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.

* * *

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.

7 thoughts on “L’Affaire Nadon, R.I.P.?

  1. I think we can probably discount option (3). Even if the Supreme Court itself was entrenched at some unspecified point between 1949 and 1982, the “composition of the Supreme Court” was not entrenched until 1982. Option (3) would also suggest that the other aspects of the Court protected by Part V (eg its jurisdiction) were frozen in time at the unspecified point, which seems like a surprising conclusion.

    I don’t think the question is resolved one way or another by the Nadon decision, and I haven’t given this much thought, but I’ll offer an alternative option (3): the requirement is that the nominee be a current, practicing member of the bar. This way, s. 6 is insulated from random regulatory changes which could have the effect of rewriting its text and defeating its purpose. Plausible?

    • You may be right about (3), although I’ve always found the Court’s entire reasoning about its entrenchment “surprising” ― or, indeed, incomprehensible.

      I doubt that they would go for your alternative, because it seems like a subjective, or at least a vague, test. What does it mean to be a current, practicing member of the bar? Do professors count? What about solicitors? Rocco Galati would say no…

  2. Léonid, great comment. I had thought the exact same thing when reading your reference to this issue in the federal government’s factum, in your post on the Mainville case. I am still shaking my head in bewilderment over the Nadon decision – ugh, what a mess. From day one the statutory interpretation argument struck me as weak, and the constitutional argument not even that, but given the number of scholars and commentators (to say nothing of Supreme Court of Canada justices) who disagree with me, I must still be missing something painfully obvious.

    As long as we are beating this particular dead horse, perhaps I will recycle below part of a comment I wrote in the fall of 2013 (it never saw the light of day for unrelated reasons):

    The Supreme Court of Canada was historically a mere creature of statute. Section 101 of the Constitution Act allows, but does not require, the federal government to create a “General Court of Appeals for Canada,” pursuant to which the Supreme Court was created a decade or so after Confederation. It took more than a century for the Supreme Court to make it into the Constitution: the 1982 patriation added a provision requiring consent of the federal government and all provinces for any “amendment to the Constitution of Canada in relation to […] the composition of the Supreme Court of Canada,” while amendments relating to any other aspect of the Supreme Court would follow the usual 7/50 formula.

    But adding the Supreme Court to the amending formula does not presuppose that the Constitution as it stands in fact has anything to say about the Supreme Court. In fact, one could reasonably argue that the 1982 Constitution confirmed that any constitutionalization of the Court’s composition could not happen without unanimous consent, and that until such consent is obtained the federal government remains free to change the composition of the Supreme Court by amending the Act. Both the 1987 Meech Lake Accord and the 1992 Charlottetown Accord were, after all, intended to entrench both the existence and the composition of the Supreme Court in the Constitution, as had been originally proposed in the 1971 Victoria Charter – including the requirement that three of the nine judges be drawn from lawyers and judges trained in civil law. It would be passing strange, to say the least, were we now to conclude that those amendments were superfluous all along.

    The proposed legal text of these amendments is interesting as well, as it precisely reflects the interpretation of the Act on which the Government has relied in support of Justice Nadon’s nomination. The provisions dealing with qualifications of Supreme Court judges, virtually identical in their 1971, 1987, and 1992 iterations, read as follows:

    “Any person may be appointed a judge of the Supreme Court of Canada who, after having admitted to the bar of any province or territory, has, for a total of at least ten years, been a judge of any courts in Canada or a member of the bar of any province or territory.

    At least three judges of the Supreme Court of Canada shall be appointed from among persons who, after having been admitted to the bar of Quebec, have, for a total of at least ten years, been judges of any court of Quebec or of any court established by the Parliament of Canada, or members of the bar of Quebec.”

    Were these amendments in effect, there would be no question of Justice Nadon’s qualifications. Instead, the constitutional status of the Supreme Court remains ill-defined, and its composition governed by statutory language that has undergone no significant change in well over a century.

    But any lacunas in the text cannot justify a reductio ad absurdum reading of the Supreme Court Act. In our system, the federal executive has the constitutional right and responsibility to appoint judges of the superior, federal, and appellate courts. The courts should not rush to constrain that power without an express statutory or constitutional basis, especially where such constraints are both asymmetric and lacking any rational connection to the ostensible goal.

    The primary, if not only, justification offered is that choosing from only current Quebec bar members or judges ensures that Quebec candidates for the Supreme Court are well versed in civil law. Such an argument, in my view, does not withstand even the most cursory scrutiny. For example, I have been a proud member of the Quebec bar since 2001, though I have practised for virtually all that time in Ontario, and almost exclusively as a member of the Ontario bar. Flattering as it may be to think that I am qualified in the eyes of some to be appointed to one of Quebec’s seats on the Supreme Court, I am not waiting for the phone to ring.

    As an aside, because of the unanimous provincial consent required for changing the “composition” of the Supreme Court, one of the many perverse consequences of the Nadon decision was that Quebec is now stuck with section 6 of the Supreme Court Act indefinitely. It occurred to me at the time that Quebec could do an end-run around that constraint by simply changing its legislation governing bar membership, but I never seriously thought it would happen. Once again, that shows how little I know…

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