Analysis of Reference re Supreme Court Act: The Implied Currency Requirement for Quebec Seat Appointees to the Supreme Court

Analysis of Reference re Supreme Court Act: The Implied Currency Requirement for Quebec Seat Appointees to the Supreme Court Daryl Barton* Introduction The Supreme Court of Canada, in a 6-1 judgment in March 2014, ruled that an appointee to one of the three Quebec seats on the Supreme Court must be either a current Quebec Superior Court judge or a current Quebec lawyer of at least ten years standing. Reference re Supreme Court Act, ss. 5 and 6 [Reference] 1 determined that the phrase from among in section 6 of the Supreme Court Act [Act] 2 implies that Supreme Court appointees to the reserved Quebec seats must be current members of one of the designated Quebec legal institutions. The judgment also affirmed that any change to the composition of the Supreme Court, including the eligibility conditions of appointees, is constitutionally protected. 3 A synthesis of textual, contextual, and purposive analysis is hereinafter used to review the Reference. Background Since the Act was established in 1875, it has required that a minimum number of appointees to the Supreme Court of Canada have experience with one of three specified Quebec legal institutions. That stipulation reflects recognition that, since Confederation, Quebec has used a system of law derived from the French civil code that is substantially different from the British common law system adopted by the other provinces. Further, the number of Supreme Court judges was increased from the initial six to seven in 1927; when increased to nine in 1949, the number reserved for Quebec appointees increased from two to three. The core sections of the Act relevant to eligibility for appointment to the Supreme Court are sections 5 and 6: 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. 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. 4 Textual analysis The preposition among is commonly used to designate inclusion of one or more particulars in a class. Typically, both the particulars and the class are assumed to currently exist unless indicated or implicated to be otherwise. Ascription of implied current tense ( currency ) to the phrase from among is common both in legal writing and in less formal uses of language. To cite an example from a Canadian law statute, consider Nunavut s Legislative Assembly and Executive Council Act: Constitutional Forum constitutionnel 19

3. The Legislative Assembly consists of 22 members, each elected to represent one constituency in accordance with the Nunavut Elections Act. 60. (1) The Executive Council of Nunavut is composed of the following members: (a) a Premier chosen from among the members of the Legislative Assembly and appointed by the Commissioner on the recommendation of the Legislative Assembly.... 5 In this context, no apparent ambiguity results in section 60(1)(a) from omitting the word current before members because members clearly implies current members. Although section 3 to some extent explicates the implied currency of members, absent section 3 the meaning of from among in section 60(1)(a) is satisfactorily clear because it is commonly understood that membership in a legislative assembly changes regularly and includes only members selected in the most recent election. Another representatively unambiguous use of the phrase from among in a statute involving implied currency occurs in the federal Competition Tribunal Act: 3. (2) The Tribunal shall consist of (a) not more than six members to be appointed from among the judges of the Federal Court by the Governor in Council on the recommendation of the Minister of Justice.... 6 Provided no other sections of this legislation create contextual ambiguity, from among the judges may be interpreted with near certainty as referring exclusively to the class of current judges. Similarly, informal use of from among to impliedly refer to only current members of the referenced class is common. A baseball team manager who selects a starting pitcher from among the team s pitchers has only the pitchers on the current team roster to choose from. Nonetheless, using from among to impliedly refer to both current and former members of the referenced class is hardly rare. Where a law faculty selects a new faculty member from among the LLBs having at least five years of teaching experience at Canadian law schools, or where appointees to a provincial sports hall of fame must be selected from among that province s athletes, former (that is, presently inactive) members of the referenced classes of Canadian university law teachers and provincial athletes are impliedly, yet unambiguously, eligible. 7 Unlike these five examples in which the evidently unambiguous meaning of the sentence containing from among can be accurately interpreted solely from the text of that sentence, section 6 cannot be accurately interpreted as an isolated sentence because its first use of the phrase the judges refers to another section. Therefore, a purely textual interpretation of section 6 is impractical. Contextual analysis Expanding the scope of the analysis of section 6 to include contextual considerations involves examination of other sections and earlier versions of the Act. Examining the relevant sections in the original text and in the 1886 amended version is instructive. The original 1875 Act states the eligibility requirements for all Supreme Court appointments in a single section using only one sentence. 4. Her majesty may appoint... 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. 8 Section 4 of the 1875 Act contains two eligibility conditions for Supreme Court appointments: (1) membership in specified institutions, 20 Volume 24, Number 1, 2015

one of which includes a minimum experience proviso (institution condition), and (2) current or former membership status (status condition). Section 4 states a general rule for applying these two conditions to Supreme Court appointments, followed by a particular rule for applying them to Quebec seat appointees. In section 4 of the original version, and in sections 5 and 6 of the current version, the phrase from among is not the only potentially ambiguous wording. Also ambiguous, and doubly so in the original section 4, is the word standing in the phrase of at least ten years standing. Assuming standing means duration, it is uncertain in the 1875 version whether the duration of at least ten years must be (1) consecutive or merely cumulative, and (2) current exclusively of the former. Consider the 1886 amendments to section 4: 4.(2) 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. 4.(3) 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. 9 Although perhaps diminishing the original precision of the word standing, section 4(2) resolves the second uncertainty by changing the general rule to clearly include a former lawyer (barrister or advocate) as an eligible appointee. Consequently, the first uncertainty is trivialized if not also nullified: if current status as a lawyer is unrequired, presumably consecutive years of bar membership will be unimportant. Absent the 1886 amendment, interpreting the word standing as implying currency would strongly accord both with standard usage and with reasonable eligibility standards for appointments to the nation s highest court. But, given the obvious remedial intent of the amendment and the unambiguousness of textual meaning, the actual legal authority of the amended statute supersedes the presumed common sense of the original. Because the wording of section 5 of the current version of the Act is a mere textual revision of the corresponding 1886 statute, ten years standing continues to mean, per section 5, that a former lawyer having ten years of nonconsecutive bar membership is eligible for appointment. The original ambiguity of the phrase from among in reference to Quebec seat eligibility was not altered by the 1886 amendments, and remains in the current version s text. That this ambiguity exists was disputed in both the majority judgment and the minority dissent. Although the majority and minority gave section 6 incompatible interpretations, they described its meaning as, respectively, plain and abundantly clear. 10 On the contrary, that the intended meaning of section 6 in the current 1985 version is ambiguous has been amply attested to by the opposing interpretations offered by various experts. 11 In section 4 of the original 1875 version, the general rule clearly states that a lawyer appointee as a puisne judge not representing Quebec must be a current lawyer ( are Barristers or Advocates ). As a result, the issue of whether the particular rule phrase from among implies currency for Quebec seat lawyer appointees does not arise in the 1875 version because the general rule has already established that currency is required. The 1886 amendment to the general rule changes lawyer appointee eligibility for non-quebec seats to include both former and current lawyers ( is or has been... a barrister or advocate ). In all versions of the Act from the 1875 original to the current 1985 version, the non-quebec seat status condition for those whose qualifying experience is as a judge is consistent: the general rule clearly states that former judges are eligible. But, from 1875 onward, the particular rule (regarding Quebec seat appointments) is not satisfactorily unambiguous due to use of the phrase from among. This ambiguity results from the particular rule s explicit changing of only one of the two eligibility conditions. The particular rule explicitly changes the institution condition for Quebec seat appointees without unmistakably maintaining or altering the status condition. Constitutional Forum constitutionnel 21

Thus, although the 1886 amendments clarified the status condition requirement for non- Quebec seat appointees such that both former judges and former lawyers were eligible, the original Act ambiguity regarding the status condition requirement for Quebec seat appointees was perpetuated in the 1886 version and in subsequent versions. Therefore, it persists in section 6 of the current version. The 1906 structural revision of the Act divided section 4 into sections 5 and 6. 12 Section 5 restates the general rule and section 6 restates the particular rule. In the current Act, section 6 is linked to section 5 by its explicit change to the institution condition. 13 By stipulating that at least three of the Supreme Court appointees must have experience at one of three Quebec institutions, section 6 unequivocally qualifies the section 5 institution condition. Because that explicit qualification links sections 5 and 6 (reflecting the connectedness of their content in the original 1875 version), plausible interpretation of section 6 requires reading it conjunctively with section 5: section 5 states a general rule involving two conditions and section 6 states a particular rule that changes one of both of those conditions. On the minority interpretation of section 6, the only function of section 6 is to change the institution condition of section 5. The majority reading changes both the institution condition and the status condition of section 5 such that section 6 eligibility for Quebec seat appointment is limited to current members of the named institutions. Regarding institution condition eligibility for lawyers, although it is possible that Quebec lawyer appointees were intended to have no minimum experience requirement, that perspective, apart from being nonsensically imprudent, is implausible given both the minimum experience requirement for non-quebec lawyer appointees per section 5 and the historical concern of Quebec that the Supreme Court include members with expertise in Quebec law. 14 Given that section 6 contains no minimum experience requirement for lawyers, it is reasonable to conclude, as both the majority and minority did, that the section 5 minimum experience requirement for lawyers applies to section 6. The applicability of the section 5 status condition to section 6 is the crux of this Supreme Court case. The section 5 status condition requires that an appointee be either a current or former judge or a current or former lawyer having ten years standing. The majority judgment substantiated the contention that section 6 changes not only the institution condition but also the status condition. It highlighted the change in wording from is or has been in section 5 to from among in section 6 as evidence that the eligibility conditions for Quebec seat appointees impliedly require a jurist (judge or lawyer) to be a current practitioner in one of the designated Quebec institutions, not merely to have experience in one of them. 15 But, given that sections 5 and 6 are linked, the phrase from among is equally consistent with a reading of section 6 whereby the sole function of section 6 is to distinguish the section 6 institution condition from that of section 5. That is, it is entirely plausible that the only purpose of section 6 is differentiation of the list of institutions applicable to designated Quebec appointees from among the list of institutions applicable generally (in effect, to the other six appointees). On that interpretation, which is consistent with the minority dissent, the phrase from among functions merely to stipulate that three of the nine judges must have experience as jurists in one of the designated Quebec institutions, and so the section 5 status condition is adopted rather than changed. Whether the ten years experience stipulated in section 5 for lawyer appointees must be at the bar of a single province or can be accumulated from more than one province, including Quebec, is unclear, especially given the weak meaning of standing introduced in the 1886 amendments. Thus, although the phrase from among commonly does unambiguously imply currency when used in legislation, as in the two examples cited above, in this instance it may have either the singular function of referring to Quebec institutions or the dual function of additionally ascribing currency, making it ambiguous. Although it is true that adding the word current before the words judges and advocates in section 6 would have clarified legisla- 22 Volume 24, Number 1, 2015

tive intent if current status was intended as a section 6 requirement, it is also true that adding the phrase current or former would have clarified that Parliament instead intended that either current status or former status conferred eligibility. 16 Moreover, given that the phrase from among commonly connotes currency (and assuming it did circa 1875), if the enactors intended the status condition for Quebec seat appointees to include both former and current members of the referenced classes ( Judges and Barristers or Advocates ), then adding clarifying words would have been especially important where from among was not being used to express implied currency. Ultimately, textual and contextual analysis shows that the significance of the shift in phrasing in the current English version from is or has been in section 5 to from among in section 6 is uncertain, as are the equivalent shifts in wording within section 4 of the 1875 version. Given this uncertainty, the text of section 6 always was and still is ambiguous. A possible explanation, supplemental to the Supreme Court s reasoning, for why the 1875 enactors did not explicitly clarify the meaning of the English phrase from among is contained in the memorandum commissioned from retired Supreme Court Justice Ian Binnie: While it is true that the [current 1985] French text taken in isolation could be interpreted to mean current members, any such ambiguity is resolved by referring to the unambiguous English text. 17 If the 1875 French-speaking Parliamentarians, particularly those from Quebec, were satisfied (however unjustifiably) that the French version of section 4 expressed the intended meaning of the statute with sufficient clarity, they may have assumed (reasonably or unreasonably) that any apparent incongruity between the French and English texts would be judicially resolved by giving primacy to the French version of the part of text that describes the particular rule, given that the section 4 particular rule was included to allay Quebec concerns and referred to only Quebecbased jurists. Had they been able to foresee the emergence of the shared meaning rule of bilingual interpretation, 18 which gives primacy to the least ambiguous text wherever the French and English versions seem incompatible, perhaps the text would have been rewritten to resolve latent ambiguity. A similar perspective regarding interpretation may have resulted in a similar lack of concern about possible subtle incongruities between the French and English texts arising from later Act consolidations. 19 Problematically, the majority s interpretation of sections 5 and 6 gives section 6 an asymmetrical relationship with section 5 by making selective use of section 5 s eligibility criteria: it adopts the ten-year minimum bar membership requirement for lawyers but discards the stipulation that both current and former jurists are eligible. As the minority stated, given that section 6 contains no requirement for minimal experience, attributing this selective relationship between the two sections is necessary to avoid the absurd result of having no minimum of legal professional expertise for Supreme Court appointees from Quebec. 20 The minority identifies an additional absurdity produced by imposing a currency requirement on otherwise qualified Quebec seat candidates: former Quebec lawyers of ten years standing who are ineligible due to noncurrency can regain eligibility merely by renewing their Quebec Bar membership, which does not require active practicing of law in Quebec (notwithstanding that present rules may not reflect 1875 Bar rules). 21 Given that an asymmetrical exegesis is necessary to resolve these absurdities only if one interprets the section 6 phrase from among as imposing a requirement of current status on candidates who satisfy the institution condition, such a reading of the phrase appears to be implausible. On the other hand, the presumption that a statute text is coherent and not intended to produce absurd results is reasonably rebuttable where there is either (i) clear and compelling contextual evidence of evolution in statute application that has superseded the gravity of textual incoherence, or (ii) clear and compelling purposive evidence of original legislative intent that overrides textual illogic. 22 The majority reasoned that section 30, which concerns the appointment of ad hoc judges for Supreme Court cases involving Quebec s Constitutional Forum constitutionnel 23

civil code, has, like section 6, been consistently applied in a manner that suggests it also contains an implicit currency requirement, and that this indicates a consistency of legislative intent that strengthens the majority reading of section 6 despite manifest absurdities. 23 The majority concluded that in considering section 6 within the totality of the Act, the historical exclusion of federal court judges as ad hoc judges for Quebec pursuant to section 30 cases, including those with ten years standing as Quebec lawyers, indicates that the exclusion was deliberate, and that this deliberate long-term exclusion is consistent with an interpretation of section 6 that excludes federal court judges as Quebec appointees to the Supreme Court. Because a federal court judge is neither a Quebec superior court judge nor a current Quebec lawyer with ten years standing, if federal court judges have been consistently and deliberately excluded from ad hoc appointments, then, the majority reasoned, it is likely such exclusion reflected an enduring belief that they were ineligible because they were not current members of one of the three section 6 institutions. But even if the historical non-appointment of federal court judges as ad hoc judges for Quebec cases has been deliberate, that may have been merely due to the desire to avoid uncertain application of an ambiguous statute and the possibility of a legal challenge of an appointment (which led to this case), and thus not a reflection of prevailing beliefs regarding eligibility. Accordingly, whether or not one concurs with the minority that section 30 is irrelevant to permanent Supreme Court judge appointments, 24 the historical selection of ad hoc judges does not provide reliable guidance for assessing an implied currency requirement for section 6 appointees. Consequently, although combined textual and contextual analysis is inconclusive, the section 6 interpretation whereby former Quebec jurists who satisfy the institution condition are eligible Quebec seat appointees is, at this level of analysis, the most plausible. Purposive analysis Given that combined textual and contextual analysis is inconclusive, though indicative that the absence of a section 6 currency requirement is substantially more probable, expanding the scope of analysis to purposive interpretation yields the following hypothesis: the majority s interpretation that section 6 contains an implicit eligibility requirement that membership in one of its designated institutions must be current is ultimately plausible only insofar as there is clear and compelling evidence circa 1875, such as from the Hansard debates, that Parliament intended that designated Quebec appointees must be current jurists. Historical evidence cited by the majority shows that Quebec had concern in 1875 about whether expertise with Quebec s system of law would be adequately represented on a prospective federal supreme court. 25 While it is obvious that amelioration of such concern required stipulation in the Act that a minimum number of appointees have demonstrable experience with Quebec s legal system, there was no comparably compelling reason for the enactors to presume that only current Quebec Superior Court judges and current Quebec lawyers having ten years standing would possess such competence. Granted, reasons can be surmised why the 1875 enactors, especially Quebec Members of Parliament, might have believed it would be prudent to exclude noncurrent Quebec jurists en masse. For example, the possible appointment of former Quebec jurists whose professional experience as Quebec jurists ended many years earlier, and thus whose expertise might be substantially diminished, could dilute the already minoritystatus influence of Quebec members in a supreme court. Also, future legislatures might deliberately endorse Quebec appointees lacking first-rate qualifications in an attempt to minimize the influence of Quebec-based experts on Supreme Court judgments. 26 On the other hand, it would have been equally reasonable for the enactors to have viewed a currency requirement for Quebec appointees as unduly excluding exceptional candidates, especially considering that otherwise qualified former jurists were deemed to be eli- 24 Volume 24, Number 1, 2015

gible appointees to the non-quebec seats. Furthermore, the enactors may have believed that ascertaining the suitability of noncurrent jurists would be best left to the Parliament responsible for filling a vacancy. In summary, although imposing an additional eligibility requirement of current jurist status on Quebec appointees would have been consistent with and perhaps promotive in ensuring civil code expertise among Supreme Court judges and Quebecer confidence in that expertise, imposing that requirement was not essential to achieving those goals. Purposive interpretation, which has become a fundamental principle of analysis of all statutes, involves consideration of the intended purpose and actual consequences of the enactment, especially where the statute s literal meaning evidently conflicts with its remedial function. 27 Purposive analysis invariably involves some degree of factbased speculation about the intended function of the statute being interpreted. But unwarranted inferences from historical patterns of statute application and mere speculation about Parliament s actual intentions do not provide factual information and thus do not constitute evidence. Without substantive historical evidence that a currency requirement for Quebec seat appointees to the Supreme Court was intended by the enactors, purposive analysis does not support an interpretation that ascribes it. Absent clear and compelling evidence to the contrary, it is reasonable to conclude that, from the perspective of the 1875 Parliament, the desired assurance of adequate civil code expertise on the Supreme Court was satisfactorily secured by stipulating minimum Quebec representation, selected from current and former Quebec superior court judges and from current Quebec lawyers of ten years standing. Wherever change to legislation requires use of the stringent constitutional amending formula, as Reference affirmed is the case for the Act s eligibility conditions for Supreme Court appointments, it is crucial that statute ambiguities be acknowledged and that purposive interpretations be rigorously evidence-based. Given statute interpretations of unequal plausibility, favouring one that is, to a marked degree, relatively implausible cannot reasonably be said to respect the primacy of Parliament. Notes * DJ Barton is a UNB alumnus. 1 2014 SCC 21, [2014] 1 SCR 433 [Reference]. 2 RSC 1985, c s-26 [Act]. 3 Constitution Act, 1982, s 41(d), being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 4 Supra note 2. 5 S Nu 2002, c 5 [emphasis added]. 6 RSC 1985, c 19 (2nd Supp) [emphasis added]. 7 Contra Ian Peach, Reference re Supreme Court Act, ss 5 and 6: Expanding the Constitution of Canada (2014) 23:3 Const Forum Const 1 (evidently not having conceived of any counterexamples, asserts that the temporal dimension of from among invariably connotes currency: [T]o be from among a group, one must be a current member of that group unless the phrase from among is modified by the phrase those who are or who were previously members of the group at 2). 8 Supreme and Exchequer Court Act, SC 1875, c 11. 9 Supreme and Exchequer Courts Act, RSC 1886, c 135. 10 Reference, supra note 1 at paras 18, 129. 11 See R v McIntosh, [1995] 1 SCR 686 (an allusion to the dissent by then Justice McLachlin: The facial ambiguity of s. 34(2) is amply attested by the different interpretations which it has been given by different courts at para 58). Chief Justice McLachlin authored the majority of the judgment in Reference. 12 Supreme Court Act, RSC 1906, c 139. 13 Although the Act s first section 6 use of the phrase the judges refers to judge appointed as Supreme Court judges pursuant to the Act, the phrase need not be linked specifically to section 5 (as stated in the Moldaver J dissent in Reference at para 122). The meaning of the first section 6 use of the judges is clear by referring solely to section 4(1) of the Act: The court shall consist of a chief justice to be called the Chief Justice of Canada, and eight puisne judges. The second use of the judges in section 6 of the Act refers to the two judicial institutions enumerated in section 6. 14 Reference, supra note 1 at paras 48-56. 15 Ibid at para 41. 16 Ibid at para 127. 17 Letter from the Honourable Ian Binnie, former Supreme Court of Canada Judge, to federal Depart- Constitutional Forum constitutionnel 25

ment of Justice (9 September 2013): Re: Eligibility of Federal Court Judges For Appointment To The Supreme Court of Canada online: Prime Minister of Canada Stephen Harper <http:// pm.gc.ca/grfx/docs/20130930_binnie_cp.pdf> at 4 [emphasis in the original]. 18 Reference, supra note 1 at para 32. 19 Binnie, supra note 17 at 6 (regarding the 1952 consolidation). 20 Reference, supra note 1 at para 123. 21 Ibid at para 153. 22 Ruth Sullivan, Sullivan and Driedger On The Construction of Statutes, 4th ed (Vancouver: Butterworths, 2002) ( [i]n examining social context, the courts may look both to the context in which the impugned legislation was initially enacted and to the context in which it currently operates at 458). 23 Reference, supra note 1 at paras 63-68. 24 Ibid at para 141. 25 Ibid at paras 48-56. 26 See Michael Plaxton & Carissima Mathen, Purposive Interpretation, Quebec, and the Supreme Court Act (2013) 22:3 Const Forum Const 15 (discussion of other possible motivations for Parliament in 1875 to include currency as a status condition for Quebec seat Supreme Court Appointments). 27 See R v Sommerville, [1974] SCR 387; R v Big Drug Mart, [1985] 1 SCR 295; R v McIntosh, [1995] 1 SCR 686 at paras 18-38, 57-61, 73-74, 81; Rizzo & Rizzo Shoes (Re), [1998] 1 SCR 27 at paras 20-23, 27, 36, 40; Canada Trustco Mortgage Co v Canada, 2005 SCC 54 at paras 10-13, 39-42, 47, [2005] 2 SCR 601. See also Stephane Beaulac, Handbook on Statutory Interpretation: General Methodology, Canadian Charter, And International Law (Markham, ON: LexisNexis, 2008) (a detailed survey of SCC case law betrays blatant inconsistency of statutory interpretation methods: while reference to Driedger has remained constant, there has been an oscillation between textualism and intentionalism at 33-35). 26 Volume 24, Number 1, 2015