The Mainville Appointment Is Constitutional

It’s taken me a long time to gather my thoughts on this, but here goes, half-baked though they still are. As everybody knows, Justice Robert Mainville, of the Federal Court of Appeal, has been appointed to the Québec Court of Appeal, and Rocco Galati, the lawyer who first challenged the appointment of Justice Marc Nadon to the Supreme Court, has challenged the constitutionality of Justice Mainville’s appointment too. In a guest-post published on Tuesday on this blog, Maxime St-Hilaire has argued that Justice Mainville’s appointment is, indeed, unconstitutional. For my part, I am not persuaded.

To clarify: I am not concerned here with the legality (or constitutionality), under s. 6 of the Supreme Court Act (to which the Supreme Court’s opinion in l’Affaire Nadon gave a constitutional status) of an eventual promotion of Justice Mainville to the Supreme Court. Like prof. St-Hilaire, I am only interested in the constitutionality of Justice Mainville’s appointment to the Québec Court of Appeal under s. 98 of the Constitution Act, 1867, which provides that “[t]he Judges of the Courts of Quebec shall be selected from the Bar of that Province.” Justice Mainville was not a member of the Québec Bar at the moment of his appointment; hence the question whether the appointment is constitutional.

A first reading certainly seems to suggest that it is not. The problem with relying on the first reading only is that it would also seem to make unconstitutional other sorts of judicial appointments which ― unlike that of a sitting judge of the federal courts ― are routine and which have never been challenged yet. One sort of such appointments is the promotion of Superior Court judges to the Court of Appeal. The other is the promotion of Court of Québec judges to either the Superior Court or the Court of Appeal. In theory, long-standing practice cannot make constitutional something that is not; in practice, however, courts will not be keen on invalidating such a practice, especially one that concerns their own functioning, at least if they can credibly avoid doing so. Prof. St-Hilaire suggests how they can in fact do so, distinguishing the appointment of a federal judge to the Québec Court of Appeal from the promotion to that court of either a Superior Court judge or a provincial court judge.

Regarding the promotion of Superior Court judges, prof. St-Hilaire points out that “[f]rom a constitutional standpoint, provincial courts of appeal are ‘superior courts’ in a broad sense of the term” (translation mine) Thus the promotion of a Superior Court judge is, in his view, not really a new “appointment.” A judge is only “appointed,” in the sense of s. 98, once ― to the Superior Court. If he or she was eligible then, he or she is eligible for a promotion to the Court of Appeal. With this I have no quarrel.

Prof. St-Hilaire makes the same move regarding the promotion of judges of the Court of Québec. S. 98, as he points out, is not restricted to “superior courts” ― it speaks of “the Courts of Quebec,” which include both provincial and superior courts. Therefore, he argues, the promotion of a judge of a provincial court does not matter; a promoted judge was and remains a “Judge of the Courts of Quebec”. If he or she was eligible for an appointment to the Court of Québec, he or she remains eligible for a promotion to the Superior Court.

I find this claim problematic. Even though Québec’s provincial and superior courts are all “courts of Québec,” they are constitutionally distinct courts. So a provincial court judge promoted to the Superior Court (or the Court of Appeal) is still (newly) appointed to that court, and still has to be “selected” to it, in conformity with s. 98 ― every bit as much as a federal court judge (such as Justice Mainville).

That doesn’t dispose of the constitutional question ― perhaps, although we hadn’t realized it so far, s. 98 really does prevent the promotion of provincial court judges as well as the appointment of federal court judges. Such a result would be inconvenient, but hardly monstrous; indeed, it would be consistent with what the Nadon reference holds the situation for eligibility to the Supreme Court to be. Yet is this result compelled by s. 98?

The answer to that question turns on the interpretation of the term “from the Bar of that Province.” Prof. St-Hilaire says that is has to be interpreted in the same way as the term “from among … the advocates of [Québec]” in s. 6 of the Supreme Court Act. Despite the outward similarity of these two terms, there are reasons of text, context, and statutory purpose to believe that their interpretation need not be identical.

Regarding text, the two provisions are not quite as similar as prof. St-Hilaire suggests. S. 6 of the Supreme Court Act explicitly contemplates promotion from lower courts ― which it lists ― as well as appointment of Québec “advocates.” Its specificity made “reading in” other groups of potential appointees (such as former members of the bar) more of a stretch than doing it for the more generally worded s. 98.

Perhaps more importantly, the surroundings of these provisions in their respective enactments are quite different. S. 6 of the Supreme Court Act is preceded by a s. 5 which explicitly contemplates the appointment of former members of the bar to non-Québec Supreme Court seats, which again made their exclusion from s. 6 easier to justify. By contrast, s. 98 is preceded by a s. 97, applicable to the common law provinces, which ― in an almost exact parallel to s. 98 ― provides that “the Judges of the Courts of those Provinces appointed by the Governor General shall be selected from the respective Bars of those Provinces.” On the face of this provision, judges of the provincial or federal courts would thus be ineligible. (That would, by the way, include Justice Abella, who was appointed to the Ontario Court of Appeal from the (provincial) Family Court.) Now there might be a distinction between Québec and the common law provinces, because s. 97 only refers to “Judges of the Courts of those Provinces appointed by the Governor General,” while s. 98 refers to all “Courts of Québec.” I’m not sure what to make of this distinction; if anything, it might suggest that provincial court judges are ineligible for elevation to Superior Courts in common law provinces even if they are not in Québec. I suspect, however, that the distinction is immaterial. Be that as it may, the bottom line here is that in interpreting s. 98 of the Constitution Act, 1867, statutory context is, in contrast to the situation with ss. 5 and 6 of the Supreme Court Act, no obstacle, and maybe even an inducement, to interpret the term “Bar” as including former members who have become judges.

The differences between the wording ss. 97-98 of the Constitution Act, 1867, and ss. 5 and 6 of the Supreme Court Act also point to a difference in the purposes of the Québec-specific provisions of these laws. In contrast to the situation under the Supreme Court Act, appointment to provincial superior (and appellate) courts is no different for Québec than in common law provinces. It is, in my view, somewhat misleading to say, as prof. St-Hilaire does, that “[t]he spirit of section 98 of the Constitution Act, 1867 was and remains to protect Québec’s distinct legal culture,” because s. 97 does the exact same thing for common law provinces. While it contemplates an eventual “uniform[ization]” of the civil law of these provinces (pursuant to s. 94 of the Constitution Act, 1867), it also makes it clear that until ― and unless ― such uniformization happens, each common law province will preserve own distinct legal culture and community. Thus we cannot simply import the purpose of s. 6 of the Supreme Court Act into s. 98 of the Constitution Act, 1867.

Indeed, in the Nadon Reference, the Supreme Court found that the purpose of s. 6 was

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. Put differently, s. 6 protects both the functioning and the legitimacy of the Supreme Court as a general court of appeal for Canada (par. 49; emphasis in the original).

The Supreme Court held that this representational, legitimizing purpose could only be fulfilled by current, rather than former members of the Québec bar (a conclusion with which I do not agree).

The appointment of judges to superior courts (including appellate ones) is not subject to the same imperatives. Unlike on the Supreme Court, these judges are hardly expected to act as representatives of a legal culture, because all the other judges on their courts belong to the same culture. The courts themselves are creatures of the constitution, not of legislative compromise that must be justified to the population of a province (as the creation of the Supreme Court had to be justified to Quebecers). Because superior courts apply provincial laws, it is essential that their judges be familiar with these laws, which justifies the requirement of provincial bar membership. But the Supreme Court, in the Nadon Reference, suggests that former bar membership is sufficient to ensure competence.

I was wrong, I should note, in my initial take on the legality of Justice Nadon’s appointment, and in particular I was wrong ― assuming, that is, that the Supreme Court was right ― about the purpose of s. 6 of the Supreme Court Act. So I could just as easily be wrong here. But, for what it’s worth, I think that s. 98 of the Constitution Act, 1867 doesn’t prevent the appointment of former members of the Québec bar ― and thus of the judges of provincial or federal courts, including Justice Mainville ― to Québec’s Superior Court or Court of Appeal. For what it’s worth, by the way, the Québec government might not disagree.