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 . . . a barrister or advocate”). general rule to clearly include a former lawyer (barrister or advocate) as an eligible appointee. In all versions of the Act from the 1875 origi- Consequently, the fi rst uncertainty is trivialized nal to the current 1985 version, the non-Quebec if not also nullifi ed: if current status as a lawyer is seat status condition for those whose qualifying unrequired, presumably consecutive years of bar experience is as a judge is consistent: the general membership will be unimportant. rule clearly states that former judges are eligi- ble. But, from 1875 onward, the particular rule Absent the 1886 amendment, interpreting (regarding Quebec seat appointments) is not sat- the word “standing” as implying currency would isfactorily unambiguous due to use of the phrase strongly accord both with standard usage and “from among.” Th is ambiguity results from the with reasonable eligibility standards for appoint- particular rule’s explicit changing of only one of ments to the nation’s highest court. But, given the two eligibility conditions. Th e particular rule the obvious remedial intent of the amendment explicitly changes the institution condition for and the unambiguousness of textual meaning, Quebec seat appointees without unmistakably the actual legal authority of the amended statute maintaining or altering the status condition.
Constitutional Forum constitutionnel 21 Th us, although the 1886 amendments clari- Th e applicability of the section 5 status con- fi ed the status condition requirement for non- dition to section 6 is the crux of this Supreme Quebec seat appointees such that both former Court case. Th e section 5 status condition judges and former lawyers were eligible, the orig- requires that an appointee be either a current inal Act ambiguity regarding the status condition or former judge or a current or former lawyer requirement for Quebec seat appointees was per- having ten years’ standing. Th e majority judg- petuated in the 1886 version and in subsequent ment substantiated the contention that section versions. Th erefore, it persists in section 6 of the 6 changes not only the institution condition current version. but also the status condition. It highlighted the change in wording from “is or has been” in sec- Th e 1906 structural revision of the Act tion 5 to “from among” in section 6 as evidence divided section 4 into sections 5 and 6.12 Section that the eligibility conditions for Quebec seat 5 restates the general rule and section 6 restates appointees impliedly require a jurist (judge or the particular rule. In the current Act, section 6 lawyer) to be a current practitioner in one of is linked to section 5 by its explicit change to the the designated Quebec institutions, not merely institution condition.13 By stipulating that at least to have experience in one of them.15 But, given three of the Supreme Court appointees must that sections 5 and 6 are linked, the phrase “from have experience at one of three Quebec institu- among” is equally consistent with a reading of tions, section 6 unequivocally qualifi es the sec- section 6 whereby the sole function of section 6 tion 5 institution condition. Because that explicit is to distinguish the section 6 institution condi- qualifi cation links sections 5 and 6 (refl ecting the tion from that of section 5. Th at is, it is entirely connectedness of their content in the original plausible that the only purpose of section 6 is dif- 1875 version), plausible interpretation of section ferentiation of the list of institutions applicable to 6 requires reading it conjunctively with section designated Quebec appointees from among the 5: section 5 states a general rule involving two list of institutions applicable generally (in eff ect, conditions and section 6 states a particular rule to the other six appointees). On that interpreta- that changes one of both of those conditions. On tion, which is consistent with the minority dis- the minority interpretation of section 6, the only sent, the phrase “from among” functions merely function of section 6 is to change the institu- to stipulate that three of the nine judges must tion condition of section 5. Th e majority reading have experience as jurists in one of the desig- changes both the institution condition and the nated Quebec institutions, and so the section 5 status condition of section 5 such that section 6 status condition is adopted rather than changed. eligibility for Quebec seat appointment is limited Whether the ten years’ experience stipulated in to current members of the named institutions. section 5 for lawyer appointees must be at the bar of a single province or can be accumulated Regarding institution condition eligibility from more than one province, including Quebec, for lawyers, although it is possible that Quebec is unclear, especially given the weak meaning of lawyer appointees were intended to have no min- “standing” introduced in the 1886 amendments. imum experience requirement, that perspective, apart from being nonsensically imprudent, is Th us, although the phrase “from among” implausible given both the minimum experience commonly does unambiguously imply currency requirement for non-Quebec lawyer appointees when used in legislation, as in the two examples per section 5 and the historical concern of Que- cited above, in this instance it may have either bec that the Supreme Court include members the singular function of referring to Quebec with expertise in Quebec law.14 Given that sec- institutions or the dual function of additionally tion 6 contains no minimum experience require- ascribing currency, making it ambiguous. ment for lawyers, it is reasonable to conclude, as both the majority and minority did, that the Although it is true that adding the word section 5 minimum experience requirement for “current” before the words “judges” and “advo- lawyers applies to section 6. cates” in section 6 would have clarifi ed legisla-
22 Volume 24, Number 1, 2015 tive intent if current status was intended as a sec- English versions seem incompatible, perhaps tion 6 requirement, it is also true that adding the the text would have been rewritten to resolve phrase “current or former” would have clarifi ed latent ambiguity. A similar perspective regard- that Parliament instead intended that either cur- ing interpretation may have resulted in a similar rent status or former status conferred eligibility.16 lack of concern about possible subtle incongrui- Moreover, given that the phrase “from among” ties between the French and English texts arising commonly connotes currency (and assuming it from later Act consolidations.19 did circa 1875), if the enactors intended the status condition for Quebec seat appointees to include Problematically, the majority’s interpretation both former and current members of the refer- of sections 5 and 6 gives section 6 an asymmetri- enced classes (“Judges” and “Barristers or Advo- cal relationship with section 5 by making selec- cates”), then adding clarifying words would have tive use of section 5’s eligibility criteria: it adopts been especially important where “from among” the ten-year minimum bar membership require- was not being used to express implied currency. ment for lawyers but discards the stipulation that both current and former jurists are eligible. As Ultimately, textual and contextual analysis the minority stated, given that section 6 contains shows that the signifi cance of the shift in phras- no requirement for minimal experience, attrib- ing in the current English version from “is or has uting this selective relationship between the two been” in section 5 to “from among” in section 6 is sections is necessary to avoid the absurd result uncertain, as are the equivalent shift s in wording of having no minimum of legal professional expertise for Supreme Court appointees from within section 4 of the 1875 version. Given this 20 uncertainty, the text of section 6 always was and Quebec. Th e minority identifi es an additional still is ambiguous. absurdity produced by imposing a currency requirement on otherwise qualifi ed Quebec seat candidates: former Quebec lawyers of ten A possible explanation, supplemental to the years’ standing who are ineligible due to noncur- Supreme Court’s reasoning, for why the 1875 rency can regain eligibility merely by renewing enactors did not explicitly clarify the meaning their Quebec Bar membership, which does not of the English phrase “from among” is contained require active practicing of law in Quebec (not- in the memorandum commissioned from retired withstanding that present rules may not refl ect Supreme Court Justice Ian Binnie: “While it is 1875 Bar rules).21 true that the [current 1985] French text taken in isolation could be interpreted to mean cur- Given that an asymmetrical exegesis is nec- rent members, any such ambiguity is resolved essary to resolve these absurdities only if one 17 by referring to the unambiguous English text”. interprets the section 6 phrase “from among” If the 1875 French-speaking Parliamentarians, as imposing a requirement of current status on particularly those from Quebec, were satisfi ed candidates who satisfy the institution condi- (however unjustifi ably) that the French version tion, such a reading of the phrase appears to be of section 4 expressed the intended meaning of implausible. On the other hand, the presumption the statute with suffi cient clarity, they may have that a statute text is coherent and not intended assumed (reasonably or unreasonably) that any to produce absurd results is reasonably rebut- apparent incongruity between the French and table where there is either (i) clear and compel- English texts would be judicially resolved by giv- ling contextual evidence of evolution in statute ing primacy to the French version of the part of application that has superseded the gravity of text that describes the particular rule, given that textual incoherence, or (ii) clear and compelling the section 4 particular rule was included to allay purposive evidence of original legislative intent Quebec concerns and referred to only Quebec- that overrides textual illogic.22 based jurists. Had they been able to foresee the emergence of the shared meaning rule of bilin- Th e majority reasoned that section 30, which gual interpretation,18 which gives primacy to the concerns the appointment of ad hoc judges least ambiguous text wherever the French and for Supreme Court cases involving Quebec’s
Constitutional Forum constitutionnel 23 civil code, has, like section 6, been consistently Purposive analysis applied in a manner that suggests it also con- tains an implicit currency requirement, and that Given that combined textual and contextual this indicates a consistency of legislative intent analysis is inconclusive, though indicative that that strengthens the majority reading of section the absence of a section 6 currency require- 6 despite manifest absurdities.23 Th e majority ment is substantially more probable, expanding concluded that in considering section 6 within the scope of analysis to purposive interpretation the totality of the Act, the historical exclusion of yields the following hypothesis: the majority’s federal court judges as ad hoc judges for Que- interpretation that section 6 contains an implicit bec pursuant to section 30 cases, including those eligibility requirement that membership in one of with ten years’ standing as Quebec lawyers, indi- its designated institutions must be current is ulti- cates that the exclusion was deliberate, and that mately plausible only insofar as there is clear and this deliberate long-term exclusion is consistent compelling evidence circa 1875, such as from the with an interpretation of section 6 that excludes Hansard debates, that Parliament intended that federal court judges as Quebec appointees to the designated Quebec appointees must be current Supreme Court. Because a federal court judge jurists. is neither a Quebec superior court judge nor a current Quebec lawyer with ten years’ standing, Historical evidence cited by the majority if federal court judges have been consistently shows that Quebec had concern in 1875 about and deliberately excluded from ad hoc appoint- whether expertise with Quebec’s system of law ments, then, the majority reasoned, it is likely would be adequately represented on a prospec- such exclusion refl ected an enduring belief that tive federal supreme court.25 While it is obvi- they were ineligible because they were not cur- ous that amelioration of such concern required rent members of one of the three section 6 insti- stipulation in the Act that a minimum number of tutions. appointees have demonstrable experience with Quebec’s legal system, there was no compara- But even if the historical non-appointment bly compelling reason for the enactors to pre- of federal court judges as ad hoc judges for Que- sume that only current Quebec Superior Court bec cases has been deliberate, that may have been judges and current Quebec lawyers having ten merely due to the desire to avoid uncertain appli- years’ standing would possess such competence. cation of an ambiguous statute and the possibil- Granted, reasons can be surmised why the 1875 ity of a legal challenge of an appointment (which enactors, especially Quebec Members of Parlia- led to this case), and thus not a refl ection of pre- ment, might have believed it would be prudent vailing beliefs regarding eligibility. Accordingly, to exclude noncurrent Quebec jurists en masse. whether or not one concurs with the minor- For example, the possible appointment of for- ity that section 30 is irrelevant to permanent mer Quebec jurists whose professional experi- Supreme Court judge appointments,24 the his- ence as Quebec jurists ended many years earlier, torical selection of ad hoc judges does not pro- and thus whose expertise might be substantially vide reliable guidance for assessing an implied diminished, could dilute the already minority- currency requirement for section 6 appointees. status infl uence of Quebec members in a supreme Consequently, although combined textual court. Also, future legislatures might deliberately and contextual analysis is inconclusive, the sec- endorse Quebec appointees lacking fi rst-rate tion 6 interpretation whereby former Quebec qualifi cations in an attempt to minimize the jurists who satisfy the institution condition are infl uence of Quebec-based experts on Supreme eligible Quebec seat appointees is, at this level of Court judgments.26 On the other hand, it would analysis, the most plausible. have been equally reasonable for the enactors to have viewed a currency requirement for Que- bec appointees as unduly excluding exceptional candidates, especially considering that otherwise qualifi ed former jurists were deemed to be eli-
24 Volume 24, Number 1, 2015 gible appointees to the non-Quebec seats. Fur- tively implausible cannot reasonably be said to thermore, the enactors may have believed that respect the primacy of Parliament. ascertaining the suitability of noncurrent jurists would be best left to the Parliament responsi- ble for fi lling a vacancy. In summary, although imposing an additional eligibility requirement of Notes current jurist status on Quebec appointees would have been consistent with and perhaps promo- * DJ Barton is a UNB alumnus. tive in ensuring civil code expertise among 1 2014 SCC 21, [2014] 1 SCR 433 [Reference]. Supreme Court judges and Quebecer confi dence 2 RSC 1985, c s-26 [Act]. 3 Constitution Act, 1982, s 41(d), being Schedule B in that expertise, imposing that requirement was to the Canada Act 1982 (UK), 1982, c 11. not essential to achieving those goals. 4 Supra note 2. 5 S Nu 2002, c 5 [emphasis added]. Purposive interpretation, which has become 6 RSC 1985, c 19 (2nd Supp) [emphasis added]. a fundamental principle of analysis of all statutes, 7 Contra Ian Peach, “Reference re Supreme Court Act, involves consideration of the intended purpose ss 5 and 6: Expanding the Constitution of Canada” and actual consequences of the enactment, espe- (2014) 23:3 Const Forum Const 1 (evidently not cially where the statute’s literal meaning evidently having conceived of any counterexamples, asserts confl icts with its remedial function.27 Purposive that the temporal dimension of “from among” analysis invariably involves some degree of fact- invariably connotes currency: “[T]o be from based speculation about the intended function among a group, one must be a current member of that group unless the phrase “from among” is of the statute being interpreted. But unwarranted modifi ed by the phrase “those who are or who inferences from historical patterns of statute were previously” members of the group” at 2). application and mere speculation about Parlia- 8 Supreme and Exchequer Court Act, SC 1875, c 11. ment’s actual intentions do not provide factual 9 Supreme and Exchequer Courts Act, RSC 1886, c information and thus do not constitute evidence. 135. Without substantive historical evidence that a 10 Reference, supra note 1 at paras 18, 129. currency requirement for Quebec seat appoin- 11 See R v McIntosh, [1995] 1 SCR 686 (an allusion tees to the Supreme Court was intended by the to the dissent by then Justice McLachlin: “Th e enactors, purposive analysis does not support an facial ambiguity of s. 34(2) is amply attested by interpretation that ascribes it. Absent clear and the diff erent interpretations which it has been compelling evidence to the contrary, it is reason- given by diff erent courts” at para 58). Chief Justice able to conclude that, from the perspective of the McLachlin authored the majority of the judgment in Reference. 1875 Parliament, the desired assurance of ade- 12 Supreme Court Act, RSC 1906, c 139. quate civil code expertise on the Supreme Court 13 Although the Act’s fi rst section 6 use of the phrase was satisfactorily secured by stipulating mini- “the judges” refers to judge appointed as Supreme mum Quebec representation, selected from cur- Court judges pursuant to the Act, the phrase need rent and former Quebec superior court judges not be linked specifi cally to section 5 (as stated in and from current Quebec lawyers of ten years’ the Moldaver J dissent in Reference at para 122). standing. Th e meaning of the fi rst section 6 use of “the judges” is clear by referring solely to section 4(1) Wherever change to legislation requires use of the Act: “Th e court shall consist of a chief justice of the stringent constitutional amending for- to be called the Chief Justice of Canada, and eight mula, as Reference affi rmed is the case for the puisne judges.” Th e second use of “the judges” in section 6 of the Act refers to the two judicial Act’s eligibility conditions for Supreme Court institutions enumerated in section 6. appointments, it is crucial that statute ambigui- 14 Reference, supra note 1 at paras 48-56. ties be acknowledged and that purposive inter- 15 Ibid at para 41. pretations be rigorously evidence-based. Given 16 Ibid at para 127. statute interpretations of unequal plausibility, 17 Letter from the Honourable Ian Binnie, former favouring one that is, to a marked degree, rela- Supreme Court of Canada Judge, to federal Depart-
Constitutional Forum constitutionnel 25 ment of Justice (9 September 2013): “Re: Eligibility 26 See Michael Plaxton & Carissima Mathen, of Federal Court Judges For Appointment To “Purposive Interpretation, Quebec, and the Th e Supreme Court of Canada” online: Prime Supreme Court Act” (2013) 22:3 Const Forum Minister of Canada – Stephen Harper
26 Volume 24, Number 1, 2015