Last week, I explained why the Barreau, Québec’s law society, may ― or may not ― have in effect 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. Unlike its predecessor provision, section 139 of the Barreau’s new Code of Professional Conduct of Lawyers, which came into force about one month ago, does not bar all judges from remaining members, but only those who sit on of the courts named in Québec’s Courts of Justice Act and full-time municipal judges. New judges of the federal courts appointed from Québec need not resign their membership in the Barreau, and could possibly ― depending just what the Supreme Court meant in l’Affaire Nadon ― be appointed to the Supreme Court, pursuant to s. 6 of the Supreme Court Act, as “advocates of tat province.” Beyond the question of whether the change in the Barreau’s Code of Professional Conduct can have that effect, which I explored in that post, I also have serious questions about the way in which this potentially momentous change ― reversing a constitutional decision of the Supreme Court, no less ― was made.
First of all, I seriously wonder whether this change was deliberate, and whether the drafters of the new Code of Professional Conduct realized what they were doing when they decided to re-word the old rule on the incompatibility of judicial office with the practice of law (s. 4.01.01 of the now-repealed Code of ethics of advocates). The reason I’m even asking this seemingly nutty question is that “Comparative Table” setting out the provisions of the new Code in parallel with their predecessors, prepared by the Barreau, does not highlight s. 139 as being among the “principal changes” (see p. 47 of the table). Does the Barreau actually think the new provision is the same as the old? 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, that is just not the case.
Now if, against appearances but in accordance with the presumption that a group lawyers should understand the legal effects of the provisions it is responsible for drafting, this change was indeed deliberate, the following additional questions come to mind. Who suggested this change? Although Québec’s chattering classes seemed delighted by the Supreme Court’s opinion in l’Affaire Nadon, more than a few people were not so happy, and it would be interesting to know if one or several of such dissenters were behind this change. A related question is, what explanations, if any, were given for this change? How was it sold to the Barreau’s General Council, which is responsible for the adoption of the Code of Ethics? For that matter, was it even discussed there? All those questions, ultimately, tend to just one: was the change a deliberate response, by the Barreau itself or perhaps by a quietly enterprising draftsman, to the Supreme Court’s opinion in l’Affaire Nadon? Or is its possible effect on that opinion actually an accident?
I wanted to ask these questions publicly because, as I said in my last post, I find it more than a bit disturbing, that such a potentially significant change has been made without attracting much attention ― and perhaps even accidentally. Of course, I would have preferred to be able to publish the Barreau’s answers. As soon as I published my post last Thursday, I wrote to the Barreau’s media spokesperson, asking these questions, which is why I waited before posting this. However, I still have not received an answer, not even a “no comment.” I will not speculate about why that may be. If someone from the Barreau wants to get in touch, I would be happy to let my readers know what it has to say.
Double Aspect 
Léonid, while I don’t disagree with you, I would add that I also don’t find the amendment nearly as disturbing as the Nadon decision itself. The Supreme Court, in my very respectful opinion, created a constitutional and policy mess on multiple levels. No future government is likely to spend political capital making any change to the Supreme Court Act – say, for example, by requiring that all future appointees be functionally bilingual – as it will face the inevitable challenge that it requires unanimous provincial consent “Composition” is in the eye of the beholder.
Arguably the amendment to the Code of Professional Conduct is, in part, a way of saving the Court from its own folly. Rather than hold the québécité criteria for the Court hostage to the political minefield of constitutional change, Quebec has asserted the right to define who is qualified to be appointed to one of its seats on the Court – which, in my view, should be a matter for Quebec to decide anyway. If I were of a conspiratorial mindset, I might even wonder if this was Quebec’s intention from the very beginning, when it supported the Nadon challenge.
Alex
I’m not saying that this change is a bad thing. I agree that it is saving the court ― and the rest of us ― from the court’s own folly, If, that is, it will indeed have this effect, which I wish I were more confident about. What I am saying is that if it is, indeed, Québec asserting the right to define who is qualified to represent it at the Supreme Court, I think that we are entitled to know this. It’s the flying-under-the-radar nature of this change that disturbs me ― and, even more so, the possibility, which I do not believe we can eliminate based on the information we have ― that it is actually accidental, in that either the drafters of the new rules or at least the persons who voted for them did not understand what they were doing.