the story of a steady move toward larger panels.  The Supreme Court Act permits panels of various sizes, but five judge panels continued to dominate even after the enlargement of the Court to nine members in 1949.  In this context, a slight tweak of the rules for striking the panels for civilian appeals was procedurally simple, almost invisible, and reliably consequential.  Ever since the great watershed of the Laskin Court, however, panels have been getting steadily larger.  On the Lamer Court, the default was already seven judges, with the more important issues (such as the growing number of constitutional cases) assigned to larger panels and only the more routine cases (such as appeals by right) going to smaller ones.  Under McLachlin, this trend has continued, such that nine-judge panels are now the most common and five-judge panels have become unusual, used for only one reserved judgement in every thirty.

It is not easy to reconcile this long-term trend toward large panels with a five-judge rule for civil appeals.  This post reports on my own investigation of these two on-the-face-of-it contradictory generalizations, focusing initially on the McLachlin Court.  On my findings, it is the “larger panels” generalization that very much prevails.  The “five-judge” practice of Quebec exceptionalism has all but disappeared.

The first question is how to objectively identify the set of civil law appeals, and the Supreme Court itself has provided the most obvious solution: the judge-written headnotes that lead off every decision.  If those included specific mention of either or both of the Civil Code of Quebec and the Code of Civil Procedure, then I treated it as a civilian appeal.  (A further forty cases listed these statutes among their citations without any headnote notation, but I did not treat citation alone as justifying their inclusion.)  Limiting the inquiry to reserved judgments only, this gave me fifty-five civil law cases, for an average of about three per year.

How many of these were decided by five judge panels?  Only five – one in every eleven, which is to say one every three or four years.  Thirty-two went to seven judge panels, and nineteen to full-court nine judge panels. The average panel size was 7.5, only slightly below the McLachlin Court average of 7.9 for all reserved judgments.  The fact that it is lower at all may suggest a residual tug of the older “five-judge” rule, but if so it is a small tug indeed.

Even more surprising, only a single one of those five judge panels included all three Quebec judges, guaranteeing that a united set of Quebec civilians would prevail over their common law colleagues.  More remarkably yet, this was balanced by a single example at the opposite extreme — a panel with no Quebec judges at all.  A panel small enough that the Quebec judges can make up a majority is of course also small enough that the Quebec judges can be left out altogether.  The five-judge rule would have led us to expect that these five panels would have included a total of fifteen Quebec judges and ten of their common law colleagues; in practice, they included only eight, well below the common law total of seventeen.  Further to punctuate the point, four of the five examples were from the first four years of the McLachlin Court, and the single more recent example was the “no Quebec judges” panel.

Comparing eighteen years of McLachlin with eighteen months of Wagner calls for caution, but there has been no sign of a reversal of the above patterns.  To date, the Wagner Court has dealt with seven civilian appeals, some of which were consequential; five were decided by panels of nine and two by panels of seven.  There was no sign of the five-judge practice, no indication that these appeals are treated differently in this respect from the broad run of reserved decisions.  The five-judge rule is dead; it seems to have breathed its last in 2004.

But all is not lost.  Quebec judges may have been under-represented on the vanishing smaller panels and risk being outvoted on the larger ones, but they do deliver most of the judgments – fifty-one of the McLachlin Court’s fifty-five and five of the Wagner Court’s seven for an overall total of fifty-six out of sixty-two, about ninety per cent. There has long been a significant “homer” tendency on the Supreme Court in assigning the judgment – an appeal coming from your own province roughly doubles your chances – but the tendency is even stronger for Quebec civil appeals.  Compared with the five-judge rule, this may well be a less robust and less compelling institutional recognition of Quebec exceptionalism, but it is where the empirical evidence takes us.  We should remember, however, that when the Supreme Court was first established it was the spectre of common law judges deciding civil code issues that worried Quebec. “It only happens one time in every ten” may not be a completely reassuring response now that civilian judges are now outnumbered on every panel.

(La) Doctrine

What do legal doctrine and la doctrine have to do with each other?

I was at the colloquium that McGill’s Crépeau Centre held on Friday for its 40th anniversary on the topic of “The Responsibility of Doctrine.” It was quite interesting, if a little uncanny for someone who, despite my McGill professors’ best efforts, never found the civil law quite congenial. Without going into anything like a detailed comment on the proceedings, I would like to offer the following meditation on a subject that the panellists did not actually discuss but which I think their presentations illuminated nicely: the complicated relationship between the civilian (and mostly French) and the common law (and thus mostly English) senses of the word “doctrine.”

The civilians’ doctrine is (roughly, because the actual definition is debated) the set of writings, learned but not necessarily academic, that synthesize, explain, analyze, and possibly criticize the state of the law. The common lawyers’ doctrine, according my own tentative definition, is the set of rules and principles that can be derived or inferred from judicial decisions. The two words do not mean the same thing, then. They are, linguists or translators would say, “false friends.” But are they really friends at all? Or, conversely, are they actually false?

Some civilians deny that there even is such a thing as la doctrine in the common law world. And, for their part, they have no word that would be equivalent to the common lawyers’ doctrine, and perhaps they have little use for such a word, given the opacity of the traditional civilian judicial decisions, and the subordinate status of la jurisprudence as a source of law. If so, then la doctrine and doctrine can hardly be friends at all; indeed, it is almost as if “never the twain shall meet.”

But this seems too quick. As Derek McKee pointed out, it’s not so clear that there is no doctrine in the common law world. (Peter Hogg’s Constitutional Law of Canada seems an obvious example, for instance.) Sébastien Grammond, for his part, said that even judicial opinions, or at least some them, could be regarded as part of la doctrine, insofar as they serve the same function of stating and explaining the law. This cannot happen in the single-page decisions of the French courts, but does happen here. (And perhaps, conversely, the more common-law-like decisions of the courts that apply Québec’s civil law can also produce doctrine in the common law sense.)

That said, the differences between the common and the civil law systems are relevant to the relationship between doctrine and doctrine. The respective roles of the different branches of the legal profession, especially the judicial and the academic ― and their publishing habits or obligations ― mean that the participants in and the form of doctrine and doctrine differ. Judges are in theory ― and subject to prof. Grammond’s above-mentioned comments ― excluded from la doctrine. They are, by contrast, the most significant contributors to doctrine. La doctrine develops, first and foremost, in books and articles. (There was much interesting discussion, especially by Élise Charpentier, about the fluctuating respective fortunes of these two media.) Doctrine grows in the pages of law reports as well as law reviews and law books ― although Justice David Stratas has recently argued that it is in danger of being drowned out by the siren songs of result-oriented reasoning, in public law fields anyway.

However, these differences are less important than what doctrine and doctrine have in common. The important thing about both is that they are the products of, and indeed very nearly synonymous with, collective thinking about the law. La doctrine, as I already mentioned, is a set of writings, a discourse involving multiple authors. (This point was, I think, most clearly made by Aurore Benadiba.) And doctrine is, of necessity, derived from a multitude of judicial decisions rendered over time. A person can be un auteur de doctrine, and a judicial decision can illustrate a legal doctrine, but doctrine and doctrine are both, fundamentally, ongoing conversations.

These conversations can be noisy and perhaps chaotic, since they involve multiple speakers addressing multiple subjects ― judges, scholars, and lawyers trying to figure out not only what the law is but also, at least some of the time, what it should be. (The critical component of la doctrine is often mentioned in its definitions. But those of you who have listened to Justice Stratas’ lecture that I link to above, or read my post about it, will also recall that he said that the judges who are “doctrinal” are not only interested in what the rules are, but also, perhaps, in tweaking in modifying them.) They yield no permanent truths and no irrevocable agreements, and as new voices enter both their vocabulary and their contents shifts, usually imperceptibly, sometimes abruptly.

But meandering and sometimes cacophonous though these conversations are, they are the visible, and therefore the imperfect, manifestation of the jurists’ quest to make the law coherent and conducive to the public good through argument and shared deliberation. Common lawyers, most famously Chief Justice Coke, called this quest the “artificial reason” of the law. While I am not aware of an exact civilian equivalent, I believe that Portalis, for example, with his insistence that “[l]aws are not pure acts of power; they are acts of wisdom, justice and reason,” and that “[t]he lawmaker … must not lose sight of the fact that laws are made for men, and not men for laws” would have shared its spirit.

At least some of Friday’s presenters insisted that la doctrine is our joint responsibility as juristes (and some, notably prof. Grammond, have argued that the responsibility runs beyond the legal profession itself). So did Justice Stratas in his lecture, as called upon judges, lawyers, and scholars alike to devote ourselves to doctrine, and on all of those who write about the law to take doctrine seriously. I am trying my best to answer the call. And so I will conclude with an observation that was entirely ignored in Friday’s presentations ― except prof. Grammond’s.

The web 2.0, and especially the blogs, are already a part of the doctrinal conversations, and will be an ever more important one in the years to come. Justice Stratas not only mentioned a couple of bloggers (specifically, Paul Daly and yours truly, for which I am very grateful to him) as examples of legal writers who take doctrine seriously, but also kindly commented on my post about his lecture. This sort of exchange was simply impossible until a few years ago, and I suspect that, for many, it still seems inconceivable. But I am hopeful, and pretty confident, that in time it will no longer seem so. What I’m trying to say is not, of course, that anyone should read or comment on what I write (though it’s nice when that happens). It’s that if doctrine and doctrine are to flourish in the 21st century, they will need to remain open to new forms, and that it will not do to ignore these new forms simply because they are unfamiliar.