Reference re Supreme Court Act, ss. 5 and 6

Reference re Supreme Court Act, ss. 5 and 6
Collection
Supreme Court Judgments
Date
2014-03-21
Neutral citation
2014 SCC 21
Report
[2014] 1 SCR 433
Case number
35586
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
Canada
Subjects
Constitutional law
Courts
Notes
SCC Case Information: 35586
Decision Content
SUPREME COURT OF CANADA
Citation: Reference re Supreme Court Act , ss. 5 and 6 , 2014 SCC 21, [2014] 1 S.C.R. 433
Date: 20140321
Docket: 35586
In the Matter of a Reference by the Governor in Council concerning
sections 5 and 6 of the Supreme Court Act, R.S.C. 1985, c. S-26 ,
as set out in Order in Council P.C. 2013-1105 dated October 22, 2013
Coram: McLachlin C.J. and LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Joint Reasons:
(paras. 1 to 107):
Dissenting Reasons:
(paras. 108 to 154)
McLachlin C.J. and LeBel, Abella, Cromwell,
Karakatsanis and Wagner JJ.
Moldaver J.
Reference re Supreme Court Act, ss. 5 and 6 , 2014 SCC 21, [2014] 1 S.C.R. 433
IN THE MATTER OF a Reference by the Governor in Council concerning ss. 5 and 6 of the Supreme Court Act, R.S.C. 1985, c. S‑26 , as set out in Order in Council P.C. 2013‑1105 dated October 22, 2013
Indexed as: Reference re Supreme Court Act, ss. 5 and 6
2014 SCC 21
File No.: 35586.
2014: January 15; 2014: March 21.
Present: McLachlin C.J. and LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
reference by governor in council
Courts — Supreme Court of Canada — Judges — Eligibility requirements for appointment to Supreme Court of Canada — Requirement that three judges be appointed to Court from among judges of Court of Appeal or of Superior Court of Quebec or from among advocates of at least 10 years standing at Barreau du Québec — Whether Federal Court of Appeal judge formerly member of Barreau du Québec for more than 10 years eligible for appointment to Supreme Court of Canada — Supreme Court Act, R.S.C. 1985, c. S‑26, ss. 5 , 6 .
Constitutional law — Constitutional amendment — Composition of Supreme Court of Canada — Whether Parliament acting alone can enact legislation permitting appointment of former member of Quebec bar to Quebec position on Court — Constitution Act, 1982, s. 41 (d) — Supreme Court Act, R.S.C. 1985, c. S‑26, ss. 5.1 , 6.1 .
The Honourable Marc Nadon, a supernumerary judge of the Federal Court of Appeal and formerly a member of the Quebec bar for more than 10 years, was named a judge of the Supreme Court of Canada for the province of Quebec, pursuant to s. 6 of the Supreme Court Act (“Act ”). Section 6 specifies that at least three of the nine judges appointed to the Court “shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province”.
After the appointment of Justice Nadon was challenged before the Federal Court of Canada, the Governor General in Council referred the following questions to this Court under s. 53 of the Act :
1. Can a person who was, at any time, an advocate of at least 10 years standing at the Barreau du Québec be appointed to the Supreme Court of Canada as a member of the Supreme Court from Quebec pursuant to sections 5 and 6 of the Supreme Court Act?
2. Can Parliament enact legislation that requires that a person be or has previously been a barrister or advocate of at least 10 years standing at the bar of a province as a condition of appointment as a judge of the Supreme Court of Canada or enact the annexed declaratory provisions as set out in clauses 471 and 472 of the Bill entitled Economic Action Plan 2013 Act, No. 2 ?
Clauses 471 and 472 of the bill entitled Economic Action Plan 2013 Act, No. 2 , received Royal Assent and became ss. 5.1 and 6.1 of the Act . Sections 5.1 and 6.1 seek to make it clear that a former member of the bar may be appointed to the Court under s. 5 and that a former member of the Quebec bar is eligible for appointment under s. 6 .
Held (Moldaver J. dissenting): Question 1 is answered in the negative. Question 2 is answered in the negative with respect to the three seats reserved for Quebec and the declaratory provision set out in cl. 472. It is answered in the affirmative with respect to cl. 471.
Question 1
Per McLachlin C.J. and LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ.:
A judge of the Federal Court or Federal Court of Appeal is ineligible for appointment to the Supreme Court of Canada under s. 6 of the Act . Section 5 of the Act sets out the general eligibility requirements for appointment to the Supreme Court by creating four groups of people who are eligible for appointment: (1) current judges of a superior court of a province, including courts of appeal; (2) former judges of such a court; (3) current barristers or advocates of at least 10 years standing at the bar of a province; and (4) former barristers or advocates of at least 10 years standing. However, s. 6 narrows the pool of eligible candidates from the four groups of people who are eligible under s. 5 to two groups who are eligible under s. 6 . In addition to meeting the general requirements of s. 5 , persons appointed to the three Quebec seats under s. 6 must be current members of the Barreau du Québec, the Quebec Court of Appeal or the Superior Court of Quebec.
The plain meaning of s. 6 has remained consistent since the original version of that provision was enacted in 1875, and it has always excluded former advocates. By specifying that three judges shall be appointed “from among” the judges and advocates (i.e. members) of the identified institutions, s. 6 impliedly excludes former members of those institutions and imposes a requirement of current membership. Reading ss. 5 and 6 together, the requirement of at least 10 years standing at the bar applies to appointments from Quebec.
This textual analysis is consistent with the underlying purpose of s. 6 and reflects the historical compromise that led to the creation of the Supreme Court as a general court of appeal for Canada and as a federal and bijural institution. Section 6 seeks (i) to ensure civil law expertise and the representation of Quebec’s legal traditions and social values on the Court, and (ii) to enhance the confidence of Quebec in the Court. This interpretation is also consistent with the broader scheme of the Act for the appointment of ad hoc judges, which excludes judges of the federal courts as ad hoc judges for Quebec cases.
Per Moldaver J. (dissenting):
The eligibility criteria in s. 5 apply to all appointees, including those chosen from Quebec institutions to fill a Quebec seat. It follows that both current and former members of the Quebec bar of at least 10 years standing, and current and former judges of the Quebec superior courts, are eligible for appointment to a Quebec seat on this Court. Therefore, I answer Question 1 in the affirmative.
Sections 5 and 6 are inextricably linked. Section 5 sets out the threshold eligibility requirements to be appointed a judge of this Court. Under s. 5, both current and former members of a provincial bar of at least 10 years standing, and current and former judges of a superior court of a province, are eligible. Section 6 builds on s. 5 by requiring that for three of the seats on this Court, the candidates who meet the criteria of s. 5 must be chosen from three Quebec institutions (the Barreau du Québec, the Quebec Court of Appeal, and the Superior Court of Quebec). Section 6 does not impose any additional requirements.
To suggest that Quebec wanted to render ineligible former advocates of at least 10 years standing at the Quebec bar is to rewrite history. The object of s. 6 is, and always has been, to ensure that a specified number of this Court’s judges are trained in civil law and represent Quebec. By virtue of the fact that these seats must be filled by persons appointed from the three Quebec institutions named in s. 6, appointees will necessarily have received formal training in the civil law. The combination of this training and affiliation with one of the named Quebec institutions serves to protect Quebec’s civil law tradition and inspire Quebec’s confidence in this Court. Imposing the additional requirement of current membership at the Quebec bar does nothing to promote the underlying object of s. 6 and leads to absurd results.
The currency requirement is not supported by the text of s. 6, its context, or its legislative history. The words “from among” found in s. 6 convey no temporal meaning. They take their meaning from the surrounding context and cannot, on their own, support the contention that a person must be a current member of the bar or bench to be eligible for a Quebec seat. The words “from among” do not alter the group to which s. 6 refers — the group described in s. 5. Indeed, having regard to their historical context, the words “from among” support the view that ss. 5 and 6 are inextricably linked.
An absurdity results if s. 6 is not read in conjunction with s. 5, such that a newly‑minted member of one day’s standing at the Quebec bar would be eligible for a Quebec seat on this Court. Manifestly, s. 6 must be linked to the 10‑year eligibility requirement for members of the bar specified in s. 5. Choosing from s. 5 only those aspects of it that are convenient (i.e. the 10 year requirement) — and jettisoning those that are not (i.e. the fact that both current and former advocates of 10 years standing qualify under s. 5) — is a principle of statutory interpretation heretofore unknown.
The currency requirement finds no support in the scheme of the Act . Section 30 of the Act , which deals with the appointment of ad hoc judges, is a historic anomaly and does not assist in the interpretation of the eligibility requirements set out in ss. 5 and 6 .
Any interpretation of s. 6 that requires a former advocate of at least 10 years standing at the Quebec bar, or a former judge of the Quebec Court of Appeal or Superior Court, to rejoin the Quebec bar for a day in order to be eligible for appointment to this Court makes no practical sense. It is difficult to believe that the people of Quebec would somehow have more confidence in this candidate on Friday than they had on Thursday.
Question 2
Per McLachlin C.J. and LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ.:
The unilateral power of Parliament to “provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada”, found in s. 101 of the Constitution Act, 1867 , has been overtaken by the Supreme Court’s evolution in the structure of the Constitution, as recognized in Part V of the Constitution Act, 1982 . The Court’s constitutional status initially arose from the Court’s historical evolution into an institution whose continued existence and functioning engaged the interests of both Parliament and the provinces. The Court’s protection was then confirmed by the Constitution Act, 1982 , which reflected the understanding that the Court’s essential features formed part of the Constitution of Canada. As a result, Parliament is now required to maintain the essence of what enables the Supreme Court to perform its current role. While Parliament has the authority to enact amendments necessary for the continued maintenance of the Court, it cannot unilaterally modify the composition or other essential features of the Court.
Part V of the Constitution Act, 1982 expressly makes changes to the Supreme Court and to its composition subject to constitutional amending procedures. Changes to the composition of the Court, including its abolition, can only be made under the procedure provided for in s. 41 (d) and therefore require the unanimous consent of Parliament and the provincial legislatures. The notion of “composition” refers to ss. 4(1) , 5 and 6 of the Act , which codify the composition of and eligibility requirements for appointment to the Supreme Court as they existed in 1982. Any substantive change in relation to those eligibility requirements is an amendment to the Constitution in relation to the composition of the Supreme Court and triggers the application of Part V. Changes to the other essential features of the Court can only be made under the procedure provided for in s. 42(1) (d), which requires the consent of at least seven provinces representing, in the aggregate, at least half of the population of all the provinces. The essential features of the Court protected under s. 42(1) (d) include, at the very least, the Court’s jurisdiction as the final general court of appeal for Canada, including in matters of constitutional interpretation, and its independence.
Section 6.1 of the Act (cl. 472 of Economic Action Plan 2013 Act, No. 2 ) is ultra vires of Parliament acting alone, since it substantively changes the eligibility requirements for appointments to the Quebec seats on the Court under s. 6 . The assertion that it is a declaratory provision does not alter its import. However, s. 5.1 (cl. 471) does not alter the law as it existed in 1982 and is therefore validly enacted under s. 101 of the Constitution Act, 1867 , although it is redundant.
Per Moldaver J. (dissenting):
As both current and past advocates of at least 10 years standing at the Quebec bar are eligible for appointment to the Quebec seats on this Court, the legislation that Question 2 refers to does nothing more than restate the law as it exists. Accordingly, it is unnecessary to answer Question 2.
Cases Cited
By McLachlin C.J. and LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ.
Referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Edwards v. Attorney‑General for Canada, [1930] A.C. 124; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Sarvanis v. Canada, 2002 SCC 28, [2002] 1 S.C.R. 921; R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Re References by the Governor‑General in Council (1910), 43 S.C.R. 536, aff’d [1912] A.C. 571; Reference re The Farm Products Marketing Act, [1957] S.C.R. 198; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837; Hunt v. T&N plc, [1993] 4 S.C.R. 289; Bank of Montreal v. Metropolitan Investigation & Security (Canada) Ltd., [1975] 2 S.C.R. 546; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609.
By Moldaver J. (dissenting)
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Morgentaler v. The Queen, [1976] 1 S.C.R. 616.
Statutes and Regulations Cited
Act respecting the Revised Statutes of Canada, R.S.C. 1886, c. 4, s. 8.
Act to amend the Criminal Code, S.C. 1932‑33, c. 53, s. 17.
Act to amend the Exchequer Court Act, S.C. 1912, c. 21, s. 1.
Act to amend the Exchequer Court Act, S.C. 1920, c. 26, s. 1.
Act to amend the Supreme Court Act, S.C. 1918, c. 7, s. 1.
Act to amend the Supreme Court Act, S.C. 1926‑27, c. 38, s. 1.
Act to amend the Supreme Court Act, S.C. 1949 (2nd Sess.), c. 37, ss. 1, 3.
Act to amend the Supreme Court Act and to make related amendments to the Federal Court Act, S.C. 1974‑75‑76, c. 18.
Canadian Charter of Rights and Freedoms .
Constitution Act, 1867, s. 101 .
Constitution Act, 1982 , Part V, ss. 41(d), 42(1)(d), 52(1).
Courts Administration Service Act, S.C. 2002, c. 8, s. 175 .
Economic Action Plan 2013 Act, No. 2 (Bill C-4), S.C. 2013, c. 40, ss. 471 , 472 .
Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), s. 64.
Federal Courts Act, R.S.C. 1985, c. F‑7, s. 5.4 .
Legislation Revision and Consolidation Act, R.S.C. 1985, c. S‑20, s. 6 .
Règlement sur la formation continue obligatoire des avocats, R.R.Q., c. B‑1, r. 12, s. 2.
Statute of Westminster, 1931 (reprinted in R.S.C. 1985, App. II, No. 27).
Supreme and Exchequer Court Act, S.C. 1875, c. 11, s. 4.
Supreme and Exchequer Courts Act, R.S.C. 1886, c. 135, s. 4(2), (3).
Supreme Court Act, R.S.C. 1906, c. 139, ss. 5, 6.
Supreme Court Act, R.S.C. 1927, c. 35, ss. 4, 5, 6.
Supreme Court Act, R.S.C. 1985, c. S‑26, ss. 4(1) , 5 , 5.1 [ad. 2013, c. 40, s. 471], 6, 6.1 [idem, s. 472 ], 25, 29, 30 [am. 2002, c. 8, s. 175], 53.
Authors Cited
Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit constitutionnel, 5e éd. Cowansville, Qué.: Yvon Blais, 2008.
Bushnell, Ian. The Captive Court: A Study of the Supreme Court of Canada. Montréal and Kingston: McGill‑Queen’s University Press, 1992.
Bushnell, Ian. The Federal Court of Canada: A History, 1875‑1992. Toronto: University of Toronto Press, 1997.
Canada. Consensus Report on the Constitution: Charlottetown. Ottawa: Minister of Supply and Services, 1992.
Canada. Constitutional Accord: Canadian Patriation Plan. Ottawa, 1981.
Canada. House of Commons. Debates of the House of Commons of the Dominion of Canada, 2nd Sess., 3rd Parl., 1875, pp. 284, 285, 738, 739, 754, 938, 940, 972.
Canada. Legislative Assembly. Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, 3rd Sess., 8th Parl. Quebec: Hunter, Rose & Co., 1865, p. 576.
Canada. Senate. Debates of the Senate of Canada, 2nd Sess., 3rd Parl., 1875, p. 713.
Côté, Pierre‑André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp., vol. 1. Toronto: Carswell, 2007 (updated 2013, release 1).
Lederman, W. R. “Constitutional Procedure and the Reform of the Supreme Court of Canada” (1985), 26 C. de D. 195.
Monahan, Patrick J., and Byron Shaw. Constitutional Law, 4th ed. Toronto: Irwin Law, 2013.
Newman, Warren J. “The Constitutional Status of the Supreme Court of Canada” (2009), 47 S.C.L.R. (2d) 429.
Oliver, Peter. “Canada, Quebec, and Constitutional Amendment” (1999), 49 U.T.L.J. 519.
Plaxton, Michael, and Carissima Mathen. “Purposive Interpretation, Quebec, and the Supreme Court Act ” (2013), 22 Const. Forum 15.
Russell, Peter H. The Supreme Court of Canada as a Bilingual and Bicultural Institution. Ottawa: Information Canada, 1969.
Saywell, John T. The Lawmakers: Judicial Power and the Shaping of Canadian Federalism. Toronto: University of Toronto Press, 2002.
Scott, Stephen A. “Pussycat, Pussycat or Patriation and the New Constitutional Amendment Processes” (1982), 20 U.W.O. L. Rev. 247.
Scott, Stephen A. “The Canadian Constitutional Amendment Process” (1982), 45 Law & Contemp. Probs. 249.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
REFERENCE by the Governor in Council concerning ss. 5 and 6 of the Supreme Court Act, R.S.C. 1985, c. S‑26 , as set out in Order in Council P.C. 2013‑1105 dated October 22, 2013. Question 1 is answered in the negative, Moldaver J. dissenting. Question 2 is answered in the negative with respect to the three seats reserved for Quebec and the declaratory provision set out in cl. 472. It is answered in the affirmative with respect to cl. 471.
René LeBlanc and Christine Mohr, for the Attorney General of Canada.
Patrick J. Monahan and Josh Hunter, for the intervener the Attorney General of Ontario.
André Fauteux and Jean‑François Beaupré, for the intervener the Attorney General of Quebec.
Sébastien Grammond, Jeffrey Haylock and Nicolas M. Rouleau, for the interveners Robert Décary, Alice Desjardins and Gilles Létourneau.
Rocco Galati, on his own behalf.
Sébastien Grammond, for the intervener the Canadian Association of Provincial Court Judges.
Paul Slansky, for the intervener the Constitutional Rights Centre Inc.
The following is the opinion of
The Chief Justice and LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ. —
I. Introduction
[1] The Supreme Court Act provides that three of the nine judges of the Supreme Court of Canada must be appointed “from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province”: R.S.C. 1985, c. S-26, s. 6 . This reference seeks our opinion on two aspects of the eligibility requirements for appointment to these three Quebec seats.
[2] The first is whether a person who was at any time an advocate of at least 10 years standing at the Barreau du Québec qualifies for appointment under s. 6 as being “from among the advocates of that Province”. If the answer to the first question is no, the second question arises. It is whether Parliament can enact legislation to make such a person eligible for appointment to one of the three Quebec seats on the Court. The answer to these questions — which on their face raise issues of statutory interpretation — engage more fundamental issues about the composition of the Court and its place in Canada’s legal and constitutional order.
[3] These questions arise in the context of the appointment under s. 6 of the Honourable Marc Nadon, a supernumerary judge of the Federal Court of Appeal and formerly, but not at the time of this appointment, a member of the Quebec bar of more than 10 years standing. Justice Nadon was not a judge of the Court of Appeal or the Superior Court of the Province of Quebec and therefore was not eligible for appointment on that basis. The narrow question is thus whether he was eligible for appointment because he had previously been a member of the Quebec bar.
[4] In our view, the answer to this question is no: a current judge of the Federal Court of Appeal is not eligible for appointment under s. 6 as a person who may be appointed “from among the advocates of that Province”. This language requires that, at the time of appointment, the appointee be a current member of the Quebec bar with at least 10 years standing.
[5] On the question of whether Parliament can enact legislation purporting to declare a binding interpretation of s. 6 and thereby permit the appointment of a former member of the bar to one of the Quebec positions on the Court, our view is that the answer is also no. The eligibility requirements set out in s. 6 relate to the composition of the Court and are, therefore, constitutionally protected. Under s. 41(d) of the Constitution Act, 1982 , any amendment in relation to the composition of the Supreme Court of Canada may only be made by proclamation issued by the Governor General under the Great Seal of Canada authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province.
[6] The practical effect is that the appointment of Justice Nadon and his swearing-in as a judge of the Court were void ab initio. He remains a supernumerary judge of the Federal Court of Appeal.
II. The Reference Questions
[7] On October 22, 2013, the Governor General in Council issued Order in Council P.C. 2013-1105 under s. 53 of the Supreme Court Act , which referred to this Court the following questions:
1. Can a person who was, at any time, an advocate of at least 10 years standing at the Barreau du Québec be appointed to the Supreme Court of Canada as a member of the Supreme Court from Quebec pursuant to sections 5 and 6 of the Supreme Court Act ?
2. Can Parliament enact legislation that requires that a person be or has previously been a barrister or advocate of at least 10 years standing at the bar of a province as a condition of appointment as a judge of the Supreme Court of Canada or enact the annexed declaratory provisions as set out in clauses 471 and 472 of the Bill entitled Economic Action Plan 2013 Act, No. 2 ?
[8] These questions concern the proper interpretation of ss. 5 and 6 of the Supreme Court Act and Parliament’s authority to amend them. Our opinion, issued pursuant to s. 53(4) of the Act , limits itself to the legal and jurisdictional issues necessary to answer the questions. We are not asked about nor opine on the advantages or disadvantages of the eligibility requirements codified in ss. 5 and 6 of the Act and possible changes to them.
III. Background
[9] On September 30, 2013, the Prime Minister of Canada announced the nomination of Justice Marc Nadon, a supernumerary judge of the Federal Court of Appeal, to the Supreme Court of Canada. On October 3, 2013, by Order in Council P.C. 2013-1050, Justice Nadon was named a judge of the Supreme Court of Canada, replacing Justice Morris Fish as one of the three judges appointed from Quebec pursuant to s. 6 of the Supreme Court Act . He was sworn in as a member of the Court on the morning of October 7, 2013.
[10] The same day, the appointment was challenged by an application before the Federal Court of Canada: Federal Court File No. T-1657-13. Justice Nadon decided not to participate in any matters before the Court.
[11] On October 22, 2013, the Governor General in Council referred the two questions set out earlier to this Court for hearing and consideration pursuant to s. 53 of the Supreme Court Act . On the same day, Bill C-4, Economic Action Plan 2013 Act, No. 2 , was introduced in the House of Commons. Clauses 471 and 472 of Bill C-4 proposed to amend the Supreme Court Act by adding ss. 5.1 and 6.1 . These provisions were subsequently passed and received Royal Assent on December 12, 2013: S.C. 2013, c. 40 . The new s. 6.1 seeks to make it clear that a former member of the Quebec bar is eligible for appointment under s. 6 .
[12] Sections 5 , 5.1 , 6 and 6.1 of the Act now read as follows:
5. Any person may be appointed a judge 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.
5.1 For greater certainty, for the purpose of section 5 , a person may be appointed a judge if, at any time, they were a barrister or advocate of at least 10 years standing at the bar of a province.
6. At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.
6.1 For greater certainty, for the purpose of section 6 , a judge is from among the advocates of the Province of Quebec if, at any time, they were an advocate of at least 10 years standing at the bar of that Province.
IV. Question 1
A. The Issue
1. Can a person who was, at any time, an advocate of at least 10 years standing at the Barreau du Québec be appointed to the Supreme Court of Canada as a member of the Supreme Court from Quebec pursuant to sections 5 and 6 of the Supreme Court Act ?
[13] Section 5 of the Supreme Court Act sets out the general eligibility requirements for appointment to the Supreme Court of Canada by creating four groups of people who are eligible for appointment: (1) current judges of a superior court of a province, including courts of appeal, (2) former judges of such a court, (3) current barristers or advocates of at least 10 years standing at the bar of a province, and (4) former barristers or advocates of at least 10 years standing.
[14] Section 6 of the Act sets out the specific eligibility requirements for appointment to the Supreme Court as a judge for the province of Quebec. The provision expressly identifies two categories of people who are eligible for appointment: (1) judges of the Court of Appeal and Superior Court of Quebec, and (2) members of the Quebec bar.
[15] The question in this reference is whether the second category in s. 6 of the Act encompasses both current and former members of the Quebec bar, or whether it limits eligibility to current members of the bar. Justice Nadon does not belong to the first category — he was not a judge of the Court of Appeal or of the Superior Court of Quebec — and was not a current member of the Quebec bar at the time of his appointment. He is, however, a former member of the Quebec bar of more than 10 years standing. His eligibility for appointment thus turns on the scope of the second category — i.e. on whether a person is eligible for appointment to the Supreme Court of Canada under s. 6 of the Act on the basis of former membership of the Quebec bar.
[16] The Attorney General of Canada submits that s. 5 sets out the general eligibility criteria and allows both former and current members of the bar to be appointed to the Supreme Court. In his view, s. 6 does not restrict or otherwise substantively modify these criteria; rather, it functions to ensure that judges appointed for Quebec fulfil the general eligibility requirements in the province of Quebec.
[17] In our view, s. 6 narrows the pool from the four groups of people who are eligible under s. 5 to two groups who are eligible under s. 6 . By specifying that three judges shall be selected from among the members of a specific list of institutions, s. 6 requires that persons appointed to the three Quebec seats must, in addition to meeting the general requirements of s. 5 , be current members of these institutions.
[18] We come to this conclusion for four main reasons. First, the plain meaning of s. 6 has remained consistent since the original version of that provision was enacted in 1875, and it has always excluded former advocates. Second, this interpretation gives effect to important differences in the wording of ss. 5 and 6 . Third, this interpretation of s. 6 advances its dual purpose of ensuring that the Court has civil law expertise and that Quebec’s legal traditions and social values are represented on the Court and that Quebec’s confidence in the Court be maintained. Finally, this interpretation is consistent with the broader scheme of the Supreme Court Act for the appointment of ad hoc judges.
B. General Principles of Interpretation
[19] The Supreme Court Act was enacted in 1875 as an ordinary statute under the authority of s. 101 of the Constitution Act, 1867 (S.C. 1875, c. 11 ). However, as we explain below, Parliament’s authority to amend the Act is now limited by the Constitution. Sections 5 and 6 of the Supreme Court Act reflect an essential feature of the Supreme Court of Canada — its composition — which is constitutionally protected under Part V of the Constitution Act, 1982 . As such, they must be interpreted in a broad and purposive manner and understood in their proper linguistic, philosophic and historical context: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 155-56; Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344.
C. Legislative History of Sections 5 and 6
[20] The eligibility requirements for appointments from Quebec are the result of the historic bargain that gave birth to the Court in 1875. Sections 5 and 6 in the current Act descend from the original eligibility provision found in s. 4 of the 1875 Act . It is therefore useful to review the legislative history of the eligibility provisions. As we shall discuss, only the 1886 amendment to the Act substantively changed the general eligibility requirements for appointment to the Court under what is now s. 5 . There have been no substantive changes to the criteria for appointments from Quebec since the Act was introduced in 1875.
[21] The 1875 Act set out in a single provision the appointment process, the number of judges (one chief justice and five puisne judges), the general eligibility requirements, and the specification that two judges shall come from the bench or bar of Quebec: s. 4. The portion of s. 4 that evolved into ss. 4, 5 and 6 of the current Act stated:
4. [Qualification of Chief Justice and Judges, respectively.] Her Majesty may appoint, by letters patent, under the Great Seal of Canada, one person, who is, or has been, a Judge of one of the Superior Courts in any of the Provinces forming part of the Dominion of Canada, or who is a Barrister or Advocate of at least ten years’ standing at the Bar of any one of the said Provinces, to be Chief Justice of the said Court, and five persons who are, or have been, respectively, Judges of one of the said Superior Courts, or who are Barristers or Advocates of at least ten years’ standing at the Bar of one of the said Provinces, to be Puisne Judges of the said Court, two of whom at least shall be taken from among the Judges of the Superior Court or Court of Queen’s Bench, or the Barristers or Advocates of the Province of Quebec;
4. [Qualités exigées du juge en chef et des juges.] Sa Majesté pourra nommer, par lettres patentes sous le grand sceau du Canada, — comme juge en chef de cette cour, — une personne étant ou ayant été juge de l’une des cours supérieures dans quelqu’une des provinces formant la Puissance du Canada, ou un avocat ayant pratiqué pendant au moins dix ans au barreau de quelqu’une de ces provinces, et, — comme juges puînés de cette cour, — cinq personnes étant ou ayant été respectivement juges de l’une de ces cours supérieures, ou étant avocats de pas moins de dix ans de pratique au barreau de quelqu’une de ces provinces, dont deux au moins seront pris parmi les juges de la Cour Supérieure ou de la Cour du Banc de la Reine, ou parmi les procureurs ou avocats de la province de Québec;
This provision contemplated the appointment of only current lawyers to the Court, both for Quebec and for the rest of the country.
[22] The only substantive change to the eligibility requirements took place in 1886 as part of statutory revisions (R.S.C. 1886, c. 135). Section 4 was divided into several subsections, including ss. 4(2) and 4(3) setting out the general requirements for appointment and, more specifically, the requirements for Quebec appointments. Notably, the language in s. 4(2) (now s. 5 ) was broadened to encompass any person who “is or has been” (“sera ou aura été”) a barrister or advocate. Sections 4(2) and 4(3) read:
2. [Who may be appointed judge.] Any person may be appointed a judge of the court who is or has been a judge of a superior court of any of the Provinces of Canada, or a barrister or advocate of at least ten years’ standing at the bar of any of the said Provinces:
3. [Judges from bar of Quebec.] Two at least of the judges of the court shall be appointed from among the judges of the Court of Queen’s Bench, or of the Superior Court, or the barristers or advocates of the Province of Quebec:
2. [Qui pourra être nommé juge.] Pourra être nommé juge de la cour quiconque sera ou aura été juge d’une cour supérieure dans quelqu’une des provinces du Canada, ou un avocat ayant pratiqué pendant au moins dix ans au barreau de quelqu’une de ces provinces.
3. [Juges tirés du barreau de Québec.] Au moins deux des juges de la cour seront pris parmi les juges de la cour du Banc de la Reine ou de la cour Supérieure, ou parmi les avocats de la province de Québec.
[23] We have underlined key aspects of the wording in each official language of the revisions of 1886, which we will discuss below. The 1886 Act contemplated the appointment of current or former lawyers to the Court generally, but it did not change the more restrictive language for the Quebec appointments. The revisions of 1886 stipulated that where the effect of the revised statutes is different from that of the repealed laws, “the provisions contained in [the Revised Statutes] shall prevail”: An Act respecting the Revised Statutes of Canada, R.S.C. 1886, c. 4, s. 8.
[24] In 1906, ss. 4(2) and 4(3) became ss. 5 and 6 , but no substantive changes were made: R.S.C. 1906, c. 139.
[25] In 1927, one judge was added for a total of seven judges on the Court, but the number of Quebec judges remained two: S.C. 1926-27, c. 38, s. 1; R.S.C. 1927, c. 35, ss. 4 and 6. The Court was enlarged again in 1949, when the number of judges of the Court increased to nine and the ratio of Quebec judges was preserved by increasing their number to three: An Act to amend the Supreme Court Act, S.C. 1949 (2nd Sess.), c. 37, s. 1.
[26] The current text of ss. 5 and 6 dates to the statutory revisions of 1985. These revisions changed the French wording of ss. 5 and 6 , creating an ambiguity that will be discussed below, but did not change the English wording. Parliament did not intend any substantive changes at this time: Legislation Revision and Consolidation Act, R.S.C. 1985, c. S-20, s. 6 . The 1985 text provides:
5. [Who may be appointed judges.] Any person may be appointed a judge 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.
6. [Three judges from Quebec.] At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.
5. [Conditions de nomination.] Les juges sont choisis parmi les juges, actuels ou anciens, d’une cour supérieure provinciale et parmi les avocats inscrits pendant au moins dix ans au barreau d’une province.
6. [Représentation du Québec.] Au moins trois des juges sont choisis parmi les juges de la Cour d’appel ou de la Cour supérieure de la province de Québec ou parmi les avocats de celle-ci.
[27] In summary, other than the increase from two Quebec judges to three in s. 6 , there have been no substantive amendments to ss. 5 and 6 between the 1886 revisions, which explicitly took precedence over the previous version, and the version currently in force.
D. Section 5
[28] To repeat, s. 5 of the Act sets out the eligibility requirements that apply generally to appointments to the Court. The section creates four groups of people who are eligible for appointment: (1) current judges of a superior court of a province, including courts of appeal; (2) former judges of such a court; (3) current barristers or advocates of at least 10 years standing at the bar of a province; and (4) former barristers or advocates of at least 10 years standing. Thus, the section authorizes the appointment to the Court of current or former barristers or advocates of at least 10 years standing at the bar of a province.
[29] The English version of s. 5 is unambiguous. The specification “is or has been” clearly applies to both judges of a superior court of a province and barristers or advocates of at least 10 years standing at the bar of a province. This is confirmed by the provision’s legislative history. Under the 1875 Act , appointments were limited to persons “who are, or have been, respectively, Judges of one of the said Superior Courts, or who are Barristers or Advocates”: s. 4 . The 1875 Act excluded former advocates from appointment. It permitted the appointment of current or former judges and current, but not former, advocates. As part of statutory revisions of 1886, however, the specification “is or has been” was extended to both judges and advocates, thereby including former advocates as a fourth category of eligible candidates. As we have observed, the changes made under the 1886 statutory revision were intended to have substantive effect.
[30] To the extent that there are ambiguities in the French version of s. 5 , they were created by the 1985 revision. Prior to 1985, the wording of the French text (“est ou a été”) closely mirrored that of the English text (“is or has been”). Between 1886 and 1985, both versions plainly encompassed current as well as former advocates. The English version continues to do so. The French version now requires the selection of judges “parmi les juges, actuels ou anciens” or “parmi les avocats inscrits pendant au moins dix ans”. It might be suggested that the current wording excludes advocates who are not current members of the bar, because the specification “actuels ou anciens” is not applied to them. We reject this argument.
[31] The 1985 change to the French version of s. 5 did not change its meaning. This amendment was part of statutory revisions which were not intended to effect substantive change: s. 6 of the Legislation Revision and Consolidation Act ; Sarvanis v. Canada, 2002 SCC 28, [2002] 1 S.C.R. 921, at para. 13. In short, the meaning of the text of the English and French versions remains the same as before the 1985 revision.
[32] We reach the same conclusion by applying the shared meaning rule of bilingual interpretation, which requires that