Justice Nadon – Double Aspect

Richardson: Rigorous Vavilov Review

In one of the Federal Court of Appeal’s post-Vavilov cases, CNR v Richardson, the Court (per Nadon JA) demonstrates that Vavilov review, on substantive questions of law, will not be inattentive or subordinate to administrative discretion. Indeed, while some suggest that Vavilovian review is “inherently deferential,” I see the matter quite differently: Richardson shows how Vavilov review puts the court in the proper position to rigorously enforce the statutory boundaries of administrative decision-making, particularly where decision-makers fail to engage with elements of the statute at all.

Richardson is an agri-food business that owns and operates 54 grain elevators [3]. CN and CP serve a number of Richardson’s elevators [3]. Meanwhile, the Canadian National Railway Company (CN) and the Canadian Pacific Railway Company (CP) connect railway networks at Scotford, Alberta [5], though the mainlines of each do not connect at Scotford. Around this connection (about 30km) lays Richardson’s Lamont elevator, located on CN’s main line [6].

Richardson filed an application before the Canada Transportation Agency, asking that the Scotford site be deemed an “interchange” and that Richardson traffic be transferred for “interswitching” between Scotford and Lamont elevator. Under the relevant statute (the Canada Transportation Act), an interchange “means a place where the line of one railway company connects with the line of another railway company and where loaded or empty cars may be stored until delivered or received by the other railway company” (s.111). Meanwhile, “interswitch” “means to transfer traffic from the lines of one railway company to the lines of another railway company” (s.111). The goal of interswitching is to ensure that shippers with only one choice of railway have “fair and reasonable access to the rail system at a reasonable rate.” Obviously, this would benefit Richardson.

The Agency first concluded that CN and CP operated an interchange, under the statute, at Scotford. While the Agency noted CN’s argument that its main line did not connect with CP’s main line at Scotford, it ultimately held that s.111 of the statute did not make a distinction between the type of railway line required to make the connection [11]. Rather, under the statute, a railway line is defined broadly [11]. Further, s.140 of the statute outlines exemptions for what a “railway line” does not include. To the Agency, if Parliament wanted to limit interchanges to areas where main lines connected, it could have include a similar exclusion in s.111 of the statute [11].

On judicial review, CN argued that the Agency erred in interpreting the definition of “interchange.” The first question for Nadon JA was the standard of review. He concluded that while, pre-Vavilov, the standard was reasonableness, the case came before the Court on a statutory right of appeal, which meant that the standard of correctness applied [42-44]. But Nadon JA went on to conclude in obiter that even though the standard of review was correctness, “[u]nder the previous standard of reasonableness, I would have had no hesitation concluding that the Agency’s interpretation was unreasonable because it failed to consider both context and the legislative scheme as a whole” [46]. Moreover, the Agency misapplied a principle of statutory interpretation—the so-called “implied exclusion rule” adopted by the Agency was inconsistent with Supreme Court precedent (see Green, at para 37). As such, Justice Nadon remitted to the Agency to receive its view about the interpretive matter, especially in light of the new correctness standard.

Nadon JA’s analysis is tightly connected to Vavilov, and demonstrates how courts should apply Vavilov in light of defective statutory reasoning. As Vavilov notes, at para 108, the governing statute is the most “salient” aspect of the context bearing on a decision-maker. As such, this most salient aspect must be rigorously enforced against the decision-maker. But a court cannot do so in absence of reasons from the decision-maker engaging with the statute. Indeed, the reasons must demonstrate some engagement with this and other constraints (Vavilov, at para 120). It is for this reason that decision-makers are required to interpret the law in concert with its text, context, and purpose (see Vavilov, at paras 118, and 120). While the Agency is not required to engage in a “formalistic analysis” (Vavilov, at para 119), and not all errors will be material (Vavilov, at para 122), a failure to engage with purpose at all as in Richardson must be considered fatal, if the governing statutory scheme is a real constraint on administrative decision-making. More specifically, purpose and the overall context must always be considered in run-of-the-mill statutory interpretation cases, and a failure to do so is fatal in that context (see ATCO Gas & Pipelines, 2006 SCC 4 at para 48), as Vavilov says it can be in the administrative context. And what’s more, a failure to use the proper principles of interpretation is a failure of reasoning that Vavilov says is impermissible, because a decision-maker’s interpretation of a statutory provision must be consistent with the text, context, and purpose of a provision, and because “the usual principles of statutory interpretation apply equally when an administrative decision maker interprets a provision” (Vavilov, at para 120).

Richardson, then, is on solid ground. The Agency’s failure to consider the overall statutory context means that it was not “alive” to an essential element of interpretation (Vavilov, at para 120). A failure to engage with the statute at all cannot, on any understanding of the term, be reasonable. And the Agency’s use of the implied exclusion rule, without considering the broader context and purpose, clearly runs counter to the Supreme Court’s comments in Green about the implied exclusion rule. The failure to properly engage with the statute in its entirety, without using the proper tools of interpretation, is a Vavilovian error.

There is a broader point of principle here. As Vavilov implicitly holds, it is not formalistic to expect decision-makers, who share in the enterprise of law-making, to actually do the task properly. Indeed, proponents of deference cannot say two things at once: they cannot insist that decision-makers are contributors to law-making, but then grant decision-makers the ability to engage in reasoning that does not engage with the most obvious and natural limitation on administrative decision-making (Vavilov, at para 109). Either decision-makers are shared partners in law-making or they are not.

It is true that reasons are the focus of Vavilov, and so it is methodologically deferential to look at those reasons first. But this does not lessen the rigorousness of Vavilovian review, at least as exemplified by Nadon JA in Richardson. Indeed, the reasons are merely the window into the application of the constraints on the decision-maker. They are not an invitation for courts to sit back—reasons require responsive engagement by the Court, in relation to the application of the principles of interpretation.

While Nadon JA’s remarks in Richardson are obiter, they are a good example of the promise of Vavilov: rigorous reasonableness review that is focused on the statute and in ensuring that administrative decision-makers engage with the statute.

L’Affaire Nadon, R.I.P.?

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

* * *

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

They did because the Code of ethics of advocates, CQLR c B-1, in force until about one month ago provided, at par. 4.01.01a), that holding “judicial office on a permanent or full-time basis” is “incompatible with the practice of the profession of advocate.” However, as both the federal government and the Canadian Association of Provincial Court Judges observe in their respective facta filed at the Supreme Court in l’Affaire Mainville, the Code of Professional Conduct of Lawyers, CQLR c B-1, r 3.1, changes this rule.

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

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

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

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

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

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

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

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

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

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

« Suffisamment québécois »

Le nouveau juge en chef de la Cour d’appel fédérale, Marc Noël, a récemment prononcé un discours qui explique très bien les problèmes soulevés par l’avis rendu par la Cour suprême dans l’Affaire Nadon, Renvoi relatif à la Loi sur la Cour suprême, art. 5 et 6, 2014 CSC 21, [2014] 1 R.C.S. 433. Ces problèmes, sont aussi au coeur du renvoi concernant la constitutionnalité de la nomination à la Cour d’appel du Québec du juge Mainville.

Le juge en chef Noël commence par rappeler que,

[q]ue ce soit dans le domaine de l’immigration, la sécurité nationale, la recherche pharmaceutique, l’accès à des médicaments génériques, l’éthique gouvernementale, le co-voisinage avec les peuples autochtones, les menaces environnementales et j’en passe, les Cours fédérales ont un impact réel et presque quotidien sur le vécu des gens. (1)

Et, bien entendu, « [c]es enjeux sont maintenant bien québécois, et nourrissent des pratiques florissantes » (2).

D’ailleurs, de par leur loi constitutive, les Cours fédérales font une large place aux juristes québécois qui y représentent le droit civil: en vertu de l’article 5.4 de la Loi sur les cours fédérales, cinq juges de la Cour d’appel fédérale (sur un total de 13) et 10 juges de la Cour fédérale (sur un total de 37) doivent avoir été des juges ou des avocats québécois.* Tout comme à la Cour suprême, les juristes québécois sont surreprésentés par rapport à ceux des autres provinces. Les juges québécois, souligne le juge en chef, ont eu beaucoup de succès au sein des Cours fédérales. Et, leur connaissance intime de la common law et le fait qu’ils l’appliquent régulièrement ne fait pas d’eux de moins bons civilistes: « [b]ien au contraire, la connaissance en profondeur d’un autre système de droit donne du relief à sa propre tradition juridique ». (3) Les cours fédérales sont, après tout, des tribunaux de droit civil, comme l’Assemblée nationale le reconnaît depuis longtemps.

Or, de dire le juge en chef Noël, l’avis de la Cour suprême dans l’affaire Nadon met en péril cette réussite. En créant l’impression que les juges québécois des cours fédérales sont déconnectés du droit civil et des « valeurs sociales » du Québec et en leur fermant les portes de la Cour suprême, il décourage les candidats québécois potentiels à la magistrature fédérale et sape « le respect institutionnel qu’imposent » les membres de celle-ci. (5) C’est pourquoi

[l]e Québec ne peut se réjouir du fait que ceux qui occupent la place réservée au Québec au sein des Cours fédérales ont désormais un statut diminué par rapport à celui réservé aux juges des autres provinces. Seuls ceux qui veulent voir les Québécois et le Québec se désengager des institutions fédérales, pour ne pas dire en sortir, peuvent se réjouir de la déconsidération des juges du Québec. (9)

Selon le juge en chef Noël, la Cour suprême n’avait « envisagé les conséquences de la création de deux classes de juges, à l’intérieur d’une même cour» (10). Maintenant, il faut y remédier, ce qui est d’autant plus difficile que la Cour suprême a accordé un statut constitutionnel aux qualifications requises des personnes qui y sont nommées.

Le juge en chef Noël semble donc confirmer ma prédiction, dans ma critique de l’avis de la Cour suprême dans l’affaire Nadon, que celui-ci

découragera[it] des Québécois talentueux et ambitieux de postuler à siéger au sein des tribunaux fédéraux, ce qui va nuire à la qualité de ces tribunaux et, ironiquement, leur capacité à représenter la tradition et la communauté juridique du Québec.

Son discours fait aussi écho aux arguments du gouvernement fédéral et des intervenants qui ont défendu la constitutionnalité de la nomination de son collègue le juge Mainville à la Cour d’appel du Québec. Tout comme le juge en chef Noël, ceux-ci ont insisté sur le fait que les cours fédérales font partie du système juridique québécois dont ils appliquent le droit au même titre que les cours supérieures, et que leurs juges sont des membres à part entière de la communauté juridique québécoise.

Yves Boisvert, un chroniqueur d’habitude très intelligent, a mal pris le discours du juge en chef Noël. Ironisant au sujet des « juges québécois de la Cour fédérale [qui] sont profondément meurtris et se sentent victimes d’une injustice », il a dénoncé un discours « politique », une « charge […] sans précédent [e]t franchement contraire au devoir de réserve des juges ». M. Boisvert a tort. Devoir de réserve n’égale pas mutisme obligé. Les juges peuvent se prononcer sur des enjeux d’actualité reliés au système judiciaire, même si leurs déclarations peuvent trouver un écho dans le débat politique, comme ils le font régulièrement en parlant, par exemple, d’accès à la justice ou comme des juges l’ont déjà fait en parlant d’égalité et de discrimination.

Un juge ne manque pas à son devoir de réserve parce qu’il dénonce une vision du droit québécois et même de l’identité québécoise selon laquelle les juristes québécois qui sont nommés à l’une des cours fédérales cessent illico d’être, selon les termes de M. Boisvert, « suffisamment québécois ». (Qu’il me soit permis d’ouvrir une parenthèse ici: lors de l’audience du renvoi concernant la constitutionnalité de la nomination du juge Mainvile, Sébastien Grammond, qui y représentait l’Association canadienne des juges des cours provinciales, avait invoqué le danger que les tentatives d’exclure de la magistrature les candidats jugés insuffisamment québécois ne s’arrêteront pas aux juges des cours fédérales. J’ai pensé qu’il s’agissait d’un argument de pente glissante dramatisé et un peu gratuit. Mea maxima culpa. Si Yves Boisvert parle en ces termes, il ne s’agit pas de conjecture, mais d’un clear and present danger.) Pour revenir à mon propos, un juge ne fait pas de la politique s’il constate que cette vision poussera les juristes québécois à « se désengager des institutions fédérales » et se rend à l’évidence en suggérant que ce sont les séparatistes qui en seront les premiers heureux.

Du reste, le juge en chef Noël a été plutôt modéré dans ses propos. Il n’a pas suggéré que la Cour suprême « stfu », comme l’a fait, à l’endroit de la Cour suprême des États-Unis, le juge Kopf, de la Cour fédérale du district de Nebraska. Il ne se livre pas à une guerre d’usure contre des juges des la Cour suprême, comme le fait, toujours aux États-Unis, le juge Posner, de la Cour d’appel pour le 7e circuit, avec le juge Scalia. Il n’a même pas dit, comme l’a fait le prof. Grammond à l’audience du renvoi Mainville, que la vision qu’il dénonçait tenait de la « crispation identitaire ». Et pourtant, il n’aurait pas eu tort de le faire.

M. Boisvert se trompe aussi en prétendant que seuls « les ego froissés d’une quarantaine de juges » peuvent s’insurger contre une décision de la Cour suprême et une attitude (non seulement québécoise, d’ailleurs, comme en font foi les positions prises par les avocats torontois Rocco Galati et Paul Slansky dans le cadre du renvoi sur la nomination du juge Mainville) dont l’effet est, comme je l’écrivais en commentant l’audience dans ce renvoi, « de confiner les Québécois à leur propre province et de les empêcher de faire du Canada tout entier leur pays ». C’est dommage que M. Boisvert n’ait pas assisté, justement, à cette audience, car il y avait, je crois, une odeur de rébellion dans l’air. Le résultat de l’affaire Nadon a divisé les juristes québécois davantage que d’aucuns ne veulent l’admettre.

Ayant toujours critiqué ce résultat, je suis bien sûr ravi de voir le juge en chef Noël le dénoncer. Le fait qu’il prenne la parole publiquement et parle des conséquences de cet avis auxquelles la Cour suprême n’a probablement pas réfléchi me donne un peu plus espoir que ces conséquences pourront être limitées, à défaut de pouvoir être renversées. Mais il me donne surtout espoir que l’étroitesse d’esprit de ceux qui divisent les Québécois en ceux qui le sont « suffisamment » et ceux qui ne le sont pas sera, à terme, contrée.

*Le juge en chef, j’ai bien peur, se trompe quant au nombre de juges. Cela ne change rien au fond de son propos.

What You Wish For

As promised, here are some thoughts on the Supreme Court’s opinion in l’affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. As I mentioned in my last post, which summarized the majority opinion and Justice Moldaver’s dissent, I think that the majority opinion is a weak one. I should note that my views here seem to be very much in the minority. The commentary I have seen so far is very enthusiastic. Carissima Mathen has written that “[t]he Court has held the government to account [and] asserted its independence“; Adam Dodek has described it “an instant landmark ruling, a classic ruling,” and Paul Daly, as “a huge day for the Canadian federation.” I am sorry to dissent from such esteemed jurists. Yet dissent I must, because, in my view, the majority’s opinion neither responds to some of the most serious arguments against it, including those articulated by Justice Moldaver, nor considers the unfortunate consequences that it is bound to have.

With respect to the statutory interpretation issue of whether s. 6 of the Supreme Court Act allows the appointment of former, rather than current members of Québec’s bar or s. 96 judiciary to the Supreme Court, I basically agree with Justice Moldaver’s dissenting opinion. With respect to the meaning of s. 6, the majority opinion acknowledges that it must be read together with s. 5, which provides the minimum criteria of eligibility, notably the 10-year bar membership requirement and, to use Justice Moldaver’s expression, “cherry-picks” among the possible ways in which these provisions can be combined. If the 10-year requirement must be read into s. 6, then why not the possibility to appoint former judges or lawyers?

The key to the majority opinion is really its view that the purpose of s. 6 is not only to ensure that the Supreme Court has sufficient expertise in the civil law, but also that it is seen as having such expertise and representation of Québec’s “social values,” whatever those might be and, further, the assertion that the Court can only be so seen if its members are, at the time of their appointment, current members of Québec’s bar or s. 96 bench. With respect, this view is mistaken.

As Justice Moldaver, I do not believe that there is any substantial connection between current membership in Québec’s bar or s. 96 bench and a judge’s legitimacy as Québec’s representative on the Supreme Court. Judges of Québec’s provincial court are steeped in Québec’s legal and social reality, yet they are excluded; so are judges of the federal courts, even though they are specifically appointed there as representatives of Québec’s civil law system, and regardless of the amount of time they have spent on there. At the same time, a lawyer who spends his or her career abroad but maintains membership in the Québec bar is eligible. How this mix of eligibility criteria serves to make potential appointees more legitimate representatives of Québec is beyond me. Prof. Mathen and Michael Plaxton have argued, and the Supreme Court’s majority has agreed, that although imperfect, it is still a reasonable proxy for the purpose of ensuring the Court’s legitimacy, but the fit between these criteria and the alleged purpose is so loose that it seems more reasonable to me to suppose that the statutory purpose must be different from that which these criteria so poorly support.

Indeed, taking the idea that current membership in Québec’s legal profession is required to make a judge a legitimate representative of the province on the Supreme Court leads to the absurd conclusion that the longer a Québec judge sits on the court, the less legitimate he or she is, by virtue of his or her allegedly growing detachment from Québec legal culture and “social values.” I do not believe that anyone has ventured such a suggestion, but it seems to follow from the logic adopted by the Supreme Court’s majority. That logic, in my view, reflects ― and reinforces ― a sadly narrow view of what it means to be a Quebecker and a Québec jurist. As André Pratte has pointed out,

[i]f we follow [this] reasoning, a lawyer who practiced for 10 years in Rivière-du-Loup would be a more suitable representative for Québec than a brilliant jurist who, for example, spent a part of his career with the International Court of Justice. (Translation mine).

The majority’s reasoning does not get any better when it gets into the constitutional part of its opinion. Indeed, the neither the majority nor Justice Moldaver really explain how any part of the Supreme Court Act gets to be constitutionally entrenched, despite not being mentioned in the Schedule to the Constitution Act, 1982, apart from asserting that the Court is so important that it just has to be. But the Court was already important before the entrenchment of the Constitution Act, 1982 ― yet not constitutionally protected. Indeed, our original supreme court ― i.e. the Judicial Committee of the Privy Council was stripped of its jurisdiction by ordinary acts of Parliament. (The Supreme Court’s willingness to reason in this way, however, is probably very bad news for the federal government’s unilateral Senate reform plans.) Nor does the majority explain why eligibility criteria, including the length of required bar membership, are part of the Supreme Court’s “composition.” As a strictly textual matter, this does not seem obvious to me, and Justice Moldaver’s doubts in this respect would, at the very least, have deserved a response.

The majority’s opinion is thus poorly argued (indeed, it is more asserted than argued, if argument entails responding to counter-arguments), yet it will have unfortunate consequences. In particular, it will limit the pool of Québec jurists available to sit on the Supreme Court; and, from now on, it will deter talented and ambitious Québecois from applying to sit on the federal courts, which will undermine these courts’ quality and, ironically, their ability to represent Québec’s legal community and tradition.

Another consequence of the majority’s reasoning, which I do not mind but which ought to displease some of the the Court’s decision’s supporters, is that a law restricting future Supreme Court appointments to bilingual candidates would be unconstitutional. Since the constitutionally entrenched “composition” of the Court “refers to ss. 4(1), 5 and 6 of the Supreme Court Act, which codify the composition of and eligibility requirements for appointment to the Supreme Court of Canada as they existed in 1982″ (par. 91; emphasis mine), the addition of a requirement of bilingualism would be every bit is unconstitutional as the removal of a (purported) requirement of current membership in Québec’s s. 96 bench or bar. Now this consequence may well be a feature, not a bug of the majority’s opinion. Be that as it may, I think it is important to point out this effect of the decision, which no commentator, as best I can tell, has yet addressed.

To be sure, the issue of the meaning of the Supreme Court Act’s eligibility provisions was not a simple one. Emmett Macfarlane has a point when he writes that “there were clear legal reasons to support either outcome” ― not clear, perhaps, but serious ones. Still, I think that on the issue of the legislation’s purpose, Justice Moldaver wins hands down. And even if the legal issue could have gone either way, the Court ought to have considered the consequences of its decision and reasoning, which in my view clearly weighed in favour of allowing the nomination of federal court judges to the Québec seats of the Supreme Court. Of course, it is the federal government and the Prime Minister who are ultimately responsible for the shambles that Justice Nadon’s nomination has become. They wanted to pick a fight with the legal community ― they got it, and the country will be worse off as a result. But the same can be said of Québec’s friends and defenders, who will have ended up undermining the province’s representation on the federal courts and perhaps the Supreme Court too, not to mention making impossible the enactment of legislation requiring judicial bilingualism which many of them deemed desirable or even necessary. Be careful what you wish for.

No-don

Yesterday, the Supreme Court has delivered its opinion concerning the legality and constitutionality of the appointment (and swearing in by the Court!) of Justice Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. By a 6-1 majority, it finds that Justice Nadon’s appointment was not authorized by s. 6 of the Supreme Court Act, and that the enactment by Parliament of a purportedly “declaratory” provision which (retrospectively) authorized it was unconstitutional, because any change to the criteria of eligibility to the Supreme Court provided the Supreme Court Act is a constitutional amendment requiring the unanimous consent of the provinces under par. 41(d) of the Constitution Act, 1982. In this post, I will summarize the decision (at terrible length, I am afraid), and comment on it in the next one.

The first issue for the Court to address was whether s. 6 of the Supreme Court Act authorizes the appointment of a person who was, at some point in the past, but is no longer, a member of the Québec Bar, and is not a judge of either Québec’s Superior Court or the province’s Court of Appeal ― for example because, like Justice Nadon, that person resigned his or her bar membership to become a judge of one of the federal courts. In the majority’s view, the history, the “plain meaning” and the purpose of s. 6 prevent the appointment of such a person.

With respect to history, the appointment criteria of the original version of the Supreme Court Act allowed the appointment of former judges, but not former lawyers. That was specifically changed in the provision which eventually became s. 5 of the current Act, which applies to the appointment of all judges, but not in the narrower provision applicable to judges from Québec, which is now s. 6, which still bears the stamp of the initial exclusion of former lawyers. Former lawyers who become federal court judges can thus be appointed to the Supreme Court under s. 5 ― but to one if its Québec seats under s. 6.

Regarding the “plain meaning” of s. 6, the Court’s majority points out that, unlike s. 5, this provision does not contain wording suggesting that past membership in Québec’s bar or judiciary is sufficient for eligibility to the Supreme Court. S. 5 speaks of persons who “[are] or ha[ve] been” lawyers or judges; s. 6 merely says that appointees must be chosen “from among” Québec judges or lawyers. For the majority, this difference is decisive:

the words “from among the judges” and “parmi les juges” do not mean “from among the former judges” and “parmi les anciens juges”, and the words “from among the advocates” and “parmi les avocats” do not mean “from among the former advocates” and “parmi les anciens avocats” (par. 41).

As for the purpose of s. 6, the majority finds that it

is to ensure not only civil law training and experience on the Court, but also to ensure that Quebec’s distinct legal traditions and social values are represented on the Court, thereby enhancing the confidence of the people of Quebec in the Supreme Court as the final arbiter of their rights (par 49).

The majority points out that, without the assurance that the setting aside of seats for Québec provides, the Supreme Court would never have been created. The requirement of current, and not merely past, membership in “civil law institutions” (i.e. Québec’s bench or bar) “was intended to ensure not only that those judges were qualified to represent Quebec on the Court, but that they were perceived by Quebecers as being so qualified” (par. 56). To be sure, the way in which Parliament chose to implement this purpose may be imperfect; it may exclude some people who are, in reality, qualified to bring their knowledge of the civil law and of Québec’s legal tradition to the Court. But ― as Carissima Mathen and Michael Plaxton, whose paper the opinion refers to (and whom I congratulate!), argued ― Parliament chose a reasonable way of implementing this purpose, and the Court must give effect to its will.

Having concluded that the appointment of Justice Nadon to the Supreme Court was not authorized by s. 6 of the Supreme Court Act, the majority must then consider the constitutionality of a provision added to the Act, s. 6.1, which purported to authorize the appointment of former, as well as current, members of the Québec bar. Paragraph 41(d) of the Constitution Act, 1982, requires the consent of Parliament and of all the provincial legislatures to any amendments “to the Constitution of Canada in relation to … the composition of the Supreme Court” ― but does not define what “composition” means; nor does the Schedule to the Constitution Act, 1982, list the Supreme Court Act, or any of its provisions, in the list of the enactments which the “Constitution of Canada includes.” Due to these omissions, the federal government argued that 6.1 did not change any rule that was actually part of the constitution.

The majority rejects this position. After reviewing at some length the evolution of the Supreme Court’s role in the Canadian constitutional system, of which it has become the final independent arbiter, it concludes that this role requires the “composition” of the Court, mentioned in par. 41(d), as well as its “essential features” (par. 94), mentioned in par. 42(1)(d) of the Constitution Act, 1982, ― but not the entire Supreme Court Act ― to be protected from unilateral amendment by Parliament. “Composition,” it asserts, refers to the number of judges “and eligibility requirements for appointment to the Supreme Court of Canada as they existed in 1982” (par. 91). Accepting that the relevant provisions of the Supreme Court Act are not part of “the constitution of Canada” would lead to the conclusion that the references to the Court in the Constitution Act, 1982, were meant to entrench the federal power of unilateral amendment, which the provinces cannot have intended. Thus s. 6.1 of the Supreme Court Act is, in reality, a constitutional amendment, and lacking the requisite provincial support is of no effect. Justice Nadon’s appointment was void ab initio.

Justice Moldaver, dissenting, is of the view that “[s]ections 5 and 6 [of the Supreme Court Act] are inextricably linked — and that is the key to appreciating that the minimum eligibility requirements of s. 5 apply equally to the Quebec appointees referred to in s. 6″ (par. 121). Reading the 10-year bar membership requirement, but not the possibility of appointing former bar members, both of which are only found in s. 5 into s. 6 is “cherry-picking” (par. 124). The words of s. 6 itself contain no requirement of current bar or bench membership.

As for the purpose of s. 6, Justice Moldaver argues that it “is, and always has been, to ensure that a specified number of this Court’s judges are trained in civil law and represent Quebec” (par. 145). The purpose of protecting Québec’s “social values,” which the majority invokes, has no basis in the Supreme Court Act. In any case, there is no evidence that Quebecers’ confidence in the Supreme Court’s ability to protect their unique legal system would be undermined by the appointment of former, rather than current, Québec lawyers ― who, after all, include the judges of Québec’s provincial court, as well as judges of the federal courts who occupy seats specifically reserved for Québec-trained judges:

[w]hy such persons, otherwise eligible for appointment to this court by virtue of their 10 years standing at the bar, would suddenly become unacceptable to the people of Quebec on the day of their elevation to the bench escapes me (par. 147).

Justice Moldaver also rejects the argument that Parliament’s establishment of the requirement of current bench or bar membership is a reasonable, albeit imperfect, way of realizing its objective:

when interpreting a statute to determine what the relevant criteria are — i.e. what Parliament intended them to be — absurd results are to be avoided (par. 148; emphasis in the original).

This, in Justice Moldaver’s view, is the case with s. 6. Justice Moldaver points out that s. 6 not only excludes people who would make perfectly qualified Supreme Court judges, but also allows the appointment of people who would not be. A person can maintain his or her Québec bar membership merely by paying the fees and completing some continuing education work. The fact that a person with “only the most tenuous link to the practice of civil law in Quebec” (par. 150) can be appointed pursuant to s. 6 makes it

implausible … that anyone would view current membership at the Quebec bar as the sine qua non that assures Quebec’s confidence in appointments to this Court. Likewise, it is equally implausible that being a past member of the Quebec bar could singlehandedly undermine this confidence (par. 151).

Furthermore, the requirement of a current bar membership could be satisfied by re-joining the bar for a day ― which goes to show just how hollow it is.

As for the constitutional issue, Justice Moldaver does not need to address it, since in his view the new s. 6.1 of the Supreme Court Act is redundant. He says, nevertheless, that the setting aside of three seats on the Supreme Court is part of its constitutionally protected “composition.” He does not, however, pronounce on what else that term might embrace, pointing out that it seems strange that “any and all changes to the eligibility requirements” (par. 115) would require unanimity,

whereas an amendment that affected other features of the Court, including its role as a general court of appeal for Canada and its independence, could be achieved … using the 7-50 formula (par. 115).

In the result, Justice Nadon’s appointment is void. Whether this is the last we, and the Supreme Court, have heard of him is an open question. The majority’s opinion does not exclude the stratagem of his resigning judicial office and rejoining the Québec bar for a day, so as to be re-appointed as a current member of the bar, still less the possibility of his temporary appointment to Québec’s superior court and re-appointment to the Supreme Court from there. Be that as it may, I think that the majority’s opinion is very weak. I will explain why shortly.

Cross-Purposes

I wrote some time ago about the challenges, legal and political, to the appointment of Justice Marc Nadon to the Supreme Court. I argued that although the appointment was unwise because Justice Nadon did not bring enough to the Court, the legal challenge to it, on the basis that he did not fulfill the requirements of s. 6 of the Supreme Court Act as a Québec judge (not being, allegedly, an “advocate of that province”) was without merit. An interesting new paper by Michael Plaxton and Carissima Mathen argues otherwise.

Professors Plaxton and Mathen take issue with the conclusions of an opinion of (the former Supreme Court Justice) Ian Binnie to the effect that an appropriately contextual and purposive reading of s. 6 did not exclude potential judges who had been lawyers in Québec in the past, but had given up their Québec bar membership (in Justice Nadon’s case, in order to serve on the Federal Court and then the Federal Court of Appeal). Justice Binnie, they say, fails to give to consideration to one of the purposes of s. 6; but, as or more importantly, he was wrong to allow legislative purpose to eclipse the plain text of the provision.

While Justice Binnie took the purpose of s. 6 (as well as of s. 5) to be to ensure that members of the Supreme Court have a certain minimum degree of experience, professors Plaxton and Mathen argue that s. 6 “also reflects the need to assure Quebeckers that members of the Supreme Court have … expertise” (20) in Québec’s civil law. Parliament’s chosen way to provide this assurance is by requiring that the prospective Québec judges’ relationship with the practice of the law in the province be “ongoing,” as evidenced by a current, rather than a former, bar membership or a seat on one of Québec’s courts. If the purpose of s. 6 is understood in this way, then the exclusion of federal court judges from appointment to one of the Québec seats is not absurd; it even makes sense, contrary to what Justice Binnie said, that a lawyer who could have been appointed directly to the Supreme Court after a career at the bar becomes ineligible after serving on the Federal Court of Appeal despite this experience obviously making him or her more, rather than less, qualified.

There is anyway a danger, say professors Plaxton and Mathen, in paying too much attention to the purpose of a statute at the expense of its text. One might do that, after all, not only to relax the text’s apparent requirements if they appear more stringent than necessary to fulfill the statute’s purpose, as Justice Binnie proposes to do with s. 6, but also to strengthen them if they seem insufficient. So if the purpose of s. 6 is to ensure expertise, we might as well read the requirement of actual expertise into the law. But of course we don’t want to be in the business of ascertaining a potential judge’s actual expertise, much as we don’t want to ascertain the level of maturity of a voter. Statutes can provide easy-to-verify requirements which will serve as proxies for the accomplishment of their purposes ― age as a proxy for the maturity of voters, an ongoing connection to the legal practice in Québec for Supreme Court judges. Of course, the proxies are imperfect, but a legislative choice in favour even of an imperfect proxy deserves deference.

This is a good point (and the analogy to voting age rules hits home, because I have myself argued for a bright-line rule in that case, against Ilya Somin’s suggestion that young voters’ political knowledge be tested in order for them to accede to the franchise before they turn 18), but I am not persuaded. Even if our first reaction is to defer to a legislature’s choice of a proxy measure to ascertain the realization of the purpose it is pursuing, so that we should be wary of going too quickly to the purpose to circumvent statutory text, there can be no such thing as unlimited deference. If the proxy chosen by the legislature is unreasonable, it forfeits its claim to deference.

Hence the importance of professors Paxton and Mathen’s argument to the effect that current membership in the Québec bar or a place on the Québec bench is a good proxy for something important, “a current understanding of Quebec civil law” (19). I do not think that this argument succeeds though. S. 6 is simply too poor proxy for the purpose professors Plaxton and Mathen impute to it. It it both over- and underinclusive for this purpose. Overinclusive, because it not only does not prevent the formalistic workaround of a federal court judge resigning office, re-joining the Québec bar of a single day, and then being appointed to the Supreme Court, but also, and more importantly, because it does not prevent the appointment of a lawyer who, while paying his fees and thus maintaining membership in the Québec bar, has no ongoing connection with it. Professors Plaxton and Mathen worry that on Justice Binnie’s interpretation of s. 6,

it would be possible to appoint a person who practiced law in Quebec for 15 years, but for the past 10 years has lived and practiced in Vancouver, ensconced in the common law system. … [I]f the point is to assure Quebeckers that the Supreme Court can draw on judges who are familiar with and sensitive to French Canadian legal traditions, that result looks … problematic.

But of course, even on their interpretation it would be perfectly possible to appoint that person provided that he or she had the foresight of paying Québec bar fees and doing the occasional continuing legal education course.

Furthermore, if the purpose of s. 6 is understood in this way, it is underinclusive too, because on its face, it seems to prevent the appointment not only of federal court judges, but also of those of Québec’s provincial court, who surely cannot be reasonably said not to have an ongoing connection to the province’s legal practice. In short, s. 6 does not really fit the purpose identified by professors Plaxton and Mathen better than that identified by Justice Binnie.

Beyond this, I think one should be cautious about divining the purpose of a statute from the statements of some individual parliamentarians, on which professors Plaxton and Mathen seem to place a good deal of reliance. As Justice Binnie shows, the difference between the wording of sections 5 and 6 of the Supreme Court Act, which seems to suggest a narrower eligibility for Québec seats on the Supreme Court than for others, is a historical quirk. His analysis of these provisions is, in my view, fully persuasive.

Tempest in a Teapot

I’m quite late to the topic, but I want to say something about the debacle that is Justice Nadon’s appointment to the Supreme Court. The government’s decision to appoint him is being attacked both legally and politically, and while the political criticism cannot undo it, the legal challenge could, in theory, and has already forced Justice Nadon to step aside from the Supreme Court’s work. Yet, ironically, the legal challenge is without merit. So are some of the political attacks ― but not others.

The line of criticism against Justice Nadon’s appointment that does have merit concerns his suitability for the job. As Jeffrey Simpson put it yesterday in the Globe and Mail, “the Supreme Court deserves better.” It is simply not clear what qualifies Justice Nadon for the Supreme Court ― it is certainly not his expertise in maritime law, which will go unused there. Actually, Justice Nadon’s most important asset in the eyes of the government which appointed him was probably his usual strong inclination to side with the government in disputes about its power. The best-known and most dramatic example of that was his dissent in Canada (Prime Minister) v. Khadr, 2009 FCA 246, [2010] 1 FCR 73, where he argued that not only had Canada not infringed Omar Khadr’s rights, but in fact that it did all it could for him ― in Justice Nadon’s view, it seems, interrogating a citizen who you know has been tortured is helping him. Presumably, the government expects Justice Nadon to take the same sensitivity with him to the Supreme Court, and help endorse its agenda, starting with the Senate reform plan the constitutionality of which the Court is due to consider next month. Appointing a judge in the expectation that he will be rubber-stamp rather than an independent thinker does, of course, deserve harsh criticism. If anything, there has not been enough of it in the last few weeks.

What there has been too much of, however, is criticism of Justice Nadon’s ability to represent Québec. The most absurd claims, voiced by members of the provincial government, is that Justice Nadon does not deserve to be appointed to one of Québec’s seats at the Supreme Court because he lives on the Ontario side of the Ottawa river. La Presse’s André Pratte demolished this line of argument in a recent editorial, pointing out that

The seemingly more serious critique concerns Justice Nadon’s supposed lack of familiarity with Québec’s civil law ― the distinctiveness of which, after all, is the reason Québec is entitled to three judges at the Supreme Court in the first place. But this herring is of only a mildly less intense hue of scarlet than the matter of Justice Nadon’s address. It is simply not true that all the judges appointed from Québec are civil law experts. Justice Fish, for example, whom Justice Nadon was appointed to replace, was a criminal law expert, and I’m not sure he had ever dealt with civil law in his practice. He did serve on the Québec Court of Appeal for a long time prior to his appointment to the Supreme Court, dealing of course with civil law cases, but I don’t think that it ever became an area of expertise for him. The same is true of Chief Justice Lamer (whose prior judicial service was mostly on the Superior Court). Justice Beetz had taught constitutional law prior to becoming a judge, and served only briefly on the Québec Court of Appeal prior to his appointment to the Supreme Court. Yet they were all distinguished (and, in the case of Chief Justice Lamer and Justice Beetz, arguably great) judges. No judge can be an expert in, or even familiar with, all the areas of the law with which his or her court deals with. This is especially true of Supreme Court judges, who might be called on to deal with just about any case that can conceivably arise in the Canadian legal system. Judges have to learn on the job ― and it probably doesn’t matter very much whether a particular judge’s learning curve is steepest in civil, criminal, or constitutional law. It is legitimate to ask just what each judge brings to the Supreme Court’s table ― and in Justice Nadon’s case, the answer seems to be, sadly, not a whole lot. But it is not fair to criticize a new appointee for what he or she does not bring ― there are no good judges by that standard.

Right or wrong, political critiques about the wisdom of Justice Nadon’s appointment cannot undo it. A legal challenge, originally launched by a Toronto lawyer, then joined by the Québec government, and subsequently superseded ― in practice although not yet technically, so far as I know ― by the federal government’s decision to submit the issue to the Supreme Court on a reference, is another matter. The problem is that s. 6 of the Supreme Court Act provides that “[a]t least three of the judges [of the Supreme Court] shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” Justice Nadon is obviously not a judge of the Court of Appeal or the Superior Court of Québec. He was, prior to his appointment to the Federal Court, an “advocate of that province” ― but of course he no longer is one. At first glance, only current, not former, Québec lawyers can be appointed. By contrast, s. 5 of the Supreme Court Act, which applies to all judges (other than those from Québec), provides that “[a]ny person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” This wording embraces former lawyers, and thus permits the appointment of judges from the federal courts. Since s. 6 is drafted differently, it should also be understood differently ― or so goes the argument; and at first glance, it is a persuasive one.

Even more persuasive to me, however, is the opinion of (the former Supreme Court) Justice Ian Binnie, who has concluded that, despite the literal meaning of these provisions, their correct interpretation permits the appointment to the Supreme Court of former members of the Québec bar who have subsequently served in the federal courts, such as Justice Nadon. Justice Binnie’s argument is twofold. First, he studies the history of the predecessor provisions of sections 5 and 6, and concludes that the current wording of s. 6 is only a quirk of statutory revision, which does not actually reflect Parliament’s intent to prevent the judges of federal courts (or, say, of international tribunals) from being appointed to the Supreme Court. Legislative purpose is the second element of Justice Binnies analysis. The raison d’être of sections 5 and 6, he says, is to ensure that only qualified, experienced candidates can be appointed to the Supreme Court. But reading s. 6 as preventing the appointment of former Québec lawyers who then became federal court judges not only does nothing to achieve that purpose ― it contradicts it, because it would mean that a lawyer who could be appointed to the Supreme Court straight out of practice could not be appointed after serving some years at the Federal Court of Appeal ― despite being, obviously, a more experienced and better qualified candidate. I encourage you to take a look at Justice Binnie’s analysis. It is quite brief and easily readable ― and, as I said, very persuasive.

Justice Nadon’s nomination was supposed, it seems, to be a vessel that would carry the federal government to the sweet lands of success, whatever projects of its that the Supreme Court might be called upon to validate ― starting with that about Senate reform. The vessel was not fully seaworthy ― but that wasn’t expected to matter. Yet it has been caught in a legal storm that is going to keep Justice Nadon at sea for the next several months, if not longer, and which might yet sink him, if the Supreme Court disagrees with Justice Binnie. Ironically, that storm is, in my view, nothing but a tempest in a teapot.