Sunday, 19 January 2014

Becoming a Member of a Regulated Profession: the Barreau du Québec and the "Nadon Reference"

This week the Supreme Court of Canada heard the "Nadon Reference". The case involves, at least, whether judges from the federal courts can be appointed to the three 'Quebec seats' on the Court (see here for background).

One of the issues that has been around for a while and arose again at the oral hearing is whether a federal court judge could circumvent any limits currently imposed by the Supreme Court Act by resigning from the bench, rejoining the bar and then being appointed as an "advocate" rather than as a "judge". My view is that, depending on the circumstances, this would be unlawful: see here at p. 9, note 25.

Unfortunately, none of the provincial bar associations, including the Barreau du Québec, intervened in the case. The Court thus did not receive a detailed answer to the question about how retired judges can rejoin the bar.

On Friday, it emerged that the Quebec Branch of the Canadian Bar Association had made a motion to the Association to intervene in the case. They proposed taking the position that federal court judges are not eligible for elevation to the three 'Quebec seats'. The details are available here, from p. 42. The motion will apparently be discussed at the Association's mid-winter meeting, in mid-February. Now that the hearing has been held, it is unlikely that the Association will take a position publicly.

However, the Quebec Branch attached a detailed memorandum produced by a team of McCarthy Tétrault lawyers led by Simon Potter, a former President of the Association.

In it, they include a discussion of the rules which govern judges' re-entry to the Barreau du Québec:
First, there is no right to re-join the Barreau after ceasing to hold office as a judge. A former judge can ask to be reinstated through the same process followed by other former lawyers. The application must be made 45 days before entry to the bar is sought, and in examining the application, the executive committee will assess whether the applicant possesses “the required moral character, conduct, skills, knowledge and qualifications to be a member in good standing of the Bar”. There is no promise of automatic re-admission, especially for those who have not practiced in the civilian system for many decades.
Second, even if it could be said that judges are never refused re-admission, that is the decision of the Barreau alone. Parliament chose to rely on membership in the Barreau or the Quebec judiciary as a proxy for knowledge of civil law. If the Barreau chooses to re-admit a Federal Court judge after decades of absence, then Parliament will rely on that stamp of approval. Parliament has decided that the Barreau is best placed to measure a lawyer’s civil law knowledge (at pp. 54-55, footnotes omitted).
I have not blogged about the case for a while. My submissions to the Senate Standing Committee on Legal and Constitutional Affairs were heavily relied on by several of the interveners, and, in any event, nothing I have read or seen since composing those submissions has changed my position(s) on the questions before the Court. But the Potter memorandum is very useful and should not be consigned to the potter's ground!

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