Wednesday 9 October 2013

Eligibility to sit on the Supreme Court of Canada

Mr. Justice Nadon, a member of the Federal Court of Appeal, was named -- and indeed has been sworn in -- as a judge of the Supreme Court of Canada. But a challenge has been launched to his appointment. And until the challenge is resolved, Justice Nadon will not sit as a member of the Supreme Court. The applicant in the case is a Toronto lawyer, Rocco Galati. You can read his Notice of Application to the Federal Court here (via Trevor Guy).

Will the challenge succeed? I think the ultimate question here is a close one. There is a good argument that Federal Court of Appeal judges are not eligible for appointment to the three seats reserved for judges from the province of Quebec.
Here are the relevant provisions of the Supreme Court Act:

 Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.

 At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.
When announcing Justice Nadon's appointment, the federal government took the unusual step of releasing an opinion commissioned from former Supreme Court Justice Ian Binnie.

Binnie responded to the argument that s. 5 prevents the nomination of judges from the federal courts on the basis that they are neither "judge[s] of a superior court" nor advocates currently practicing at the bar.

His response to this question is persuasive. There is no requirement of current bar membership. Section 5 does not prevent the federal government from naming to the Supreme Court judges from the Federal Court.

Yet is seems to me that the meaning of s. 6 is the crux of the matter. The most natural reading of the two sections in my view is that lawyers with 10 years' experience are eligible for appointment (s. 5). But in the case of judges from Quebec, there is the additional requirement (s. 6) that the appointee be either a member of the Superior Court or Court of Appeal or an active practitioner. Otherwise, what function does s. 6 serve?

A purposive approach underpins this conclusion. The most obvious inference is that the object of s. 6 is to ensure that the Quebec judges on the Supreme Court have current knowledge of Quebec's Civil Code. The Supreme Court can hear cases from Quebec. When it does so, it needs judges who are familiar with civil law. Judges from the common-law provinces usually will not be. Accordingly, it makes perfect sense to have additional requirements for judges from Quebec: that they either be sitting judges or active practitioners (who, even if they are not specialists in private law, have nonetheless a professional obligation to keep abreast of civil-law developments).

In the Federal Court and Federal Court of Appeal, however, questions of civil law do not arise with anything like the frequency they do in the courts of Quebec. Common sense suggests that this is the reason those courts are not listed in s. 6. Ordinarily, the inclusion of some courts should suggest the exclusion of others which are not listed. This suggestion is underpinned by the apparent purpose of s. 6. It will be interesting to see if there is any legislative history which sheds light on Parliament's purpose.

Given the relatively modest number of civil-law cases heard by the Supreme Court, s. 6 is a silly law. The Supreme Court hears many more public law cases than private law cases and public law is the bread and butter of the federal courts. To echo Binnie's pragmatic conclusion, someone like Justice Nadon is eminently qualified by his work on the federal courts for the job of Supreme Court justice and his previous experience in practice qualifies him as an "advocate[] of [the] province".

Maintaining s. 6 does not serve an obvious contemporary purpose. Yet that is a matter for Parliament to resolve (which, really, it ought to have done before nominating Justice Nadon).

Before Galati gets any judges to answer the substantive question about Justice Nadon's eligibility, he will have to jump a couple of hurdles. He will have to demonstrate that he has standing and that the decision to appoint Justice Nadon is justiciable.

I think he should get over these hurdles. Galati does not have a personal stake in the case, but on balance he satisfies the criteria for public interest standing: (1) there is a serious justiciable issue involving the interpretation of the Supreme Court Act; (2) he has a serious or genuine interest in the case and is not a mere busybody; and (3) there are no other reasonable and effective means of bringing the matter before a court (indeed, the very short period between the announcement of Justice Nadon's appointment and his appearance before a committee of parliamentarians made it difficult to raise a serious argument before the political branches). We can argue the toss on a few of these, perhaps, but given the Supreme Court's "flexible, discretionary and purposive approach to public interest standing" it is difficult to conclude that Galati does not have standing.

Justiciability might be trickier.  Of interest here is a series of cases on the Kyoto protocol, the most recent of which dismissed a challenge to an executive decision to withdraw from the treaty: Turp v. Canada (Attorney General), 2012 FC 893. I may discuss these cases -- in which various challenges to the federal government's failure to implement Kyoto were dismissed without consideration of their merits -- in more detail in a later post.

But they seem to me to be distinguishable. The power to nominate judges is probably best described as prerogative in nature. However, it has been hedged in by statute. Sections 5 and 6 provide conditions which are clear and ought to be respected. The question here is one of statutory interpretation and there would be no justification not to reach the merits of Galati's case.

Given the weakness of the standing and justiciability arguments, the federal government would be well advised to request an advisory opinion from the Supreme Court itself. Binnie's pragmatic conclusion might well attract the support of a majority of his former colleagues. If there is no reference, however, the case could take many, many months to resolve.

UPDATE: Links fixed. Some grammar too.


  1. Very interesting post Paul. The difficulty the Government will run into in my view is that Section 6 of the Act appears so clear in its wording that (I would submit) it requires no interpretation. For example, it is quite clear from the wording that a judge from the Court of Québec would not be eligible to be appointed as one of 3 Québec judges for the Court.

    While such a result does not appear advisable to me (Federal Court and Québec Court judges should be included in Section 6), that does not make Section 6 ambiguous. Section 5 deals with eligibility for appointment to the Court in general and Section 6 adds requirements to be named as one of three "Québec" judges. Hence, one can be eligible to be appointed to the Court pursuant to Section 5, but simply not count toward the Québec quota of Section 6.

    I believe there is a convincing argument that the present wording of Sections 5 & 6 lead to the result that Justice Nadon is eligible to be appointed to the Supreme Court as he meets the criteria of Section 5, but not as one of 3 "Québec" judges.

    Of course, the issue might be moot as Justice Binnie points out in his opinion given that Justice Nadon could simply step down from the Federal Court, become a member of the Québec Bar for a day and then be appointed to the Supreme Court. However, that is another matter.

  2. Thanks for the excellent comment, Karim.

    I agree that the work-around is possible, but if the appointment defeats the purpose of s. 6, surely the same could be said of the work-around.

    Another possibility is that Parliament could legislate to validate the appointment. But that statute would have to be very, very clear.

    1. Thank you Paul. That said, I would advise your readers when deciding which opinion to side with between (a) mine and (b) that of Mr. Justice Binnie, Madam Justice Charron and Professor Hogg to heavily favour the latter!

  3. I have not read Justice Binnie's opinion or any other commentary about this issue, but if section 5 means that the appointee must have had at least 10 years of experience (and does not mean that he or she has to be actively practicing at the time of the appointment), then it is reasonable to interpret section 6 to mean that from among those chosen using section 5, three must have at least 10 years of experience as advocates in Quebec (regardless of whether they are actively practicing as such at the time of their appointment). This interpretation does not undermine the point of section 6. The function of section 6 is to ensure three judges have experience practicing law in Quebec as advocates (or judges, of course), not to ensure they are actively doing do at the time they are appointed.

    1. I think that reading is also plausible. However, if the goal of s. 6 were simply to ensure that three judges hail from Québec, the language used is a strange way of achieving it. Surely the term "advocates of that province" cannot be interpreted so broadly as to swallow whole the enumeration of the Superior Court and Court of Appeal.

    2. Thank you both for such an interesting discussion. May I draw your attention to something that nobody seems to have yet put forward. I my opinion, section 30 of the Supreme Court Act confirms your interpretation of the requirements of section 6. A Quebec appointee, if he is already a sitting judge, must be a member of the Superior Court or the Court of Appeal of Quebec. He or she cannot be a member of the Federal Court. The Legislator's intent is clear and no special interpretation is needed for sections 6 and 30(2).

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  6. Binnie's opinion is quite good, given what he had to work with and the result that his client clearly wanted.

    However, on Binnie's reading of s.5, there appears to be no reason to include judges of the superior court of a province in the list of eligible appointees. The only work it could do would be to render eligible judges who had less than ten years standing as barristers or advocates prior to their appointment. Otherwise they would be meet the "former member of the bar" criterion and the inclusion of judges would be superfluous. But, as far as I know, appointment to the superior court has required ten years standing as a barrister or advocate since at least the adoption of the Supreme Court Act. So all of the judges covered by s. 5 would also meet the "former member of the bar" criterion and their specific inclusion would again be superfluous. This would be a problem, given the adage "le législateur ne parle pas pour rien dire".

    This problem disappears if we take the criteria to be: either (1) a judge or former judge of a superior court of a province, or (2) a member of the bar with ten years standing. Incidentally, this is the only grammatical reading of the French text in my view, despite Binnie's remarks on p. 4 of the opinion.

    Another question has been tickling me: assuming that Galati introduced his suit by a motion for judicial review of the PM's appointment (I haven't seen the initiating document, but I don't imagine he's seeking a declaratory judgement), then what is the appropriate standard of review? I am inclined to say that it is "a question of law of central importance to the legal system as a whole" or even a "true question of vires" but the recent trend is to granting deference to ministerial interpretation of enabling legislation.

  7. Sorry for the duplicates. I clearly had a problem posting.

  8. Finn, clearly the comment was so good it deserved to be posted multiple times!

    The deference question is a good one. I should have another post this week, once I have finished reviewing the legislative history, in which I will also touch on the deference point. Briefly, I think there's an argument that this is an Agraira-type situation in which deference would be appropriate but (a) anything touching the "composition of the SCC" is a arguably constitutional question and (b) in any event deference on questions of law does not amount to much given the SCC's recent applications of reasonableness to interpretative decisions (e.g. Mowat, Alberta (Education), etc).

  9. 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

  10. I don't agree with the view that "given the relatively modest number of civil-law cases heard by the Supreme Court, s. 6 is a silly law."
    The provision is decades old and predates the time when it was at all realistic to find bilingual appointees from outside Québec except among the francophone minority. (For that matter, appointments such as Rothstein J. suggest this continues to be a challenge.)
    Without having researched the legislative history, I would suspect that the purpose of s. 6 is not only to ensure a bench familiar with the Civil Code, but fluent in French. Whether they are criminal law specialists such as Fish or labour and administrative law specialists such as Lebel, the judges of the Québec Superior Court and Court of Appeal almost all display a high level of bilingualism, as do the senior members of the Québec Bar who would be considered for appointment.
    Obviously his personal bilingualism could qualify Nadon J. in particular, but the issue of bilingualism does explain why an appointment to the Federal Court is not included in the general qualifications in s. 6.

  11. I maybe overstated the case in describing s. 6 as "silly". If interpreted to require bilingualism, it makes very good sense indeed. Otherwise, bilingualism is protected only by convention (which in recent times has come under strain!).

    And more generally, there should of course be protection of Québec's bijuridical status. The question is whether current knowledge is necessary or, as my colleague Stéphane Beaulac suggests, "once a civiliste, always a civiliste". Section 6 is "silly" only insofar as it suggests that judges of the Federal Court (or, say, the International Court of Justice) should not be considered eligible for appointment to the SCC. I think this is probably the best reading of s. 6, but that an amendment would be justified.

  12. I can't see anything ambiguous about Section 6 of the Supreme Court Act. There is absolutely nothing in the language of the Supreme Court Act suggesting that a lawyer must be practicing at the time of appointment. They must simply have been a Quebec lawyer for 10 years. Justice Nadon has been a Quebec lawyer for 40 years. Quebec Superior Court judges must also be lawyers for 10 years -- this has never been interpreted as requiring that the candidate must be practicing at the moment of selection.

    The "le législateur ne parle pas pour rien dire" argument might be pertinent if the language of the Act were ambiguous, but it is not. In any event, the legislator is not speaking for nothing, as the Supreme Court Act does not legislate the qualifications of Superior Court judges. If other legislation ever amends the qualifications for Superior Court judges, the Supreme Court need not be altered.

    1. But if "advocates of that province" means "anyone who has practiced for 10 years" in accordance with s. 5, then the enumeration of the Superior Court and Court of Appeal is superfluous. Hence the reference to the legislator not speaking in vain. Read literally, federal court judges are excluded (along with Cour du Québec judges, municipal court judges, members of administrative tribunals, etc). This is underpinned by a consideration of s. 30 which allows for the appointment of ad hoc federal court judges from the other provinces, but not from Québec.

      If you think that federal court judges satisfy s. 6 I don't see how you can avoid concluding that s. 6 is ambiguous. Either because "advocates of that province" is ambiguous enough to include former practitioners. Or because the enumerated courts are illustrative rather than exhaustive (i.e. the enumeration is ambiguous). Either way, you have to have regard to the purpose of the section and the legislative history. Although not conclusive, the legislative history is not favourable to the appointment of federal court judges to Québec seats.

      Finally, s. 98 of the Constitution Act, 1867 does set out qualifications for judges from Québec.