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.