Judicial Musical Chairs II: the Constitutionality of Robert Mainville’s Appointment to the Quebec Court of Appeal
The legality of the appointment of Mainville J.A. to the Quebec Court of Appeal from the Federal Court of Appeal has been challenged. Several jurists have weighed in on the question: Hugo Cyr, Maxime St-Hilaire and Robert Décary* all take the view that a federal court judge cannot lawfully be appointed to a Quebec Court (update: though to be fair to Décary, his ire is really directed at the Supreme Court!). I disagree: the text of the Constitution Act 1867 is not pellucid; the better reading of the text and relevant history is that Mainville J.A.’s appointment was constitutional.
There are strong parallels between the situation facing the Canadian courts in this case and the Noel Canning case recently decided by the Supreme Court of the United States. There, historical practice seemed to contradict the text, but nonetheless ultimately won out. In the Mainville case, the constitutional text is less clear, but historical practice is unambiguous.
Sections 96-100 of the Constitution Act, 1867 provide for courts of inherent jurisdiction, the successors to what is now the English High Court. These are usually termed “Section 96 Courts” and are federally appointed. Section 98 provides that judges of the Quebec courts “shall be selected from the bar of that province”. Section 97 provides for appointment to the courts of the common-law provinces.
Some have read s. 98 as requiring that Quebec judges must be current members of the bar to be eligible for appointment. But the text is not so clear. On its face, there is no requirement of membership or of current membership. Rather, the phrase “from the bar of that province” could plausibly be read as referring to current and past members. Interpreted generously, the “bar” could include retired members, or those who have given up their bar membership temporarily to go into politics or to serve in a judicial or quasi-judicial function.
Consider the following example. The phrase “professors of the university” could be taken as meaning those professors currently employed by the university, but it could equally include emeritus or retired professors. The context is key. If we want to know who the “professors of the university” are for the purposes of a vote on whether to award tenure to a colleague, plainly only those currently employed would be eligible to vote. But if we wanted to know because a vote had to be taken on changes to the university pension scheme, retired professors would plainly be included. It all depends on the context.
The understanding reflected in s. 3 of the Judges Act, which governs appointment to s. 96 courts, is that judges are eligible to appointment to other judicial offices; they remain part of the “bar” for the purposes of s. 98. Lawyers with 10 years’ experience are eligible, as is anyone who “has, for an aggregate of at least ten years,
(i) been a barrister or advocate at the bar of any province, and
(ii) after becoming a barrister or advocate at the bar of any province, exercised powers and performed duties and functions of a judicial nature on a full-time basis in respect of a position held pursuant to a law of Canada or a province.
This has been the law on judicial appointments for decades. There have been dozens of appointments from provincial courts to s. 97 and s. 98 courts. One current member of the Supreme Court of Canada, Abella J., travelled this route. More recently, Robertson J.A. moved from the Federal Court of Appeal to the New Brunswick Court of Appeal. If Mainville J.A.’s appointment is unconstitutional, s. 3 of the Judges Act is unconstitutional in whole or in part and dozens of appointments, including those of several sitting judges, were invalid. Given that the text of the constitution does not unambiguously require current bar membership, history should prevail.
Those who think otherwise have pointed to the Supreme Court’s recent decision in the Nadon Reference: Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. There, the issue was the validity of the appointment of a federal court judge to one of the three Quebec seats on the Supreme Court of Canada. Indeed, the Court held that s. 6 of the Supreme Court Act made current membership of the Quebec judiciary or the Quebec bar a condition precedent to appointment. But to contend that the reasoning there extends to the Mainville case is to over-read the Nadon Reference.
The conclusion in that case was based not just on the text of s. 6, but the text of its companion provision, s. 5: “s. 5 establishes general eligibility requirements for a broad pool of persons eligible for appointment to the Supreme Court of Canada [but] s. 6 leads to a more restrictive interpretation of the eligibility requirements in order to give effect to the historical compromise aimed at protecting Quebec’s legal traditions and social values” (para. 69, see also paras. 37, 45, 59). The Court looked to the purpose of s. 6, but only to bolster its textual conclusion (para. 46) that Parliament had chosen to draw lines as to who is eligible and who is not. The following passage (para. 58) is telling:
Parliament could have adopted different criteria to achieve the twofold objectives of s. 6 — for instance by requiring a qualitative assessment of a candidate’s expertise in Quebec’s civil law and legal traditions — but instead it chose to advance the provision’s objectives by specifying objective criteria for appointment to one of the Quebec seats on the Court. In the final analysis, lawmakers must draw lines. The criteria chosen by Parliament might not achieve perfection, but they do serve to advance the provision’s purpose…
The inference from the text and purpose that the Court made in the Nadon Reference is simply not open here. In particular, s. 6 seemed to exclude the federal courts by implication: it mentioned the Quebec Superior Court and Quebec Court of Appeal but no other body. No negative implication is warranted in this case. There are no comparable “objective criteria”.
A far more significant aspect of the Nadon Reference is the Supreme Court’s conclusion that s. 5 of the Supreme Court Act includes past bar membership: “the inclusion of former advocates of at least 10 years standing at the bar is consistent with the purpose of s. 5, which is to ensure that appointees to the Court have adequate legal experience” (at para. 33). The same should go for s. 98, which read purposively ensures that appointees to the Quebec court have adequate civil-law experience. Evidently, the “bar” for the purposes of s. 98 would not include lawyers trained outside Quebec, thereby ensuring that judges of the Quebec courts have expertise in the civil law.
And there is no reason to think a Federal Court of Appeal judge trained in Quebec lacks civil law expertise. In the Nadon Reference, the Court said as much, commenting at para. 60:
In reaching this conclusion, we do not overlook or in any way minimize the civil law expertise of judges of the Federal Court and Federal Court of Appeal. For instance, s. 5.4 of the Federal Courts Act, R.S.C. 1985, c. F-7, in many ways reflects s. 6 of the Supreme Court Act by requiring that a minimum number of judges on each court be drawn from Quebec institutions. The role of Quebec judges on the federal courts is a vital one.
No violence is done to the purpose of s. 98 of the Constitution Act, 1867 by naming a federal court judge to the Quebec Court of Appeal. Indeed, if s. 98 is read literally, any current member of the Quebec bar — including freshly minted lawyers — would be eligible for appointment as a judge but an experienced member of the federal courts would not be. This would be odd.
One argument made by those in favour of the legality of Mainville’s appointment is that, read literally, s. 98 bars appointment from the Superior Court to the Court of Appeal. After all, judges of the superior courts are not current members of the bar. So, the argument goes, they could not be appointed to the Court of Appeal if s. 98 is to be read literally.
This is wrong, but the explanation reveals another argument that supports the Mainville appointment.
Both the superior courts and courts of appeal are s. 96 courts. In Ontario, this is made explicit by s. 4(2) of the Courts of Justice Act: “A judge of the Superior Court of Justice is, by virtue of his or her office, a judge of the Court of Appeal and has all the jurisdiction, power and authority of a judge of the Court of Appeal”. That there is no equivalent provision in Quebec does not undermine the point: judges of the superior courts and courts of appeal are members of the same body. Their reassignment within that body is not touched at all by s. 98. Inherent jurisdiction is shared between these courts by statute or delegated legislation.
Moreover, something similar can be said about the federal courts. They are a purely statutory creation. Express language in the Federal Courts Act is required to oust the inherent jurisdiction of the superior courts. But it can be said in a broad sense that authority is shared by statute between the federal courts and the s. 96 courts in the same way that authority is shared between the superior courts and courts of appeal. Indeed, the federal courts are provided for by s. 101 of the Constitution Act, in the same section of the document as s. 98, under the heading “Judicature”. If anything, this surrounding context supports the Mainville appointment, suggesting that transfers between s. 101 courts and s. 96 courts are permissible.
None of this is to suggest that the challenge to the Mainville appointment is not serious. It most certainly is. But my view is that, ultimately, it will fail.
* This article appeared in La Presse but I cannot locate an online version. Update: here you go.
This content has been updated on July 28, 2014 at 14:07.