A Judge Unbound

The Prime Minister has at last named his choice to fill the vacancy left on the Supreme Court by the retirement of Justice Thomas Cromwell. It is Justice Malcolm Rowe, now at the Newfoundland and Labrador Court of Appeal. For all the concern ― of the Prime Minister’s and his government’s own making ― about whether he would be prepared to breach the convention of regional representation on the Supreme Court in the service of an identitarian quest to appoint, say, an aboriginal woman, Justice Rowe’s appointment will, on the surface, be an unremarkable one. The convention stands undisturbed ― and perhaps stronger thanks to having been affirmed by a unanimous resolution of the House of Commons ― and the Court gets yet another successful and well-connected white male member. (Justice Rowe will be the first Newfoundlander to sit on the Supreme Court, however, so his appointment is groundbreaking in that way ― a step forward for old-fashioned regional diversity, if not for the contemporary demographic sort. Justice Rowe, who was born in 1953, is also relatively old ― among his new colleagues, only Justice Moldaver was older when he was appointed to the Supreme Court; many were substantially younger.)

Justice Rowe’s appointment is noteworthy, however, because of his views on his new job ― disclosed by the government as part of a questionnaire that he, as well as others who applied, had to complete in order to be considered. There are other interesting nuggets there, which others have highlighted. There’s Justice Rowe’s assertion that he was in fact the author of an opinion ostensibly signed by his court (see “Synopsis 2” in Part 7 of the Questionnaire); there’s the fact, highlighted by Dave Snow on Twitter, that he took a French immersion course just before applying, suggesting that his French might be rather rusty, at best; there’s a rather turgid writing style, though it is perhaps unfair to judge a man’s prose by the way in which he filled out a form. But let me focus on Justice Rowe’s ideas about judging and, especially, the Supreme Court. These ideas are, to me, concerning if not disqualifying.

Justice Rowe states that “[t]he Supreme Court is not, primarily, a court of correction,” which is certainly true, so far as it goes. He is right to say that “[t]hrough the leave to appeal process, the Court chooses areas of the law in which it wishes to make a definitive statement.” But his conclusion ― that “the Supreme Court judges ordinarily make law, rather than simply applying it” ― is still remarkable. It is worth recalling, though admittedly Justice Rowe is not the only person who does not, that as John Austin pointed out in The Province of Jurisprudence Determined, the phrase “judge made law” was itself made up, by Jeremy Bentham, and was intended as “disrespectful and therefore,” Austin thought, “injudicious.” More importantly, the idea that judges ― those of the Supreme Court anyway ― usually “make make law rather than simply applying it” suggests that Justice Rowe will not feel bound by the constraints that precedent and statutory and constitutional text are thought to impose on judges, including those of the highest courts. The view is not exactly original ― as I noted elsewhere, Chief Justice McLachlin has expressed her own sympathy for it ― but it is disconcerting nonetheless. For the Rule of Law to exist, courts, like other government institutions, ought to be bound by the law. If judges feel that they can simply make the law up, indeed that this is what they are expected to do, the Rule of Law is not long for this world.

Now, in the very next paragraph, Justice Rowe says that ― unlike in common law adjudication ― “the role of judges concerning the interpretation of statutes … is to give effect to the will of the legislature.” But of course a substantial part of the Supreme Court’s work does in fact involve interpretation of statutes ― whether of the Criminal Code, the Income Tax Act, or of other legislation. At best, then, Justice Rowe’s previous statement about judges as law-makers is thoughtless, or reflects a certain confusion about what it is that the Supreme Court does. (It may well be that this is what’s going on here: as prof. Snow has observed, Justice Rowe is simply wrong to claim that “[r]elatively few recent cases deal with the division of powers.”) At worst, he is deliberately saying one thing and its opposite, the better to justify any approach he might be pleased to take in a given case. As Benjamin Oliphant has pointed out, this is indeed something of a tendency in Justice Rowe’s answers ― and also in the jurisprudence of the Court which he is about to join.

Justice Rowe’s view of the Supreme Court’s place in the Canadian constitutional framework is, ultimately, the smugly self-assured one that is prevalent in the Canadian legal community. Judges make law ― especially, it would seem, constitutional law, where Justice Rowe sees room for reviewing the Privy Council’s division of powers jurisprudence (though he does not explain on what issues), while the plebs (including, presumably, its representatives in Parliament) gladly and wisely accepts the pronouncements of the patres iudices: “Canadians,” Justice Rowe informs us, “have come to accept and embrace this enhanced role for judges. The wisdom and well-founded principles that have informed this role in the jurisprudence of the Supreme Court reflect favourably on our country.” Some might even find Justice Rowe’s frankness in stating these views refreshing in comparison with the balls-and-strikes boilerplate future members of the U.S. Supreme Court are now generally expected to spout. Yet to me, a judiciary that is no more bound by a sense of modesty than it is by the law itself is a distressing prospect. Considering that the Prime Minister and his advisers seem to be comfortable with it, I may have to get used to it too.

Unconstitutional

Thoughts on the constitutionality of the new Supreme Court appointments process

In my last post, I argued that the process for appointing Supreme Court judges announced by the federal government last week is not a positive development. It will neither increase the transparency of the appointments nor de-politicize them, while creating an illusion of having done so. In this post post, I turn to the separate question of whether this process is constitutional. Two issues are relevant here. One is the government’s insistence that all future judges be bilingual. The other is the possibility that it will disregard the convention of regional representation on the Supreme Court, which requires the next appointment to come from Atlantic Canada.

* * *

I have argued here that in light of the Supreme Court’s opinion in l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433 legislation requiring judges to be bilingual would be unconstitutional. Kate Glover has reached the same conclusion, albeit on the basis of a rather different reasoning, in a guest-post here. (I should note however that others, notably Sébastien Grammond, disagree with this view.) At the same time, it is quite clear that the government is entitled to make a policy choice to privilege certain criteria for appointing judges. After all, even a stated commitment to only appoint meritorious or excellent judges is an addition to the bare-bones constitutional requirements that l’Affaire Nadon froze in place. It would be well within the Prime Minister’s discretion to only appoint bilingual judges, and even to say that he would only appoint bilingual judges. (It would, I have argued, be an unwise thing to do, but that’s another question.)

The constitutional issue, then, is whether the government’s announcements amount to an attempt to modify the law governing the appointment of Supreme Court judges, which in my view would be unconstitutional, or are merely a policy statement, which would not be. I am inclined to think  that so long as the bilingualism criterion remains essentially a policy directive, found in nothing more law-like than press releases and mandate letters, it does not stray into unconstitutionality, despite the contrary suggestions of some others, such as Matthew Hennigar and Dennis Baker in a very informative roundtable discussion published by Maclean’s. The difference between their conclusion that the Prime Minister is (in prof. Hennigar’s words) “courting a constitutional challenge” and mine may be due to the fact that they approach the issue by asking whether the bilingualism requirement is formal (and therefore constitutionally questionable) or informal (and therefore permissible). In my view, it is better to think in terms of the legal or extra-legal nature of the requirement, rather than in terms of its formality, because the underlying concern is with the integrity of constitutional rules, not their expression. Still, my views on this are tentative, and I am open to being shown that they are in error.

* * *

The matter of the regional representation convention is more clear-cut. The government’s initial statements simply ignored the convention altogether. Then, the Prime Minister’s mandate letter to the Chairperson of the Advisory Board that will supply him with a shortlist of potential appointees asked her to “consider the custom of regional representation on the Court as being one of the factors to be taken into consideration.” But a constitutional convention is not a mere custom. It is a mandatory rule of the constitution, not just a factor to be taken into consideration among others. Violating it means acting unconstitutionally.

This point needs to be emphasized, because more than a few commentators seem to believe that an appointment in violation of the convention of regional representation would not be unconstitutional, because it would not be illegal or attract a judicial sanction. (Paul Daly’s dismissal of the convention as “fluid,” and a rule that can be tinkered with at will because it is not legal is sadly representative of this attitude.) I will return to the question of judicial sanction in a moment. But first, it is sadly necessary to remind those who think that ignoring conventions is a relatively trivial matter, that this has never been the position even those jurists who, following A.V. Dicey, insisted that courts could not enforce conventions. In the Patriation Reference, Re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753, the Supreme Court explained that

important parts of the constitution of Canada … are nowhere to be found in the law of the constitution. For instance it is a fundamental requirement of the constitution that if the opposition obtains the majority at the polls, the government must tender its resignation forthwith. But fundamental as it is, this requirement of the constitution does not form part of the law of the constitution. (877-78; emphasis mine)

These important, even fundamental, constitutional requirements, or ― as the Court also described them ― “essential rules of the constitution” (878) are conventions. The Diceyan view, which was also that of the Supreme Court in the Patriation Reference, is that constitutional conventions and constitutional law together make up the constitution. In the Patriation Reference, the Court observed that in some cases, a breach of convention “could be regarded as tantamount to a coup d’état.” (882) Of course, the breach of the convention of regional representation would not rise to that level of unconstitutionality, but it would still amount to unconstitutional action by the government, much like Pierre Trudeau’s attempt at unilateral patriation of the constitution would have been unconstitutional, although not illegal.

At Emmett Macfarlane’s urging, I will grant that the Advisory Board might take the convention more seriously than the government seems to want it to, or that the Prime Minister might yet see the folly of breaking it. The intervention of the CBA president Janet Fuhrer, who is “urg[ing]” the Prime Minister “to amend the mandate of the Advisory Board … to ensure that the Atlantic Canada vacancy is filled by a meritorious candidate from that region” is encouraging in this regard, although it is disappointing to see Ms. Fuhrer hedging her language and referring to “the longstanding custom or constitutional convention of regional representation.” The re-classification of convention into custom denigrates it and suggests that it is not binding on the Prime Minister. For the purpose of passing a political judgment on his actions, it really does not matter whether the constitutional rules he is prepared to breach are classified as being convention or law.

Now, this classification does matter for a court passing a legal judgment on the constitutionality of the government’s actions ― or at least it does so on the Diceyan view. I have argued in the past, and still believe, that this view is mistaken as a matter of legal philosophy. That is, of course, irrelevant. But there is now reason to question whether the Diceyan view is still valid in Canada as a matter of positive law. For one thing, as we know from the Patriation Reference itself, Canadian courts consider themselves free to express their views on conventions in the context of reference proceedings. It would be enough for a provincial government to refer the issue to its court of appeal for the convention of regional representation to be fair judicial game. Moreover, lower courts have already pronounced on constitutional conventions in the context of ordinary litigation (notably in Conacher v. Canada (Prime Minister), 2009 FC 920, [2010] 3 FCR 411, aff’d in Conacher v. Canada (Prime Minister), 2010 FCA 131, [2011] 4 FCR 22) though the Supreme Court has not yet had an opportunity to do so.

Then, there’s the possibility that that the Supreme Court has transformed at least some constitutional conventions into legal rules when it invoked the notion of a “constitutional architecture” in Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704. My view, at least, is that that’s exactly what the Court did, but this is a controversial claim, and I have no room to develop, much less to defend, it here. (I will try to do that in a paper I am due to write in the coming months, and I will try to blog about it as I do so.) Even if I am right, however, there remains the further question of which conventions are part of the constitutional architecture, and in particular whether that of regional representation is. In a very interesting post at the CBA National Magazine’s blog, Jennifer Taylor has argued that it is. She may well be right, but I need to think a bit more about this before I am sure.

* * *

Important though it is, the legal issue should not distract us from the constitutional one. Constitutionally (and legally), the Prime Minister is in my tentative view free to adopt a (misguided) policy of only appointing bilingual judges to the Supreme Court, and to ask his advisers to counsel him accordingly. But, constitutionally (whether or not legally) the Prime Minister is not free to deprive Atlantic Canada (or any other region) of its representation on the Supreme Court. The appointment of a judge from outside Atlantic Canada would be unconstitutional, regardless of whether it would be illegal (though it might be), and of whether or not courts could say so (though they could).

That the Prime Minister should be open to engaging in such behaviour makes it clear that ― rather like his predecessor ― he does not consider himself bound by the constitution, or at least those parts of the constitution that he thinks he might get away with ignoring. For this reason, I find the many expressions of support for the Prime Minister’s plan quite dispiriting. They give the impression that the scrutiny which the legal community rightly applied to the previous government’s cavalier approach to the constitution was as much the result of opposition to that particular administration as of a sincere belief in constitutionalism. And it would be very sad indeed if that impression were justified.

Smoke and Mirrors

The new process for appointing judges to the Supreme Court is nothing to be happy about

Last week, the Prime Minister announced a new(-ish) appointments process for judges of the Supreme Court of Canada. The announcement was met with praise by many, and criticism by some. For my part, I am with the critics. Far from being a triumph of transparency and depoliticization, this new process is an elaborate mechanism of smoke and mirrors set up by a government that wants to look like it is committed to improving the state of the Rule of Law and of Canada’s judicial institutions ― and to act like it is not.

The new process starts with a seven-member “Advisory Board” appointed by the government, which will receive applications from lawyers and judges who put themselves forward for an appointment, and is also asked “to actively seek out qualified candidates and encourage them to apply.” After consulting “with the Chief Justice of the Supreme Court of Canada and other key stakeholders the Board considers appropriate,” the Board will put together a list of three to five candidates and provide an assessment of how they meet the criteria for an appointment ― both the baseline laid out by the Supreme Court Act and the government’s wish list for a perfect judge. After a further round of consultations ― including, once again, with the Chief Justice ― “the Minister of Justice will present recommendations to the Prime Minister who will then choose the nominee.” Finally, the Chairperson of the Advisory Board, the Minister of Justice, and the chosen candidate (whom the government documents refer to as the “nominee” even though his or her appointment at that point, is a fait accompli or at least a foregone conclusion), will meet with Members of Parliament, the latter in a “question and answer session” moderated by a law professor.

Is this really a victory for transparency? In an excellent round table published by Maclean’s, Dennis Baker ― who, as we’ll see, is in many ways skeptical of the new appoitnment process, says that the “Government deserves credit for making the process more transparent and open.” Paul Daly is delighted that judges will no longer “actively lobby behind the scenes for elevation to the Court.” I am not so sure. There is simply no objective way to weigh the sixteen ― yes, sixteen ― criteria on the government’s wish list, and to classify the indefinite number of candidates whom the Advisory Board will consider according to these criteria. The same goes for the Prime Minister’s ultimate choice between as many as five candidates. Whatever reasons the Board and the government may give for their choices will be no more than exercises in ex-post self-justification, which does not count as transparency in my book, though the illusion of transparency the process creates may if anything be even worse than the current clearly opaque process. As for judges lobbying the Advisory Board or the Justice Minister behind the scenes, I see nothing in the government’s announcement preventing that from happening.   

In some ways, to be sure, the new process will be more transparent than those that were used before. In particular, it is pretty clear (although not explicit) that the Advisory Board’s shortlist will be public, which past shortlists were not (until leaked, or dug out by, the media). For my part, I do not find this change an improvement. I feel for those candidates who will be encouraged by the Board to apply and not shortlisted, and for those shortlisted and ultimately shortchanged. John Pepall asks whether MPs who take part in Parliamentary hearings with the Justice Minister “[w]ill … be told how unsuccessful applicants fell short of the ideal? That should do wonders for the administration of justice,” he says ― sarcastically of course.

The other supposed achievement of the new appointment process is that, in prof. Daly’s exultant words,

[n]o longer will political appointments be made because of party allegiance or ideology rather than legal acumen. … Henceforth, a judge’s ability to ‘do law’ will become the primary criterion for nomination, bringing Canada into line with other countries where appointments are made entirely on merit.

With respect, this strikes me as an unlikely prospect. First, as already noted, the Prime Minister retains substantial discretion under the new process, having reserved for himself the prerogative of choosing from among up to five candidates, and the large number of subjective, imponderable criteria supposed to guide that choice mean that any selection can be retroactively justified in suitably lofty language. Nothing stops this discretion from being used ― or abused ― to appoint the candidate seen as the most ideologically friendly, or indeed the one deemed to best satisfy some set of demographic desiderata having nothing to do with legal acumen. The government’s reported frustration at being unable to find a judge corresponding to such demographic criteria to replace the retiring Justice Cromwell gives little hope that they will not overshadow ability “to ‘do law'” as it goes forward with its Supreme Court appointments.

And second, even if the Prime Minister has no intention of doing this, the fix is already in by the time he receives the Advisory Board’s short list ― and it is his government’s design of the Board that assures that this is the case. In the Maclean’s round table, Troy Riddell says that

The dominance of the legal profession on the [Advisory Board] coupled with the other non-legal members appointed by the government is suggestive of the kind of candidates the government wishes to choose (and those whom they do not want to choose—namely those with more conservative ideology). [The new process] is an improvement over the old system, but “politics” broadly defined will stay play a role.

Lori Hausegger responds by saying that

the representation [on the Advisory Board] of the Canadian Bar, the Canadian Judicial Council and the Federation of Law Societies—not to mention a progressive conservative as chair … —suggests [excluding “someone with a more conservative ideology”] is not the government’s main focus.

However, as prof. Riddell points out,

Organizations representing lawyers and judges tend to see themselves as “guardians” of the constitution—their vision of the constitution and the relationship between courts and Parliament is likely not as liberal as some activists would desire, but it is more liberal than what would be espoused by a conservative-oriented jurist. The overall result could be a lack of ideological diversity on the Supreme Court bench, which I think would be unfortunate.

I think prof. Riddell is right, and indeed I would put the point more strongly. The legal profession and the judiciary already are ideologically homogeneous. This is why Stephen Harper found it so difficult to appoint judges to his liking. An advisory Board dominated by representatives of an ideologically homogeneous profession will be homogeneous itself, and, as any such group, will reproduce and reinforce its members’ preferences in its decisions.

Like prof. Riddell, I think this unfortunate, because I believe that courts benefit from ideological diversity just as much as they benefit from demographic diversity. However, the lack of such diversity as such is not a significant criticism of the new appointments process, because it is every bit as possible for appointments made at the Prime Minister’s unfettered discretion to be just as homogeneous. The reason I belabour this point, rather, is that it shows that the pretense that the new process is somehow de-politicized to be a sham.

There is more to say about the new process, but this post is getting long, so I’ll try to be brief. I will note that I have already explained, in some detail, why I think that bilingualism should not be required of newly-appointed Supreme Court judges. In a nutshell, while I take the point that competency in both official languages is an aspect, and a very important aspect even, of legal competence, judicial appointments inevitable involve tradeoffs, because all potential judges have their strengths and weaknesses, and I would not foreclose the possibility that a candidate’s strengths elsewhere outweigh his or her linguistic shortcomings. The requirement of bilingualism ― and the government’s wish list, which states that it “has committed to only appoint judges who are functionally bilingual,” makes it very clear that it is a requirement and not, as prof. Daly says, merely “a desirable characteristic” ― is a serious mistake.

And then, there is the question of just how heavily demographic considerations, such as gender, background, or disability will weigh in the new process. Although the government has hinted that such factors will matter ― and, other things being equal, a demographically diverse court is better than a homogeneous one ― it is rather encouraging to see that “[e]nsuring that the members of the Supreme Court are reasonably reflective of the diversity of Canadian society” is only one of the sixteen criteria on the government’s wish list, and indeed the very last one. As for the Advisory Board chairperson’s mandate letter, it does not mention this issue at all. Perhaps the government knows that its winks and hints will be enough ― but perhaps its approach really is a little less identity-focused than some of its fans might have hoped for, and its skeptics (yours truly included) feared.

This is ― perhaps ― a silver lining. But otherwise, the news of the shiny new appointment process for Supreme Court judges portends nothing good. The process conceals Prime Ministerial power as much or rather more than it diminishes it, while needlessly exposing unsuccessful candidates ― many of them, no doubt, sitting judges ― to public humiliation. It does not prevent the government from appointing judges on the basis of political or considerations or other factors unrelated to legal ability, and indeed ensures that ideology will continue to play a key role in judicial appointments. And it foolishly elevates bilingualism into a determinative consideration for appointment, reducing the pool of eligible candidates and doubtless depriving the Supreme Court of many fine judges. It is, in short, nothing to be happy about. As for the further question of whether it is also unconstitutional, I hope to return to it later this week.

Good Advice

Randy Barnett and Josh Blackman have an interesting piece in the Weekly Standard, with some pointed advice to the eventual Republican presidential nominee, whoever that might be, regarding the choice of nominees to the U.S. Supreme Court. Admittedly, it will be most interesting to constitutional law junkies and fascinated observers of the American legal system such as yours truly, because much of it has to do with the politics of the American nomination and confirmation process, and with the debate about the proper judicial role that might not resonate very strongly this side of the border. But it also contains lessons Canadian politicians of all stripes, and for the broader public.

Profs. Barnett and Blackman urge the appointment of judges with “paper trails” ― those, in other words, who have expressed their views on the law and on adjudication publicly. Partly, that’s because they want judges to be known quantities who will not disappoint those who have appointed them once in office. But they make another point: judicial “wannabes who ‘trim their sails’ and limit their potential based on a fear of a future confirmation hearing … lack the character a justice needs.” Profs. Barnett and Blackman quote Pamela Karlan ― a professor who has never been appointed to judicial office because, it is suspected, of her outspoken views ― who said that “Courage is a muscle. You develop courage by exercising it. Sitting on the fence is not practice for standing up.” And they add that would-be judges who “spend their careers seeking the approval of others” will bow to social and journalistic pressure once on the bench ― to the detriment of the Rule of Law.

I think this is a very important point. I wouldn’t go so far as to say that a “paper trail” should be a requirement for judicial office, even on the Supreme Court. I suspect that the bench at all levels, including the highest one, benefits from the appointment of people with a variety of professional backgrounds, including practising lawyers who, (almost) necessarily, will not have had the opportunities to express their views that law professors and sitting judges have. But profs. Barnett and Blackman’s argument about what “trimming one’s sails” says about a person’s character and independence of mind still holds. That a practising lawyer has not said controversial things probably does not prove that he or she is an approval-seeker; that a professor has never made an unorthodox or a controversial argument should make one more suspicious. A person, whatever his or her prior occupation, who has not been shy about expressing his or her views including when this might lead to criticism and disapproval demonstrates a character trait that is highly desirable in a judge ― though needless to say it is not the only such trait.

I am thinking of Justice Brown as I write this, of course, and the criticism his blog posts, in particular, have attracted. Professor Brown, as he once was, was an outspoken man who wasn’t afraid to ruffle some feathers among colleagues who, for the most part, did not share his views. Following his appointment to the Supreme Court, some of his critics have attacked the substance of his posts, which is fair enough, though as profs. Barnett and Blackman explain, politicians would be wrong to avoid appointing judges who will attract such criticism. But some of the criticism directed as Justice Brown’s appointment struck me as suggesting, deliberately or not, that there was something wrong with the very fact of then-prof. Brown’s taking controversial positions, or of the Prime Minister’s appointing a person who has taken such positions to the bench. Profs. Barnett and Blackman make a compelling case that criticism of this sort is wrong-headed.

There is, in addition, a broader lesson that we ― and especially our politicians ― can take from their article, whether or not we agree with its prescriptions. It is that the sort of judges political candidates plan on appointing if elected is an important question which deserves to be reflected upon, debated, and made an issue during an election campaign. A month into the ongoing federal campaign, we have not heard the candidates speak about this at all. We might, or might not, despite his nearly ten years in office, have a sense of what Stephen Harper’s approach to judicial appointments is. But about Justin Trudeau? What about Thomas Mulcair? Journalists, of course, bear a large part of responsibility here, since they have not asked these questions.

So here’s some advice of my own: if you are a journalist, do ask these questions. And if you are a wannabe Prime Minister, be prepared to answer them.

False Friends

The elevation of Justice Brown to the Supreme Court has provoked an outpouring of anguish and anger about the system of judicial appointments in Canada. The critics of the current arrangements, whereby judges of superior, federal, and appellate courts are in effect appointed by the federal government, with relatively little ex-ante and no ex-post control by anyone else say that they allow ideology, partisanship, or patronage to play too large a role in the selection of judges. Some go so far as to say that these arrangements make the impartiality of the judiciary questionable. In a recent op-ed in the Globe and Mail, Joseph Arvay, Sean Hern, and Alison Latimer go further still, and call for a constitutional challenge to be brought, allowing the Supreme Court to require the creation of “an independent appointment and promotion commission.” Actually, such a ruling by the Supreme Court may well prove a disaster for the independence of the Canadian judiciary.

I can’t help but notice that there is something deeply ironic about many of the calls for reform that have been prompted by the appointment of Justice Brown and, earlier, that of Justices Huscroft and Miller to the Court of Appeal for Ontario. These appeals give pride of place to the need to free the appointments process of the influence of ideology. Why is it, then, that they follow the appointment of judges known or suspected to be ideologically out of step with the bien-pensant Canadian legal community? Why was there nothing like the same amount of criticism directed at the process by Justice Côté was appointed, which was no different from that which led to the appointment of Justice Brown?

To be sure, the Canadian judicial appointments system has long had its critics, and they are entitled to use the news cycle to advance their arguments. But they seem to me to be a minority among those who have been denouncing the appointments process in the last few weeks. For the other would-be reformers, at least, the aim seems to be not so much to rid judicial appointments of ideology, but to prevent the appointment of certain judges for the same sort of ideological reasons which they say have no role to play in this process.

Whatever their motivations, Messrs. Avray and Hern and Ms. Latimer that the processes of judicial appointment and promotion in Canada “are systemically vulnerable to political strategizing and a majoritarian disregard for the importance of diversity on the bench.” It is clear enough that the ominous-sounding “strategizing” is the appointment by of judges presumed to be ideological allies. As for “diversity,” though its meaning is never actually explained, it seems to refer to a diversity of the demographic kind ― not a diversity of opinion.

According to Messrs. Avray and Hern and Ms. Latimer, the risk of “strategizing” and the lack of diversity create a risk that the judiciary will be perceived as not independent from government. They seem especially worried by the process of promotion from a lower to a higher court, over which the government now his full discretion. Litigants, they say, “must be free of all reasonable concern that the presiding judge could be influenced by a desire to be promoted.” As I have already said, their proposed solution to these ills to set up, by judicial fiat, an independent commission that would, presumably, see to it that merit and diversity are the only factors considered in the appointment and promotion processes.

This remedy would in my view be worse for the independence of the Canadian judiciary than the disease ― if, indeed, disease there is. Messrs. Avray and Hern and Ms. Latimer claim darkly that “public confidence in the process is failing,” but offer no evidence whatever in support of that claim. Is an outburst of panicked tweets and top-eds from a certain section of the legal community indicative of falling public confidence? Colour me skeptical. It is well known that the Conservative government has kept losing more and more cases before the Supreme Court even as it appointed more and more of that court’s judges. For anyone to think that, nevertheless, the appointment process has in any way undermined the Court’s independence, they would have to be simply paranoid. Messrs. Avray and Hern and Ms. Latimer are not paranoid, so they only speak of “appearances” of a lack of independence, but even so, it is hard to avoid the impression that appearances rather support than infirm the impression that the government has no sway whatever over the judiciary.

The inspiration for their argument is, of course, the Supreme Court’s notorious opinion in the Provincial Judges Reference. The Court said there that a constitutional principle of judicial independence demanded the creation of independent commissions that would issue recommendations as to the appropriate level of judicial compensation. But it is important to keep in mind what the Court did not say, too. Notably, it did not say that a neutral, impartial, or depoliticized appointments process was a component or a requirement of judicial independence. Indeed, the Supreme Court has never said that it was. To reach such a conclusion now would be a major innovation. The Court also did not require governments and legislatures to follow the commissions’ recommendations ― only to give a rational explanation for any refusal to do so. Could a government similarly disregard the recommendations of the commission proposed by Messrs. Avray and Hern and Ms. Latimer? If not, their proposal is even more of an innovation, compared with the alleged precedent for it. If yes, then how would the process work?

This is just one of the important practical questions that the op-ed does not even begin to address. While its authors denounce the lack of clarity about “the standard on which merit is determined” in the current process, they say nothing of the standard they themselves would like to see enforced by the commission they propose. (Nor do they say who ― the Supreme Court, Parliament, or the proposed commission itself ― should devise such a standard.)That is, I suspect, because there is and can be no objective standard at all. Of course, we can agree that some credentials and character traits are required in a judge, and some desirable, while other traits must be avoided; but not all judicial virtues are subject to universal agreement, and even among those that are, there is no agreement on how to weigh the different qualities are to be weighed. Nor is there a way of guaranteeing that judges will not decide cases with an eye towards the preferences of the authority responsible for promoting them ― whether the government or a commission. We must, in this respect (as in others) rely on the judges’ good faith and ethos of independence ― which is almost certainly stronger than the alarmists would have us think.

But the proposal of Messrs. Avray and Hern and Ms. Latimer is not “merely” unworkable ― it is also horribly counterproductive. It is important to appreciate its radicalism. There has never been an independent commission of the sort they recommend. (Indeed, when amendments to the process of appointing judges to the Supreme Court were proposed as part of the Meech Lake and Charlottetown accords were considered, the issue was involving additional political actors in the process, not creating an independent bureaucracy to direct it.) Implicit in the argument that such a commission is required to uphold the appearance of judicial independence is, then, the striking proposition that the Canadian judiciary has never in its history appeared quite independent of the executive that appointed it. Not when it stopped Pierre Trudeau’s attempts at unilateral Senate Reform or Patriation; nor when it struck down the Lord’s Day act or a variety of criminal law provisions insufficiently respectful of the rights of suspects and the accused; nor yet more recently, as it delivered rebuke after rebuke to the present government. Nobody actually believes that, of course. A judicial decision that ratifies this principle would be a substantial constitutional amendment. (Not the first such amendment, to be sure, as Grégoire Webber has cogently demonstrated.)

Would such an amendment be a good thing? Admittedly, I am skeptical of its substantive merits, as I actually believe that ideological diversity on the bench, which is no less, and probably more, important than the demographic kind, is better served by government control over judicial appointments than by a commission staffed, in all likelihood, by people committed to the prevailing orthodoxy. But even if you disagree with me about that, you ought to be concerned about the introduction of such an amendment by judicial fiat. The Supreme Court’s opinion in the Provincial Judges Reference has been the subject of withering criticism (for example, by Jean Leclair) ― and yet its practical impact, in terms of impairing the powers of governments, was arguably a good deal less  serious than that of a ruling requiring appointments commissions would be. The backlash against such a ruling would almost certainly be stronger still. It was bad enough when judges seemed to be protecting their colleagues against the impact of budget cuts to which all public servants were subject. It will be worse if they seem to be insulating the courts from all outside influences, including those that have been regarded as legitimate and indeed desirable for 150 years. Those who are concerned about appearances out to be distressed by the prospect a judicial decision coming across as a self-interested constitutional coup.

Messrs. Avray and Hern and Ms. Latimer probably think that they act as the friends of the Canadian judiciary. But they do not. A friend does not expose you to a temptation in which he knows you to indulge more often than is good for you, as Canadian courts do with re-writing constitutional law. A friend does not urge to stake your reputation on an enterprise whose benefits are uncertain at best, as decision requiring appointments commissions would be. Most importantly, a friend does not make disparaging insinuations about you in order to make you cave to his requests, as Messrs. Avray and Hern and Ms. Latimer do when they claim, without any basis, that the courts are already losing their legitimacy.

Living with Imperfect Judges

The arguments about limiting appointments to the Supreme Court to bilingual candidates are rather tired, not to mention more or less moot. But they keep coming back, over and over again. I actually wrote about the topic a while ago, but since it is in the news again, following the appointment of (the apparently bilingual) Justice Brown, and since not all of my readers are bilingual themselves, it might be worth returning to.

The first thing to say here is that, as I have already noted, the Supreme Court’s opinion in l’Affaire Nadon, 2014 SCC 21, [2014] 1 S.C.R. 433 means that any legislation to add bilingualism to the list of requirements for Supreme Court appointments would be unconstitutional. The criteria, as they now exist, have been set in stone by the Court’s conclusion that they are part of the “Constitution of Canada,” and more specifically of the “composition of the Supreme Court of Canada.” It would take a constitutional amendment supported by every province to change them.

Of course, that does not make it impossible, or necessarily wrong, for a Prime Minister from making it his policy, even publicly declared policy, to only appoint bilingual candidates. Indeed, there is nothing to prevent such practice, if continued long enough (and by more than one Prime Minister), from becoming a constitutional convention. So the question whether instituting such a practice, and trying to foster such a convention, would be a good idea.

The argument in favour of requiring bilingualism is that it is imperative that a judge be able to understand the parties appearing before him or her. To be sure, the Supreme Court has a translation service, including simultaneous translation at the hearings, but that’s not good enough. Translators can make mistakes, and when the fate of a litigant, and sometimes even of the country, is at stake, it is unconscionable to allow the outcome of a case be affected by such things. This seems compelling enough, until we start asking more precisely what it is that the proponents of mandatory bilingualism want, how they plan to achieve it, and what the cost of doing so would be.

It is good and well to say that a judge must understand those who appear before him, but what level of understanding is enough? Is fluency mandatory, or is a lesser level of proficiency sufficient? Grégoire Webber, perhaps the only person I have seen address this question, says “legal competency in language is satisfied by understanding a case without the aid of an interpreter” ― a standard that strikes me as very vague. A person might think that he or she does not need the assistance of an interpreter, and yet be mistaken about this, or at least end up with a worse understanding of the case than if he or she had relied on an interpreter.

Partly for this reason, it matters how we are going to determine whether a judge meets bilingualism requirements, whatever they are. Will we rely on an appointee’s say-so, or are we going to have them take the civil servants’ exams? Is having a judge take an exam, especially one where evaluation is in part discretionary, and where so much is at stake, ever a good idea? Can it be squared with judicial independence? At the very least, those who clamour for bilingualism requirements owe us answers to these questions. They have seldom, if ever, given any.

However, even if these questions could be answered in a satisfactory fashion, a policy of mandatory bilingualism would come with significant downsides. Fears, such as those of the National Post’s editorial board, that it would become well-nigh impossible to appoint judges from the non-bilingual parts of the country are clearly overblown (as the appointment of Justice Brown seems to demonstrate). But it is true that the pool of eligible candidates would become a good deal shallower than it now is. Among the current judges, the Chief Justice and Justice Moldaver (as well as Justice Rothstein, whom Justice Brown will replace) could not have been appointed under a mandatory bilingualism rule. I think this has to be acknowledged as a clear loss. Both the Chief Justice and Justice Moldaver made efforts to learn French since their appointments, by the way ― the Chief Justice, at least, with considerable success, so much that she is now generally regarded as bilingual. Still, it is a mistake to forget that she was not bilingual when she was first appointed. And more generally, as I said in my earlier post on the subject, to the extent that a unilingual candidate is regarded as better qualified than a bilingual one, is there not an injustice involved ― an injustice to all the litigants who will appear before the court ― in not appointing him or her?

Prof. Webber argues that linguistic competency is an aspect of legal competency, and that there is therefore a loss of quality involved in appointing unilingual judges. I agree with that. If I were in the business of appointing judges to the Supreme Court, I would consider any evidence of their bilingualism as a major strength, and evidence of the contrary as a weakness. But I would keep in mind the fact that judicial appointments inevitably involve tradeoffs. A prospective judge might be a brilliant criminal lawyer, but know relatively little about commercial law. Another can be an expert on the civil law, but have only limited notions of the common law. Such judges are therefore, far from perfect ― but sometimes, far from perfect is the best we can get. There is no Hercules hiding out there within the ranks of the Canadian legal profession, awaiting a Supreme Court appointment. Similarly, lack of linguistic skills is a flaw in a potential judge ― but I would not foreclose the possibility that a candidate who has this flaw nonetheless represents the best balance of flaws and qualities available, or the one that is most adapted to the present needs of the court to which he or she will be appointed.

To be sure, I think it is incumbent on newly-appointed judges to be aware of their shortcomings, and to do their best to remedy them. Given the breadth of the Supreme Court’s jurisdiction, no judge can be expected to be an expert in all the areas of the law that may be relevant to its work, but all judges can be expected to try to fill the gaps in their legal knowledge. And in the same way, I think it is fair to ask that judges who do not speak or understand one of the Court’s languages try hard to learn it ― exactly as the Chief Justice has done and Justice Moldaver is doing. But it would not be fair to expect all to succeed perfectly.

There are good reasons why appellate courts are multi-member institutions. One of these reasons is that the judges all have their strengths and weaknesses, and the strengths of some can help mitigate the weaknesses of others. In the context of the Supreme Court of Canada, unilingualism is a weakness. As some the current judges prove, it is not an incorrigible one even at the individual level but, more importantly, this weakness can be remedied by the institution. It would be great, of course, if the Supreme Court’s bench consisted of nine fluently bilingual experts on every part of Canadian law. But, realistically, we must make do with imperfect judges. Among the many judicial imperfections, I do not think that unilingualism is a uniquely disqualifying one.

Who Are These People?

I wrote yesterday that the “conservative judicial appointments” narrative that the Globe and Mail’s Sean Fine has spent the last several months developing was essentially unsupported by the evidence. A few hours after I published my post, there was a new judicial appointment ― that of Justice Russell Brown to the Supreme Court ― and Mr. Fine got busy penning another “Tory judges” article. My own impression after reading it is that Justice Brown is brilliant, independent-minded, and universally respected ― but Mr. Fine does his best to make his appointment sound somehow sinister all the same.

There is one element of Mr. Fine’s latest piece that I want to comment on ― its reference to “liberal” and “conservative” judges. He describes Justice Brown as a “conservative judge,” and says that his appointment “will not alter the balance between conservative and liberal members of the court.” But what does this mean? Mr. Fine doesn’t actually offer any definition and we are, mostly, left to guess.

Mr. Fine did offer a definition of what “conservative” judges were in his lengthy “exposé” of the alleged Conservative “remaking” of the Canadian judiciary, published last weekend. He said that

[i]n Canada, judicial conservatism tends to mean judges who accept the wishes of legislators – judges who defer to Parliament’s primary role as lawmaker and are reluctant to find fault with a government’s choices.

But, as I wrote yesterday, there is nothing inherently conservative about such an approach. It can serve to validate left- or right-leaning policies, depending on the politics of the policy-makers. Besides, what Mr. Fine says about Justice Brown ― specifically, the fact that he supported a group devoted to advocating for property rights and limited government ― makes me wonder whether he is really “conservative” in the above sense. What is it, then, that makes Justice Brown a “conservative judge,” and some of the current Supreme Court judges “conservative”? Ditto for their “liberal” colleagues.

In the United States, these terms have a relatively settled, well-understood meaning. Some decisions ― for example, in favour of criminal defendants, in favour of the federal government and against the states, or in favour of unions ― are considered “liberal.” The opposite decisions are “conservative.” A judge who votes for “liberal” outcomes is liberal; a judge who votes for “conservative” outcomes is conservative. It’s a crude measure, because it ignores the facts of the cases as well as precedent and other constraints on judges, but it is pretty popular in some quarters.

Yet as I explained over at the National Magazine’s blog, attempts to classify Canadian judges as “liberal” and “conservative” in this way are unlikely to yield meaningful results. We don’t see legal issues through the same ideological prism as the Americans do. Are decisions in favour of the provinces and against the federal government ― for example in the Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, or Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704 ― conservative? Americans might think so, but Stephen Harper, for one, would beg to differ. Yet are such decisions “liberal” in any meaningful sense? I don’t think so either.

I suspect that Mr. Fine is not actually thinking in these terms either. Rather, he is probably using an even cruder way to count judges as “liberal” or “conservative” ― by using the party of the Prime Minister who appointed them as a proxy for their ideology. This, after all, was essentially the thrust of his weekend “exposé” ― the judges appointed by the Conservative government are conservative, even though, as Emmett Macfarlane noted, a grand total of two of them could plausibly be described as ideological conservatives. Yet as I also explained in the National Magazine post linked to above, this approach doesn’t work in Canada either:

In contrast to the situation in the United States, there are not, in Canada, two (or three, or more) distinct legal worldviews, each associated, more or less firmly, with a political party. I have argued elsewhere that ― paradoxically given their complaints about allegedly “liberal” judges, and in contrast to the situation in the United States ― the Harper Conservatives have not even tried to articulate an alternative, “conservative” constitutional theory. They are not alone. The Liberals do not have much of a constitutional theory either, except for a tendency to wrap themselves in the Charter; nor does the NDP. And outside of the realm of constitutional law, the parties have, if anything, even fewer legal ideological commitments.

In short, though there are Liberal-appointed and Conservative-appointed judges (as well judges appointed by governments of one party and promoted by those of the other, like Chief Justice McLachlin!), there are no “liberal” and “conservative” judges. That does not mean, as I have said before, that Canadian judges are free from ideological commitments. But these commitments are not adequately captured by labels imported from the US, and liable to do particular mischief in Canada because here, unlike in their country of origin, they track names of actual political parties, which risks creating the utterly unwarranted impression that judges are political partisans. And if Mr. Fine meant something else, he really owed it to his readers to explain what it was. Who are those liberal and conservative judges he is talking about?

What’s the Big Deal?

The Globe and Mail’s Sean Fine has for months been pushing a “conservative judicial appointments” narrative, and he was back at it this weekend, with a lengthy piece on “Stephen Harper’s Courts.” We are, I take it, supposed to be worried about a “judiciary [that] has been remade” by ideologically shaped appointments. Mr. Fine quotes quite a few people who are worried and further reports on calls for the appointment process to be revamped to purge it of nefarious ideological influences. But for my part, I see very little that is objectionable in what Mr. Fine reports. Not only is there, as Emmett Macfarlane has pointed out, very little evidence of a conservative remaking of the judiciary, but if or to the extent that a remaking has occurred, there is nothing objectionable about it.

The one disturbing fact that Mr. Fine presents is that some sitting judges actively lobby the government for promotions. Such lobbying, it seems to me, creates a real danger that the judge will try, whether consciously or not, to ingratiate himself with the government in his or her decisions. In other words, it creates an appearance of bias if not actual bias. Judges should strive to remain above such suspicions. The possibility of promotion is a weak spot in the arrangements protecting judicial independence, and judges themselves should not be exploiting it.

There is nothing improper, however, in a government seeking to appoint judges with whose ideological leanings it is comfortable. Of course, judicial appointments should be merit-based ― in the sense that every person appointed to the bench should deserve to be, by virtue of his or her accomplishments and character. But that’s just a threshold. Ideology, in my view, can properly be taken into account in deciding whom to appoint among the candidates who can get over that threshold. (It’s worth noting that, as Mr. Fine points out, the committees that screen applicants for judgeships rate many more as “recommended” ― and used to rate more as “highly recommended” when that was an option ― than there are positions available).

Now we should keep our sense of perspective about this. As prof. Macfarlane has pointed out, Mr. Fine mentions a grand total of two judges (Grant Huscroft and Bradley Miller) who can fairly be described as ideological conservatives. The rest of Mr. Fine’s “remaking the judiciary” case is built on the appointment of judges said to be not so much conservative as deferential, to Parliament and to precedent. But there is nothing inherently conservative about deference. A deferential judge will give way to Parliament or precedent regardless of whether they are “conservative” or “liberal” or something else.

That said, even to the extent that some of the judges appointed by the Conservative government are indeed ideologically conservative, there is nothing wrong with that. As I have argued repeatedly here and elsewhere, judging is in part an ideological activity, and Canadian judges, whether appointed by Mr. Harper or by any of his predecessors, are not free from ideology. We might like to think that they are, and that the core tenets of our legal system, such as the “living tree” approach to constitutional interpretation, on which Mr. Fine dwells in his article, are somehow natural and value-free. But that is an illusion. “Living tree” interpretation is no less of an ideological commitment than originalism, albeit one that most Canadian lawyers share most of the time (though by no means always, as I have pointed out here and Benjamin Oliphant, more recently, at Policy Options).

Given that no matter what judges the government appoints, it will  always be appointing judges whose decisions will, in part, be influenced by their ideology, I don’t see anything wrong with governments wanting to appoint judges who will be influenced by what they see as the right ideology. Indeed, like prof. Marfarlane, I think that it is a good thing that the current government has been able to inject at least a modicum of ideological diversity into the Canadian judiciary. As I wrote in response to one of Mr. Fine’s earlier articles,

[t]he lessons of Jonathan Haidt and his colleagues’ work on the mischiefs of ideological uniformity, about which I recently wrote over at the National Magazine’s blog, are relevant to courts as well as to the social sciences. Precisely because ideology affects adjudication, more ideologically diverse courts will produce better argued decisions, in the same way, as prof. Haidt et al. show, as an ideologically diverse academy will produce more solid research.

As I also wrote in that post, an individual judge actually has very little power except that of persuading his or her colleagues or, in the case of lower court judges, hierarchical superiors. Are the people who decry the appointment of some judges seen to be ideological outliers actually worried that these few judges, despite being a small minority, will convince other judges that they are right?

What would indeed be worrying is evidence to support David Dyzenhaus’s assertion, quoted by Mr. Fine, that “that the appointment of judges is from a very small pool of lawyers,” resulting in a lower-quality bench. Now it is no doubt true that, as prof. Dyzenhaus says, “people of considerable ability are being passed over.” But that in itself is not a problem, so long as are more able candidates than positions on the bench. And Mr. Fine presents no proof that that is not so. That said, it is worth noting that the Conservative government and the broader conservative movement have done nothing at all to broaden the pool of genuinely conservative lawyers whom they could appoint to the bench. As I pointed out here, they neither articulated much of an ideology, nor created any sort of organization that might do so, like the Federalist Society did in the United States. But those from whom ideological diversity on the bench is a source of concern can take comfort in the Conservatives’ laziness.

In short, there is little evidence of impropriety in the Conservatives’ handling of judicial appointment, at least Mr. Fine describes it. (Ironically, his piece does not even mention what is arguably the most serious charge against them in this regard ― their notorious reluctance to appoint women to the bench.) Similarly, there is no evidence in Mr. Fine’s piece that we need to change the judicial appointments process. Indeed, I would go so far as to say that attempts to “depoliticize” that process are a bad idea insofar as they will prevent a government from pushing back against the ideological homogeneity of the judiciary. Such pushback, far from being a problem, is a good thing that will improve the quality of the bench and of the decisions Canadian courts render.

No, no, no!

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.

* * *

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 62014 SCC 21, [2014] 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.

* * *

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.

* * *

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” [71] ― 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.

* * *

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.

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.