Analysis of Reference re Supreme Court Act: Th e Implied Currency Requirement for Quebec Seat Appointees to the Supreme Court Daryl Barton* Introduction ther, the number of Supreme Court judges was increased from the initial six to seven in 1927; Th e Supreme Court of Canada, in a 6-1 judg- when increased to nine in 1949, the number ment in March 2014, ruled that an appointee to reserved for Quebec appointees increased from one of the three Quebec seats on the Supreme two to three. Th e core sections of the Act relevant Court must be either a current Quebec Supe- to eligibility for appointment to the Supreme rior Court judge or a current Quebec lawyer of Court are sections 5 and 6: at least ten years’ standing. Reference re Supreme 1 Court Act, ss. 5 and 6 [Reference] determined 5. Any person may be appointed a judge who that the phrase “from among” in section 6 of the is or has been a judge of a superior court of a 2 Supreme Court Act [Act] implies that Supreme province or a barrister or advocate of at least Court appointees to the reserved Quebec seats ten years standing at the bar of a province. must be current members of one of the desig- nated Quebec legal institutions. Th e judgment 6. At least three of the judges shall be appointed also affi rmed that any change to the composition from among the judges of the Court of Appeal of the Supreme Court, including the eligibility or of the Superior Court of the Province of Quebec or from among the advocates of that conditions of appointees, is constitutionally pro- Province.4 tected.3 A synthesis of textual, contextual, and purposive analysis is hereinaft er used to review the Reference. Textual analysis Background Th e preposition “among” is commonly used to designate inclusion of one or more particulars Since the Act was established in 1875, it has in a class. Typically, both the particulars and the required that a minimum number of appointees class are assumed to currently exist unless indi- to the Supreme Court of Canada have experience cated or implicated to be otherwise. Ascription of with one of three specifi ed Quebec legal institu- implied current tense (“currency”) to the phrase tions. Th at stipulation refl ects recognition that, “from among” is common both in legal writing since Confederation, Quebec has used a system and in less formal uses of language. To cite an of law derived from the French civil code that is example from a Canadian law statute, consider substantially diff erent from the British common Nunavut’s Legislative Assembly and Executive law system adopted by the other provinces. Fur- Council Act: Constitutional Forum constitutionnel 19 3. Th e Legislative Assembly consists of 22 among” the LLBs having at least fi ve years of members, each elected to represent one teaching experience at Canadian law schools, or constituency in accordance with the Nunavut where appointees to a provincial sports hall of Elections Act. fame must be selected “from among” that prov- 60. (1) Th e Executive Council of Nunavut is ince’s athletes, former (that is, presently inactive) composed of the following members: members of the referenced classes of Canadian university law teachers and provincial athletes (a) a Premier chosen from among the members are impliedly, yet unambiguously, eligible.7 of the Legislative Assembly and appointed by the Commissioner on the recommendation of Unlike these fi ve examples in which the evi- the Legislative Assembly . .5 dently unambiguous meaning of the sentence containing “from among” can be accurately In this context, no apparent ambiguity results interpreted solely from the text of that sentence, in section 60(1)(a) from omitting the word “cur- section 6 cannot be accurately interpreted as rent” before “members” because “members” an isolated sentence because its fi rst use of the clearly implies current members. Although sec- phrase “the judges” refers to another section. tion 3 to some extent explicates the implied cur- Th erefore, a purely textual interpretation of sec- rency of members, absent section 3 the meaning tion 6 is impractical. of “from among” in section 60(1)(a) is satisfacto- rily clear because it is commonly understood that membership in a legislative assembly changes Contextual analysis regularly and includes only members selected in the most recent election. Expanding the scope of the analysis of section Another representatively unambiguous use 6 to include contextual considerations involves of the phrase “from among” in a statute involving examination of other sections and earlier ver- implied currency occurs in the federal Competi- sions of the Act. Examining the relevant sections tion Tribunal Act: in the original text and in the 1886 amended ver- sion is instructive. Th e original 1875 Act states 3. (2) Th e Tribunal shall consist of the eligibility requirements for all Supreme Court appointments in a single section using only one (a) not more than six members to be appointed sentence. from among the judges of the Federal Court by the Governor in Council on the 4. Her majesty may appoint . one person, who 6 recommendation of the Minister of Justice . is, or has been, a Judge of one of the Superior Provided no other sections of this legislation Courts in any of the Provinces forming part of the Dominion of Canada, or who is a Barrister create contextual ambiguity, “from among the or Advocate of at least ten years’ standing at the judges” may be interpreted with near certainty Bar of any one of the said Provinces, to be Chief as referring exclusively to the class of current Justice of the said Court, and fi ve persons who judges. are, or have been, respectively, Judges of one of the said Superior Courts, or who are Barristers Similarly, informal use of “from among” to or Advocates of at least ten years’ standing impliedly refer to only current members of the at the Bar of one of the said Provinces, to be referenced class is common. A baseball team Puisne Judges of the said Court, two of whom manager who selects a starting pitcher “from at least shall be taken from among the Judges of among” the team’s pitchers has only the pitchers the Superior Court, or Court of Queen’s Bench, on the current team roster to choose from. or the Barristers or Advocates of the Province of Quebec.8 Nonetheless, using “from among” to impliedly refer to both current and former mem- Section 4 of the 1875 Act contains two eli- bers of the referenced class is hardly rare. Where gibility conditions for Supreme Court appoint- a law faculty selects a new faculty member “from ments: (1) membership in specifi ed institutions, 20 Volume 24, Number 1, 2015 one of which includes a minimum experience supersedes the presumed common sense of the proviso (institution condition), and (2) current original. Because the wording of section 5 of the or former membership status (status condition). current version of the Act is a mere textual revi- Section 4 states a general rule for applying these sion of the corresponding 1886 statute, “ten years’ two conditions to Supreme Court appointments, standing” continues to mean, per section 5, that followed by a particular rule for applying them to a former lawyer having ten years of nonconsecu- Quebec seat appointees. tive bar membership is eligible for appointment. In section 4 of the original version, and in Th e original ambiguity of the phrase “from sections 5 and 6 of the current version, the phrase among” in reference to Quebec seat eligibil- “from among” is not the only potentially ambig- ity was not altered by the 1886 amendments, uous wording. Also ambiguous, and doubly and remains in the current version’s text. Th at so in the original section 4, is the word “stand- this ambiguity exists was disputed in both the ing” in the phrase “of at least ten years’ stand- majority judgment and the minority dissent. ing.” Assuming “standing” means “duration,” it is Although the majority and minority gave section uncertain in the 1875 version whether the dura- 6 incompatible interpretations, they described tion of at least ten years must be (1) consecutive its meaning as, respectively, “plain” and “abun- or merely cumulative, and (2) current exclusively dantly clear”.10 On the contrary, that the intended of the former. Consider the 1886 amendments to meaning of section 6 in the current 1985 ver- section 4: sion is ambiguous has been amply attested to by the opposing interpretations off ered by various 4.(2) Any person may be appointed a judge experts.11 of the court who is or has been a judge of a superior court of any of the Provinces of In section 4 of the original 1875 version, the Canada, or a barrister or advocate of at least general rule clearly states that a lawyer appointee ten years’ standing at the bar of any of the said as a puisne judge not representing Quebec must Provinces. be a current lawyer (“are Barristers or Advo- cates”). As a result, the issue of whether the par- 4.(3) Two at least of the judges of the court shall be appointed from among the judges of ticular rule phrase “from among” implies cur- the Court of Queen’s Bench, or of the Superior rency for Quebec seat lawyer appointees does not Court, or the barristers or advocates of arise in the 1875 version because the general rule the Province of Quebec.9 has already established that currency is required. Th e 1886 amendment to the general rule changes Although perhaps diminishing the original lawyer appointee eligibility for non-Quebec seats precision of the word “standing”, section 4(2) to include both former and current lawyers (“is resolves the second uncertainty by changing the or has been .