Wednesday, 16 October 2013

More on section 6 of the Supreme Court Act: Legislative History and Purpose

I have posted already on the controversy surrounding the nomination of Nadon J.A., a judge of the Federal Court of Appeal, to the Supreme Court of Canada. The question is whether he meets the criteria imposed by ss. 5 and 6 of the Supreme Court Act. Some have been dismissive of the case mounted by Toronto lawyer Rocco Galati, but the argument that Nadon J.A. runs afoul of ss. 5 and 6 is being taken seriously in Québec and seems (to me at least) to be plausible. It is all the more so in light of the legislative history I have consulted and which I will describe in this post.

In announcing Nadon J.A.'s nomination, the federal government released an opinion commissioned from a retired Supreme Court justice, Ian Binnie. It seems to me that the best rendition of Justice Binnie's argument (which pays little overt attention to s. 6) is the following.
Section 5 creates minimum conditions for appointment to the Supreme Court: 10 years of practice. The reference in s. 6 to "advocates of that province" must be read as "10 years of practice in the province of Québec". A judge who practiced in Québec and subsequently became a member of one of the federal courts continues to satisfy this criterion. Moreover, nominating a judge from the Federal Court of Appeal is permissible, because the enumerated courts (the Superior Court and the Court of Appeal) are simply illustrative of the type of court from which someone might be appointed. The list in s. 6 is thus not exhaustive. Given the workload of the federal courts, a judge working there is eminently qualified to sit on the Supreme Court of Canada.
This argument is certainly plausible. I suggested in my previous post that a requirement of current membership of the Barreau du Québec, or of a court which applies civil law, is equally plausible and perhaps a better fit with the purpose of s. 6. While s. 5 speaks in the past tense, s. 6 speaks in the present.

In his opinion, Justice Binnie discusses neither the purpose nor the legislative history of s. 6. I have consulted the legislative history of the adoption of the 1875 pre-cursor to today's Supreme Court Act. While not conclusive of the question, and of course to be approach with caution, it casts some doubt on Justice Binnie's argument (or, at least, my rendition of it).

The language concerning the qualifications of judges from Québec was introduced by M. Laflamme (Jacques Cartier) during the third reading of the Bill in the Commons. His amendment added, after the word “cour”: 
dont deux au moins seront choisis parmi les juges de la Cour Supérieure ou de la Cour du Banc de la Reine, ou parmi les avocats de la province de Québec.
He is reported as saying the following (the passage begins at 1028 of the report) in support of his measure: 
Il dit que cette motion n’est fait que dans le but d’exécuter le dessein qu’il avait exprimé l’autre soir – qu’il croyait, sous les *1029* circonstances particulières dans lesquelles était située la province de Québec, et son système spécial de lois, qu’ignoraient entièrement les juges des autres provinces qui pourraient être choisis pour composer cette Cour –  il était essentiel pour obtenir une bonne interprétation des lois de cette province que deux de ces juges au moins fussent choisis parmi les membres du barreau du Bas-Canada…En conséquence il croyait, et de fait il était parfaitement convaincu, qu’aucun membre dans cette Chambre et que personne dans le pays n’en douterait, que des juges choisis dans le Barreau du Bas-Canada seraient aussi aptes à administrer la justice que ceux choisis du barreau de toute autre province…Cela le frappait que comme leur instruction et leur éducation était plus selon l’équité que le droit coutumier, leur nomination bien loin d’être désavantageuse serait un avantage pour cette cour. Il croyait que cet amendement, vu la position particulière dans laquelle se trouvait Québec, ne rencontrerait pas d’objection d’aucun des membres dans cette Chambre.*
Mr. McKay Wright is reported as speaking against the amendment, apparently on the basis that there was already a convention that Québec judges « devraient toujours être choisis dans le barreau de cette province ». The amendment was adopted (at 1031). 

On the one hand, the reference to "instruction et...éducation" suggests that what is important is historical knowledge of the civil law. That is, a Québec judge should be trained in the civil law tradition, rather than necessarily conversant with current debates and developments in civil-law thought. 

On the other hand, however, the purpose of the amendment was quite clear: to ensure that Québec judges on the Supreme Court were chosen from amongst the members of the Québec bar, which implies current knowledge.

At the very least, it is clear that the language relating to "advocates of that province" was originally introduced to serve an exclusionary purpose, to narrow the pool of candidates for the Québec seats on the Supreme Court.

It is odd, in light of the historical record, to rely on this language to serve the inclusionary purpose of opening up the possibility of nominating judges of the federal courts. (One might also suggest that the reference to "advocates" -- rather than to "barristers and solicitors" as in s. 5 -- meant to exclude notaries, which further underscores the exclusionary purpose of the phrase "advocates of that province".)

Moreover, consider the title of the original act: the Supreme and Exchequer Courts Act. This act created both the Supreme Court and the first federal court. The enumeration of two courts specific to Québec must be understood in light of the historical context.

If it had been intended that the reference to the forerunners to the Superior Court and the Court of Appeal be merely illustrative, excluding the Exchequer Court was a very strange way to achieve that result. In other words, the forerunner to the modern federal courts was deliberately excluded from s. 6, an exclusion which has remained in place even after the adoption of the Federal Courts Act

In sum, the legislative history confirms:
1. That is now s. 6 was designed to respond to the special position of Québec;
2. That the language in s. 6 was designed to serve the exclusionary purpose of narrowing the potential pool of candidates; and
3. That the Exchequer Court (the forerunner to the modern federal courts) was excluded from the list of enumerated courts from which Québec judges could be appointed.
In conclusion, I should mention that the debates about the creation of a Supreme Court were very interesting indeed. Some members argued that giving the Court a general jurisdiction over all appeals might be unconstitutional (because of the provincial jurisdiction over property and civil rights); some suggested that the Court's jurisdiction be confined to public-law matters; some argued that only the Québec judges should be allowed to decide Québec civil-law cases; and some argued that the Act was unconstitutional as applied to Québec.

Source: Débats Chambre des Communs, Canada, Vol. I Session de 1875, 30 mars 1875

* My library only has the French translation of the report (which itself is a translation of the English report) but the relevant passages should be easy to find in the English version.


  1. Salut Paul,

    Thanks for the post and, this morning, for the lively discussion on the topic (b.t.w. very impressing to know that the busy young father that you are nevertheless manage to dig out 'travaux préparatoires' about the SCC Act;... you're a legend!!). I decided to join the discussion here by throwing in one of the points I expressed to you.

    Simply put, I have a huge problem with the idea that Federal Court (or FCA) judges are not 'civil law' jurists anymore... that in a way they've necessarily lost touch with civil law by them sitting as fed judges. Of course, to be clear, my argument emphasises on the 'teleological' aspect of the interpretation of ss. 5 and 6 of the SCC Act, which is interested in the 'why' we have particular conditions for the three Quebec spots at the highest instance of the land. First, for the sake of the SCC Act, if you're not a civil law jurist, you must (logically) be a common law jurist... which is obviously not the case for Nadon J., giving that he has a civil law background, practiced law in the Quebec jurisdiction mainly and was (de facto) most certainly appointed to the Federal Court as a civil law jurist. Most importantly, if the issue boils down to 'current' knowledge of civil law, I cannot accept the proposition that Federal Court judges do not do civil law in fulfilling their judicial functions. This is especially impossible to reconcile with the fact that, starting in 2001, there has been impressive efforts to recognised the bi-jural nature of this country in federal legislation (cf. Harmonization Act, 2001 and others), many of which are statutes that are indeed under the FC or FCA's jurisdictions. In a way, I would argue that this task, of adequately taking into account both civil law and common law in their decision-making (and in both official languages), make fed judges particular apt to be appointed to the SCC... much better, some would say, that some jurists / judges who have specialised in criminal law.

    The bulk of the arguments (forgetting Mr. Galati's standing, which I believe he lacks!) will probably focuss on the technical aspect of the interpretative issue around ss. 5 and 6 SCC Act. My intuition is that the case will be decided by emphasising on the 'purpose' (i.e. teleological construction), which I would think cannot but see Nadon J. as, indeed, a civil law jurist.

    Thanks again Paul for this.


    Prof. Dr. Stéphane Beaulac (Cantab.)

    Faculté de droit
    Université de Montréal

  2. A reader writes (via twitter): "Regarding your point that the Exchequer Court was created in the same statute as the SCC I believe initially there were no separate EC judges, it was in fact individual SCC judges who sat as the EC. And once there was a single separate EC judge he was an Ontarian anglophone for the first half century or so. So might be possible drafters never considered possibility a Quebec judge would be sitting on the EC - making it an oversight on their part as opposed to deliberate exclusion".

    I am happy that this has been brought to my attention and to correct the record on this one. The Exchequer Court was indeed originally to be formed of Supreme Court of Canada justices. It would probably not be fair to make anything of the exclusion of the Exchequer Court from the original list of courts. The more general point about the purpose and object of s. 6 still holds, however. A detailed review of the legislative debates demonstrates a high degree of preoccupation about the need to provide for Quebec's special position.

    There is a little bit more to the story. In 1887, the Exchequer Court was split from the Supreme Court. The legislative debates are much thinner on this occasion.

    However, it is notable that the legislation establishing the Exchequer Court as a distinct entity contained the following clause: "The practice and procedure in suits, actions and matters in the
    Exchequer Court shall, so far as they are applicable and unless it is otherwise provided for by this Act, or by general rules made in pursuance of this Act, be regulated by the practice and procedure in similar suits, actions and matters in Her Majesty's High Court of Justice in England."

    This is significant, as M. Aymot noted in the debates:

    "This is practically excluding all the lawyers in the Province of Quebec from practising before that court. We know nothing about the rules and practice in England, and would have to begin again our studies, and we have no time to do so. I hope the Minister will sec that as regards Quebec cases the rules and practice of Quebec will be applied, which I think will be nothing but fair". (p. 814)

    The Exchequer Court was, in its inception as a purely distinct entity, to be a common-law court from which civil lawyers were effectively excluded. It is unsurprising, then (though not necessarily conclusive of the point in issue in my post) that s. 6 of the Supreme Court Act was not amended to include Exchequer Court judges in 1887.

    Of course, it remains surprising that the Supreme Court Act was not amended when the Federal Courts Act was enacted in the 1970s. Had Parliament wished to include federal judges for nomination to the Québec seats, it would have been easy to justify doing so in the context of the comprehensive reforms which gave us the present federal courts.

  3. Some other matters worth highlighting.

    As a commentator on the previous post and some others have noted, s. 30(2) of the Supreme Court Act (allowing ad hoc judges to sit where others are unavailable) requires the appointment of judges from the Superior Court and Court of Appeal to fill Québec seats in Québec appeals. It is striking that the same courts are enumerated and the federal courts are again excluded.

    One might say that the failure to refer to "advocates of that province" means the phrase in s. 6 should be read more broadly. But can that much be read into the exclusion of practicing lawyers in s. 30(2)? There are good reasons not to appoint practicing lawyers as judges on an ad hoc basis, given that they may have a conflict of interest which would undermine the appearance of impartiality. If so, then s. 30(2) does not suggest that s. 6 should be read more broadly. It rather suggests that the enumeration of the Superior Court and Court of Appeal in s. 6 was no accident or oversight but calculated to achieve a particular aim.

    To this should be added the provisions of the federal Interpretation Act ( Section 5 of the SCA uses permissive language; s. 6 uses mandatory language. And the Interpretation Act requires us to interpret statutes as if they are speaking in the present. Again, the effect of these provisions is not self-evident, but my sense is that do not support the government's position.

    All of this ("on the one hand/on the other hand") proves only one thing: statutory interpretation is not an exact science. It is never possible to predict with 100% certainty how a court rule on an interpretive question.

  4. It appears that the Budget Act is seeking to have Parliament legislate the matter to validate the appointment. Does this raise plausible constitutional issues, given that the Supreme Court is subject to the amendment process (governed by unanimous consent via 41(d) for the "composition" and 7/50 via 42(1)(d) for the court in general)? As a layperson, I haven't seen any post-1982 adjudication related to the Supreme Court Act itself, save for the validity of reference questions.