This photo is from a file from the Wikimedia Commons.

On Wednesday, January 15, 2014, the Supreme Court of Canada is undertaking a rather interesting exercise. The Supreme Court justices will be hearing arguments from the Attorneys General of Canada, Quebec and Ontario as well as from certain intervenors in the Reference re Sections 5 and 6 of the Supreme Court Act which will determine whether Mr. Justice Marc Nadon has been properly appointed to sit amongst them.

The legislative provisions

At the heart of the appeal is the question as to what the purpose of the requirement of section 6 of the Supreme Court Act that three of the justices be “from among the justices of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province”.

Section 6 must be read in conjunction with section 5’s requirement, namely, that [a]ny person may be appointed a judge [of the Supreme Court of Canada] 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.

These provisions must also be considered in light of the mandatory provisions of section 41(d) of the Constitution Act, 1982 that only permit amendments to the Constitution of Canada respecting the “composition” of the Court with unanimous consent of all provinces (so necessarily including Quebec, the only province singled out by the Supreme Court Act).

Canada’s position

The Attorney General of Canada has focused on the words of section 5, namely, a person may be appointed “who is or has been a barrister or advocate of at least ten years standing at the bar of a province”. They take a more literalist approach to section 5 and argue that any person who is or had been an advocate of the Province of Quebec for at least ten years is eligible to be appointed.

Quebec’s position

The Attorney General of Quebec takes a more purposive approach. Quebec argues that the purpose of section 6’s requirement that three of the Court’s justices be appointed from the Court of Appeal or Superior Court of Quebec or from the advocates of the Province of Quebec is to ensure that Quebec’s civil law traditions are properly represented in the Supreme Court (“…l’objet particulier de l’article 6 est de garantir la presence de juges issus du regime civiliste propre au Quebec” – para. 106, Factum of A.G.Quebec). Quebec argues that Canada cannot now amend the language of section 6 without the consent of all provinces.

My take – for what it is worth

Mr. Justice Nadon was appointed to the Federal Court in 1990, a number of months before the current Civil Code of Quebec came into force. He had previously practised under the regime of the old Civil Code, a Code that had been adopted in 1800’s. Accordingly, while he may have reviewed the current Civil Code and is no doubt aware of how a civil law tradition differs from a common law tradition, he is not familiar and has never been familiar on a working basis with the current Civil Code of Quebec. The Civil Code is a fundamental law of Quebec. It is part of what makes Quebec different and distinct. Its existence (and its separate interpretation) is essential to Canada’s bijuridical nature — as important, one might argue, as Canada’s bilingual character. I hope that the Court gives life to what I believe was the intent behind section 6 of the Supreme Court Act and later behind the protections afforded by s. 41(d) of the Constitution Act, 1982. Whatever the result, the Court’s determination on this matter will be a fascinating exercise in constitutional self-analysis.

Constitutionally yours,

Arthur Grant