Nadon, Section 6.1, and the Attorney General’s Constitutional Argument

December 18, 2013

Late last month, the Attorney General of Canada filed its written arguments for the upcoming Nadon Reference. In an earlier post, and an article written with Professor Carissima Mathen, I addressed some of the problems with the AG’s interpretation of s. 6 of the Supreme Court Act. Neither piece, however, gets into the constitutional issues.

The Harper government proposes to amend the Supreme Court Act. Specifically, it wants to insert a provision “declaring” that s. 6 does not limit eligibility to current members of the Quebec bar, with retroactive effect. This is the proposed change:

“6.1 For greater certainty, for the purpose of section 6, a judge is from among the advocates of the Province of Québec if, at any time, they were an advocate of at least 10 years standing at the bar of that Province.”

I want to focus on whether it is constitutionally permissible for Parliament to unilaterally change the eligibility conditions for appointment to the Supreme Court of Canada.

Section 101 and the Mysterious Part V

The AG sees the answer as obvious. Section 101 of the Constitution Act, 1867 expressly gives Parliament the exclusive authority to create a “General Court of Appeal” (i.e., the Supreme Court). That entails the power to decide who is eligible to sit on it. Section 101 has never been subject to constitutional amendment, and so Parliament can enact s. 6.1 if it likes.

The sticking point is Part V of the Constitution Act, 1982. Section 41(d) states that a change to the “composition” of the Supreme Court of Canada requires agreement of all ten provinces. Under s. 42(1)(d), any other change to the Court requires the agreement of 7 provinces representing 50% of the population. Depending on how we understand Part V, these provisions may or may not present a big problem for the AG.

On one reading, these sections limit Parliament’s authority to unilaterally change the Supreme Court only to the extent that some aspect of the Supreme Court’s composition has been specifically entrenched by a constitutional amendment. Otherwise, ss. 41(d) and 42(1)(d) have no effect. Since the Supreme Court Act is an ordinary Act of Parliament, it cannot be taken to have constitutionalized any aspect of the Court’s composition. That being the case, the relevant clauses of Part V are “dormant”. Let us call this “the Hogg view”, in honour of its most famous exponent.

The Hogg view is troubling because the whole point to ss. 41(d) and 42(1)(d) was, surely, to restrain Parliament’s power to change the Supreme Court without provincial consent. They were meant to answer the concerns of the “gang of eight” – the provinces that had opposed Trudeau’s constitutional reforms. As Professor Monahan has remarked:

The underlying purpose of the amending procedure [in Part V] … is to protect the provinces from having their rights or privileges negatively affected without their consent. This includes provincial interests in the design and operation of key national institutions such as the Senate and the House of Commons. Yet, by treating section 41(d) as ineffective, the provinces are granted absolutely no protection when it comes to the Supreme Court, a key institution of the federation.

Monahan does not suggest that all aspects of the Supreme Court Act have been effectively entrenched by Part V – only “those key characteristics of the Court that implicate fundamental provincial interests”. He gives, as one example, “the requirement that three members of the Court be appointed from the bar of Quebec”.

Warren Newman has responded that, on several occasions, “attempts to entrench substantively the composition and essential characteristics of the Supreme Court in the Constitution of Canada were proposed and failed to be ratified.” That being the case, he argues, it would be strange if the Court was “prepared to read these types of provisions directly into the text of the Constitution.” Newman does not endorse the Hogg view. Rather than rely on a purposive interpretation of Part V, though, he looks to the “structural” role of a “court of last resort” in Canada’s constitutional system. As Newman points out, it was unnecessary at the time of Confederation to set out the features of a general court of appeal, or to require Parliament to create one, because Canada already had one: the Judicial Committee of the Privy Council. The Constitution Act, 1867 thus presupposes that there will be a “court of last resort”. Given the legal problems bound to arise in a federal state, it is impossible to read the Constitution as permitting the abrogation of the Supreme Court. Once appeals to the Privy Council were abolished in 1949, “the appellate jurisdiction of the Supreme Court of Canada became essential.” In effect, Newman claims, the mention of the Supreme Court in Part V “crystallized” its constitutional status, and made it impossible for Parliament to change those attributes which were “essential” to it as of 1982.

The AG implicitly supports the Hogg view. It relies on the fact that there has never been a constitutional entrenchment of any aspect of the composition of the Supreme Court. (Much of its argument dwells on the history of failed attempts to constitutionalize aspects of the Court.) According to the AG, neither s. 41(d) nor s. 42(1)(d) limit Parliament’s right to unilaterally change the “professional qualifications for appointment” to the Supreme Court.

That is a sweeping claim. Pushed to its logical extreme, it suggests that Parliament could simply do away with s. 6 altogether, and Québec would have no say in the matter. Indeed, it suggests that Parliament could unilaterally change s. 5 so that anyone could be appointed to the Supreme Court of Canada, whether they have legal training or not. Parliament could decree that, henceforth, people without any legal education are eligible to sit on the highest court in the land – a body capable of reviewing the decisions of provincial appellate courts throughout the country, and for interpreting the Constitution. That would, according to the AG, require no constitutional amendment.

Setting aside the undesirability of such a state of affairs, the AG’s interpretation of Part V strikes me as implausibly narrow. It is inconceivable that Parliament could unilaterally decide that the Court should have 15 members rather than 9 – that it could engage in the sort of “court-stacking” threatened by Roosevelt in the New Deal era. Likewise, it seems implausible to suppose that Parliament could unilaterally do away with a feature of the Supreme Court that goes to the heart of its claim of authority: its expertise in civil and common law. The AG is quite right, of course, that there is nothing that expressly says this in the Constitution Act 1982, or anywhere else. It is simply a background feature of our constitutional order, without which our system of constitutional arrangements would simply cease to make sense.

Part V Entrenches Ends, Not Means

Professor Paul Daly, in his submissions to the Senate Committee of Legal and Constitutional Affairs, seems to take this to be the end of the matter: the proposed declaratory provision purports to change the eligibility criteria of s. 6, and so would be invalid. (A similar position may have been staked out in Professor John Whyte’s op-ed.) I am not so sure.

The reasons for my uncertainty go back to the questions Professor Mathen and I raised about the purpose animating s. 6. As we have argued, there is some reason to think that the section was designed to do more than guarantee civil law expertise on the Supreme Court – Parliament could have achieved that aim without requiring three judges from Quebec. There is room to argue that s. 6 was also intended to provide special assurance to the Quebec bench and bar that the Court would have that expertise, and would be sensitive to Quebec’s legal traditions.

Let us suppose for the sake of argument, then, that s. 6 has two aims – expertise and assurance – considering each one in turn. The proposed s. 6.1 does not change the fact that three judges must have had 10 years standing as members of the Quebec bar. The declaratory provision would change only the requirement that, at the time of appointment, they be current members. This does not obviously strip away the guarantee of civil law expertise provided by the existing s. 6. If it did, we would have to assume that section 5 of the Supreme Court Act, which allows Supreme Court judges to be drawn from both past and current members of the bar, also fails as a guarantee of expertise in the common law. Yet no one doubts that s. 5’s purpose is to ensure expertise on the high court.

Does it matter that s. 6.1 effectively changes how civil law expertise is guaranteed? I don’t think so. Even if we accept Monahan’s and Newman’s arguments that the “essential” characteristics of the Supreme Court have been effectively constitutionalized by Part V, there is no reason to describe them in the concretized terms of the Supreme Court Act. Here, I take to heart Newman’s (and the AG’s) observation that attempts to entrench specific professional qualifications have all failed. Like Newman, I cannot reconcile Monahan’s conclusion, that the precise terms of ss. 5 and 6 of the Supreme Court Act have been constitutionalized, with the reality of Canada’s constitutional history. The former ignores too much. And it strikes me as an unnecessary move to make. Rather than say that the precise means by which the Supreme Court Act guarantees legal expertise is constitutionally entrenched, we could more easily (and defensibly) say that Part V requires only that Parliament create some form of legislation capable of achieving that result. Thus, it could not (as the AG suggests) simply strip away any and all professional qualifications for Supreme Court Justices. It could, however, protect the requirement of professional qualifications in different ways – e.g., by changing s. 5 so that it explicitly requires “legal expertise” rather than 10 years standing at the bar. Within certain bounds, Parliament would have a degree of leeway.

This approach does three things. First, it pays due heed to Monahan’s point that Part V must have some content. Second, it recognizes Newman’s point that some sort of “court of last resort” is essential in our system of government, but that it is less essential to have a court with one set of specific features rather than another – e.g., whether it is the Privy Council or the Supreme Court of Canada. Finally, my approach takes into account that there has been no express constitutional entrenchment of any part of the Supreme Court Act, and no amendment of s. 101 of the Constitution Act, 1867. There is, therefore, no reason to conclude that Parliament’s constitutional authority to ‘tinker’ with the Supreme Court of Canada has been foreclosed insofar as it achieves a broad set of ends.

There is nothing radical in this view. As I have argued here and here, the Constitution frequently prescribes a goal or baseline and then leaves it to the legislature to determine how best to achieve it. Indeed, several decisions in the McLachlin Court era have emphasized that, where one of several remedial approaches would resolve a constitutional infirmity, the courts should defer to the one preferred by the legislature (or, where applicable, executive branch). It is the responsibility of the courts, as guardians of the Constitution, to police the baseline; it is the responsibility of the legislature, as the setter of the country’s policy agenda, to decide how best to reach that baseline.
If s. 6 of the Supreme Court Act protected only the civil law expertise of the Court, there would be no constitutional issue with s. 6.1. (Of course, there would arguably be no reason to enact the declaratory provision in that case.) But s. 6, as we have seen, may serve a second function: to provide assurance to the Quebec bench and bar. Is that an “essential” characteristic of the Supreme Court?

It is certainly plausible that, for any court to have the de facto authority it needs to effectively settle disputes, members of the public must have a minimum degree of confidence in its competence. A court can enjoy that confidence, however, without anyone providing special assurances on its behalf. Over time, the public may simply take it as given that a court will undertake its functions in a thoughtful, impartial, and informed fashion. One could argue that, even if the special assurance provided by s. 6 was necessary to give the Supreme Court a foothold in a young Confederation marked by skepticism and distrust, it is not necessary in an established constitutional and political order nearing its 150th birthday.

So I am not altogether convinced that, even taking on board my reading of s. 6’s purposes and animating aims, there is a constitutional problem with s. 6.1. But I don’t need to reach a firm conclusion here. For now, it is enough to point out that the AG’s argument fails even to acknowledge that there might be a question to ask. It says simply that no part of the Supreme Court’s composition has been constitutionalized, period, full-stop. That is a perilously brittle position. If forced to concede that any aspect of the Court is “essential” to our constitutional order, it will have no place to retreat to.