Nadon, Section 6.1, and the Attorney General’s Constitutional Argument

Late last month, the Attorney General of Canada filed its written arguments for the upcoming Nadon Reference. In an earlier post, and an article written with Professor Carissima Mathen, I addressed some of the problems with the AG’s interpretation of s. 6 of the Supreme Court Act. Neither piece, however, gets into the constitutional issues.

The Harper government proposes to amend the Supreme Court Act. Specifically, it wants to insert a provision “declaring” that s. 6 does not limit eligibility to current members of the Quebec bar, with retroactive effect. This is the proposed change:

“6.1 For greater certainty, for the purpose of section 6, a judge is from among the advocates of the Province of Québec if, at any time, they were an advocate of at least 10 years standing at the bar of that Province.”

I want to focus on whether it is constitutionally permissible for Parliament to unilaterally change the eligibility conditions for appointment to the Supreme Court of Canada.

Section 101 and the Mysterious Part V

The AG sees the answer as obvious. Section 101 of the Constitution Act, 1867 expressly gives Parliament the exclusive authority to create a “General Court of Appeal” (i.e., the Supreme Court). That entails the power to decide who is eligible to sit on it. Section 101 has never been subject to constitutional amendment, and so Parliament can enact s. 6.1 if it likes.

The sticking point is Part V of the Constitution Act, 1982. Section 41(d) states that a change to the “composition” of the Supreme Court of Canada requires agreement of all ten provinces. Under s. 42(1)(d), any other change to the Court requires the agreement of 7 provinces representing 50% of the population. Depending on how we understand Part V, these provisions may or may not present a big problem for the AG.

On one reading, these sections limit Parliament’s authority to unilaterally change the Supreme Court only to the extent that some aspect of the Supreme Court’s composition has been specifically entrenched by a constitutional amendment. Otherwise, ss. 41(d) and 42(1)(d) have no effect. Since the Supreme Court Act is an ordinary Act of Parliament, it cannot be taken to have constitutionalized any aspect of the Court’s composition. That being the case, the relevant clauses of Part V are “dormant”. Let us call this “the Hogg view”, in honour of its most famous exponent.

The Hogg view is troubling because the whole point to ss. 41(d) and 42(1)(d) was, surely, to restrain Parliament’s power to change the Supreme Court without provincial consent. They were meant to answer the concerns of the “gang of eight” – the provinces that had opposed Trudeau’s constitutional reforms. As Professor Monahan has remarked:

The underlying purpose of the amending procedure [in Part V] … is to protect the provinces from having their rights or privileges negatively affected without their consent. This includes provincial interests in the design and operation of key national institutions such as the Senate and the House of Commons. Yet, by treating section 41(d) as ineffective, the provinces are granted absolutely no protection when it comes to the Supreme Court, a key institution of the federation.

Monahan does not suggest that all aspects of the Supreme Court Act have been effectively entrenched by Part V – only “those key characteristics of the Court that implicate fundamental provincial interests”. He gives, as one example, “the requirement that three members of the Court be appointed from the bar of Quebec”.

Warren Newman has responded that, on several occasions, “attempts to entrench substantively the composition and essential characteristics of the Supreme Court in the Constitution of Canada were proposed and failed to be ratified.” That being the case, he argues, it would be strange if the Court was “prepared to read these types of provisions directly into the text of the Constitution.” Newman does not endorse the Hogg view. Rather than rely on a purposive interpretation of Part V, though, he looks to the “structural” role of a “court of last resort” in Canada’s constitutional system. As Newman points out, it was unnecessary at the time of Confederation to set out the features of a general court of appeal, or to require Parliament to create one, because Canada already had one: the Judicial Committee of the Privy Council. The Constitution Act, 1867 thus presupposes that there will be a “court of last resort”. Given the legal problems bound to arise in a federal state, it is impossible to read the Constitution as permitting the abrogation of the Supreme Court. Once appeals to the Privy Council were abolished in 1949, “the appellate jurisdiction of the Supreme Court of Canada became essential.” In effect, Newman claims, the mention of the Supreme Court in Part V “crystallized” its constitutional status, and made it impossible for Parliament to change those attributes which were “essential” to it as of 1982.

The AG implicitly supports the Hogg view. It relies on the fact that there has never been a constitutional entrenchment of any aspect of the composition of the Supreme Court. (Much of its argument dwells on the history of failed attempts to constitutionalize aspects of the Court.) According to the AG, neither s. 41(d) nor s. 42(1)(d) limit Parliament’s right to unilaterally change the “professional qualifications for appointment” to the Supreme Court.

That is a sweeping claim. Pushed to its logical extreme, it suggests that Parliament could simply do away with s. 6 altogether, and Québec would have no say in the matter. Indeed, it suggests that Parliament could unilaterally change s. 5 so that anyone could be appointed to the Supreme Court of Canada, whether they have legal training or not. Parliament could decree that, henceforth, people without any legal education are eligible to sit on the highest court in the land – a body capable of reviewing the decisions of provincial appellate courts throughout the country, and for interpreting the Constitution. That would, according to the AG, require no constitutional amendment.

Setting aside the undesirability of such a state of affairs, the AG’s interpretation of Part V strikes me as implausibly narrow. It is inconceivable that Parliament could unilaterally decide that the Court should have 15 members rather than 9 – that it could engage in the sort of “court-stacking” threatened by Roosevelt in the New Deal era. Likewise, it seems implausible to suppose that Parliament could unilaterally do away with a feature of the Supreme Court that goes to the heart of its claim of authority: its expertise in civil and common law. The AG is quite right, of course, that there is nothing that expressly says this in the Constitution Act 1982, or anywhere else. It is simply a background feature of our constitutional order, without which our system of constitutional arrangements would simply cease to make sense.

Part V Entrenches Ends, Not Means

Professor Paul Daly, in his submissions to the Senate Committee of Legal and Constitutional Affairs, seems to take this to be the end of the matter: the proposed declaratory provision purports to change the eligibility criteria of s. 6, and so would be invalid. (A similar position may have been staked out in Professor John Whyte’s op-ed.) I am not so sure.

The reasons for my uncertainty go back to the questions Professor Mathen and I raised about the purpose animating s. 6. As we have argued, there is some reason to think that the section was designed to do more than guarantee civil law expertise on the Supreme Court – Parliament could have achieved that aim without requiring three judges from Quebec. There is room to argue that s. 6 was also intended to provide special assurance to the Quebec bench and bar that the Court would have that expertise, and would be sensitive to Quebec’s legal traditions.

Let us suppose for the sake of argument, then, that s. 6 has two aims – expertise and assurance – considering each one in turn. The proposed s. 6.1 does not change the fact that three judges must have had 10 years standing as members of the Quebec bar. The declaratory provision would change only the requirement that, at the time of appointment, they be current members. This does not obviously strip away the guarantee of civil law expertise provided by the existing s. 6. If it did, we would have to assume that section 5 of the Supreme Court Act, which allows Supreme Court judges to be drawn from both past and current members of the bar, also fails as a guarantee of expertise in the common law. Yet no one doubts that s. 5’s purpose is to ensure expertise on the high court.

Does it matter that s. 6.1 effectively changes how civil law expertise is guaranteed? I don’t think so. Even if we accept Monahan’s and Newman’s arguments that the “essential” characteristics of the Supreme Court have been effectively constitutionalized by Part V, there is no reason to describe them in the concretized terms of the Supreme Court Act. Here, I take to heart Newman’s (and the AG’s) observation that attempts to entrench specific professional qualifications have all failed. Like Newman, I cannot reconcile Monahan’s conclusion, that the precise terms of ss. 5 and 6 of the Supreme Court Act have been constitutionalized, with the reality of Canada’s constitutional history. The former ignores too much. And it strikes me as an unnecessary move to make. Rather than say that the precise means by which the Supreme Court Act guarantees legal expertise is constitutionally entrenched, we could more easily (and defensibly) say that Part V requires only that Parliament create some form of legislation capable of achieving that result. Thus, it could not (as the AG suggests) simply strip away any and all professional qualifications for Supreme Court Justices. It could, however, protect the requirement of professional qualifications in different ways – e.g., by changing s. 5 so that it explicitly requires “legal expertise” rather than 10 years standing at the bar. Within certain bounds, Parliament would have a degree of leeway.

This approach does three things. First, it pays due heed to Monahan’s point that Part V must have some content. Second, it recognizes Newman’s point that some sort of “court of last resort” is essential in our system of government, but that it is less essential to have a court with one set of specific features rather than another – e.g., whether it is the Privy Council or the Supreme Court of Canada. Finally, my approach takes into account that there has been no express constitutional entrenchment of any part of the Supreme Court Act, and no amendment of s. 101 of the Constitution Act, 1867. There is, therefore, no reason to conclude that Parliament’s constitutional authority to ‘tinker’ with the Supreme Court of Canada has been foreclosed insofar as it achieves a broad set of ends.

There is nothing radical in this view. As I have argued here and here, the Constitution frequently prescribes a goal or baseline and then leaves it to the legislature to determine how best to achieve it. Indeed, several decisions in the McLachlin Court era have emphasized that, where one of several remedial approaches would resolve a constitutional infirmity, the courts should defer to the one preferred by the legislature (or, where applicable, executive branch). It is the responsibility of the courts, as guardians of the Constitution, to police the baseline; it is the responsibility of the legislature, as the setter of the country’s policy agenda, to decide how best to reach that baseline.
If s. 6 of the Supreme Court Act protected only the civil law expertise of the Court, there would be no constitutional issue with s. 6.1. (Of course, there would arguably be no reason to enact the declaratory provision in that case.) But s. 6, as we have seen, may serve a second function: to provide assurance to the Quebec bench and bar. Is that an “essential” characteristic of the Supreme Court?

It is certainly plausible that, for any court to have the de facto authority it needs to effectively settle disputes, members of the public must have a minimum degree of confidence in its competence. A court can enjoy that confidence, however, without anyone providing special assurances on its behalf. Over time, the public may simply take it as given that a court will undertake its functions in a thoughtful, impartial, and informed fashion. One could argue that, even if the special assurance provided by s. 6 was necessary to give the Supreme Court a foothold in a young Confederation marked by skepticism and distrust, it is not necessary in an established constitutional and political order nearing its 150th birthday.

So I am not altogether convinced that, even taking on board my reading of s. 6’s purposes and animating aims, there is a constitutional problem with s. 6.1. But I don’t need to reach a firm conclusion here. For now, it is enough to point out that the AG’s argument fails even to acknowledge that there might be a question to ask. It says simply that no part of the Supreme Court’s composition has been constitutionalized, period, full-stop. That is a perilously brittle position. If forced to concede that any aspect of the Court is “essential” to our constitutional order, it will have no place to retreat to.

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6 Responses

  1. As Justice Nadon is wont to say: “The appeal is dismissed with costs.”

  2. D. Gussow says:

    1) Original Intent of “An Act to establish a Supreme Court, and a Court of Exchequer, for the Dominion of Canada”

    There’s no doubt that both versions (English and French) in 1875 only allowed for current advocates to be eligible for appointment (there was only one section):
    “4. Her Majesty may appoint…five persons…who are Barristers or Advocates of at least ten years’ standing at the Bar of one of the said Provinces, to be Puisne Judges…, two of whom at least shall be taken from among…the Barristers or Advocates of the Province of Quebec…”
    “4. Sa Majesté pourra nomma…comme juges puinés…cinq personnes…étant avocats de pas moins de dix ans de pratique au barreau…dont deux au moins seront pris…parmi les procureurs ou avocats de la province de Québec…”

    It looks like the policy behind the act was to have senior judges and senior advocates to be eligible for appointment. Current judges of the superior courts in the province would be eligible and current advocates of at least ten years’ standing. The additional matter was to allow superior court judges that had stepped down and become advocates again to be also eligible without having to wait another ten years.

    The English version respecting the barristers and advocates was surprisingly changed to “who is or has been” by the editors of the Revised Statutes of 1886 to what we basically have now (in two sections). And the French version although sometimes ambiguous can still be construed, in both sections 5 and 6, that one currently has to be an advocate (if one is not currently a member of the bar one is not an advocate) and has continued the original intent that was enacted in 1875. (At least before Royal Assent to Bill C-4.)

    The point to make about this is that Bill C-4 (if Division 19 is not found unconstitutional) makes a substantive change, especially with “il demeure entendu”.

    2) Exchequer Court & Federal Court

    When the Exchequer Court was split off from the Supreme Court in the late 1800’s no provision was made to allow the Exchequer Court judges to be eligible to be Supreme Court judges. Neither was the Supreme Court Act amended to specifically allow for that nor has any Exchequer Court judge been appointed a Supreme Court judge. And when the Federal Court was set up no amendment was made to the Supreme Court Act to allow for a Federal Court judge to be eligible to be a judge of the Supreme Court. If that were the desired policy it would seem that the proper course would have been to specifically set it out in a Supreme Court Act amendment.

    3) Paragraphs 41(d) and 42(1)(d)

    There is the possibility that paragraphs 41(d) and 42(1)(d) tell us what has already been constitutionalized. There is the possibility that nothing has been constitutionalized and paragraphs 41(d) and 42(1)(d) only come into play if one wants to constitutionalized the Supreme Court.

    Another possibility would be for the Supreme Court to give a constitutional status to a general court of appeal based on the preamble to the Constitution Act, 1867 (similar in Principle to that of the United Kingdom), and as well give a constitutional status to the federal nature of that court based on the same preamble (to be federally united). Depending upon how that status is given (see the Quebec session reference and the provincial court judges reference) it may result in the need for a constitutional amendment based on paragraphs 41(d) or 42(1)(d) to accomplish their goal of allowing a judge of the Federal Court to be appointed to the Supreme Court.

  3. m. diaen kindree says:

    To quote Nietzche, “There are no facts, only interpretations”. The sides of this conflict reveal ideas that are inadequate, some reasoning that is only power, and manipulation of language which seems to corrode the virtues of truth-telling. The Supreme Court Act is flawed and the clash of countervailing superficial arguments does not probe the deeper wound….there is no “evidence” the constitution even exists in this Act. In truth, this entire case is based on the insecurity created in the language of the Act and what it does and doesn’t say. How can one “divorce the notion of truth from the notion of translation”. (Blackburn)? Shouldn’t the SCA mirror the constructs of the Charter doctrine because it is an important judicial and historical agent? There is no reasonable way to resolve this argument because both sides have holes and are incomprehensible to the truth. I hope the SCC will table their deliberations until it can schedule an open debate, by legal constitutional experts, who are trained to examine “the content of a sentence–the issue it introduces-directs where the serious inquirer should look and how to evaluate it.” In the end, reforming the Act is necessary for the “adequacy” of facts, reality, understanding, interpretation, and the truth.

  4. m. diane kindree says:

    What continues to be the “bigger” problem is how these appointments are being made in the first place. The Supreme Court judicial selection process needs reforming to facilitate the co-operative federalism model (provincial participation) and limit the role of executive federalism in this process. How can we define our country and fully serve Canadians, as a constitutional democracy, without SCC judges being selected and elected by the provinces and the people? I have read the SC working papers (2009 & 2010) by Peter McCormick and Eric Crandall on reforming the Supreme Court and the place of the Provinces in Judicial Selection Reform (Queen’s University) respectively, and see the appointment of Justice Nadon as an opportunity to question, yet again, why these reforms have not taken place.

  5. m. diane kindree says:

    “It’s a self-defeating exercise in shining light on a very important appointment process.” (Prof. Adam Dodek)

    The Hon. Ian Binnie (C.C., Q.C.), identified in his S-C published letter, that the “alleged dissonance”, in the text of section 5 & 6 of the SCC Act, is due to the differing meaning of the French and English text. While he admits there is a problem with the statutory interpretation of the Act he goes on to state that by applying the following pinciples or “golden rules” then his statutory interpretation is logically sound. So what are the “golden rules”? Firstly, don’t read in isolation (context) and avoid absurb results (foster continuity of the scheme and object of the Act).
    If this legal opine was the correct one, then why did the government try to amend the SCC Act in a Budget Bill? Wouldn’t a reasonable person have deemed these declaratory provisions, to the Supreme Court Act, important enough to be addressed in a “self-standing bill”? Why not undertake this legislative step before appointing Justice Nadon? The problem is not a simple case of interpretation and/or logic but a complex and serious question surrounding the democratic process and procedure governing these appointments. For far too long there has been a failure to disclose, to ordinary Canadians, how these SCC appointments are made. Instead, we are left groping in the darkness, with a process of impenetrable secrets and hidden agendas, among the shifting sands of meaning.

  6. m. diane kindree says:

    What might this reformed SCC appointment process and procedure look like?

    Please note: These at not new ideas or even my ideas, instead I am taking this opportunity to revisit the scholarship of others because they make alot of sense.

    The three guiding principles I would like to focus on to answer my question are these:
    1. co-operative federalism
    2. transparency and,
    3. public scrutiny

    Co-operative federalism:

    The AG in each province, in consultation with members of the profession, identify 3 qualified candidates. These names go before a special parliamentary selection/advisory committee of M.P.’s (7) and a short list of 8 names is created. The committee will advise the Prime Minister/Governor General of Canada and Parliament of the nominees. The P. M. and the Governor General would be tasked with selecting 3 nominees to go before parliament to face questions. The PM’s/Governor General selection(s) would be ratified by Parliament.

    Transparency and public scrutiny:

    The Provinces and Territories would have knowledge of the “legal gaps in expertise” left by retiring judges and also screen any nominated candidates who may be adverse to open public scrutiny. This would allow for participation in the democratic process while remaining at arms-length from any selections made by the PM/ Governor General and Parliament.

    I have tried to apply a few general principles, in support of a more open and undisguised approach, to the selection and election of judges to the most important position in our judicial system, the Supreme Court of Canada.

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