Reference Re Supreme Court Act, (2014) 455 N.R. 202 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court of Canada
• Case Date: Friday March 21, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 455 N.R. 202 (SCC);2014 SCC 21;[2014] 1 SCR 433;[2014] SCJ No 21 (QL)

Ref. Re Supreme Court Act (2014), 455 N.R. 202 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.R. TBEd. MR.021

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 (35586; 2014 SCC 21; 2014 CSC 21)

Indexed As: Reference Re Supreme Court Act

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

March 21, 2014.

Summary:

A supernumerary judge of the Federal Court of Appeal (Nadon) was appointed a judge of the Supreme Court of Canada for Quebec under s. 6 of the Supreme Court Act. Section 5 of the Act provided the general eligibility requirements for appointment: (1) current judges of a superior court of a province, including courts of appeal; (2) former judges of such courts; (3) lawyers currently with at least 10 years standing at their provincial bar; and (4) former lawyers who, at any time, had at least 10 years standing at their provincial bar. Section 6 required that three of the nine judges of the Supreme Court of Canada had to 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". Nadon was never a judge on the Quebec Superior Court or the Court of Appeal. He had been a member of the Quebec bar for more than 10 years, but was not a current member. Pursuant to s. 53 of the Supreme Court Act, the federal government referred two questions to the court: "(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?". At the same time as referring the matter to the court, the federal government introduced legislation to amend ss. 5 and 6. The new s. 6.1 [472] sought to make it clear that a former member of the Quebec bar was eligible for appointment under s. 6. The new s. 5.1 [471] sought to make it clear that former members of a provincial bar were eligible for appointment under s. 5.

The Supreme Court of Canada, Moldaver, J., dissenting, answered no to both questions. Respecting the first question, the court stated that "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. 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 the 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". Respecting the second question, the court stated that "Both the general eligibility requirements for appointment and the specific eligibility requirements for appointment from Quebec are aspects of the composition of the Court. It follows that any substantive change in relation to those eligibility requirements is an amendment to the Constitution in relation to the composition of the Supreme Court of Canada and triggers the application of Part V of the Constitution Act, 1982. Any change to the eligibility requirements for appointment to the three Quebec positions on the Court codified in s. 6 therefore requires the unanimous consent of Parliament and the 10 provinces. Since s. 6.1 of the Supreme Court Act (cl. 472 of Economic Action Plan 2013 Act, No. 2) substantively changes the eligibility requirements for appointments to the Quebec seats on the Court under s. 6, it seeks to bring about an amendment to the Constitution of Canada on a matter requiring unanimity of Parliament and the provincial legislatures. The assertion that s. 6.1 is a declaratory provision does not alter its import. Section 6.1 is therefore ultra vires of Parliament acting alone. 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".

Constitutional Law - Topic 2106

Amendments - Constitution Act and constitutional documents - By unilateral federal action - A supernumerary judge of the Federal Court of Appeal (Nadon) was appointed a judge of the Supreme Court of Canada for Quebec under s. 6 of the Supreme Court Act - Section 5 of the Act provided the general eligibility requirements for appointment: (1) current judges of a superior court of a province, including courts of appeal; (2) former judges of such courts; (3) lawyers currently with at least 10 years standing at their provincial bar; and (4) former lawyers who, at any time, had at least 10 years standing at their provincial bar - Section 6 required that three of the nine judges of the Supreme Court of Canada had to 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" - Nadon was never a judge on the Quebec Superior Court or the Court of Appeal - He had been a member of the Quebec bar for more than 10 years, but was not a current member - Accordingly, Nadon was ineligible to be appointed under s. 6 - At issue was whether the federal government could unilaterally enact legislation declaring that both ss. 5 and 6 included former judges and lawyers as being eligible for appointment - The Supreme Court of Canada held that the federal government could not unilaterally act to change the eligibility requirements - The court stated that "It is true that at Confederation, Parliament was given the authority through s. 101 of the Constitution Act, 1867 to 'provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada'. Parliament undoubtedly has the authority under s. 101 to enact routine amendments necessary for the continued maintenance of the Supreme Court, but only if those amendments do not change the constitutionally protected features of the Court. The unilateral power found in s. 101 of the Constitution Act, 1867 has been overtaken by the Court's evolution in the structure of the Constitution, as recognized in Part V of the Constitution Act, 1982. As a result, what s. 101 now requires is that Parliament maintain - and protect - the essence of what enables the Supreme Court to perform its current role." - Accordingly, the constitutionally protected "composition" of the court could only be amended under s. 41(d) of the Constitution Act, 1982, using the "7-50 formula" - See paragraphs 1 to 107.

Constitutional Law - Topic 2107

Amendments - Constitution Act and constitutional documents - When unanimity required - [See Constitutional Law - Topic 2106].

Courts - Topic 3022

Supreme Court of Canada - Appointments - General eligibility requirements - A supernumerary judge of the Federal Court of Appeal (Nadon) was appointed a judge of the Supreme Court of Canada for Quebec under s. 6 of the Supreme Court Act - Section 5 of the Act provided the general eligibility requirements for appointment: (1) current judges of a superior court of a province, including courts of appeal; (2) former judges of such courts; (3) lawyers currently with at least 10 years standing at their provincial bar; and (4) former lawyers who, at any time, had at least 10 years standing at their provincial bar - Section 6 required that three of the nine judges of the Supreme Court of Canada had to 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" - Nadon was never a judge on the Quebec Superior Court or the Court of Appeal - He had been a member of the Quebec bar for more than 10 years, but was not a current member - At issue was "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?" - The Supreme Court of Canada stated that "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. 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 the 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" - See paragraphs 1 to 107.

Courts - Topic 3023

Supreme Court of Canada - Appointments - Quebec eligibility requirements - [See Courts - Topic 3022].

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions (incl. where versions conflict and shared meaning rule) - A 1985 amendment to s. 5(1) of the Supreme Court Act created an ambiguity in the French version of s. 5(1), but not in the English version - The Supreme Court of Canada held that the change in the French version of s. 5 did not change its meaning, as the amendment was part of statutory revisions which were not intended to effect substantive change - The court stated that "We reach the same conclusion by applying the shared meaning rule of bilingual interpretation, which requires that where the words of one version may raise an ambiguity, one should look to the other official language version to determine whether its meaning is plain and unequivocal" - See paragraphs 31 to 32.

Cases Noticed:

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 19].

Edwards v. Canada (Attorney General), [1930] A.C. 124, refd to. [para. 19].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 19].

Sarvanis v. Canada, [2002] 1 S.C.R. 921; 284 N.R. 263; 2002 SCC 28, refd to. [para. 31].

R. v. Daoust (C.) et al., [2004] 1 S.C.R. 217; 316 N.R. 203; 2004 SCC 6, refd to. [para. 32].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 48].

Re References by Governor-General in Council (1910), 43 S.C.R. 536, affd. [1912] A.C. 571 (P.C.), refd to. [para. 81].

Reference Re The Farm Products Marketing Act, [1957] S.C.R. 198, refd to. [para. 83].

Reference Re Securities Act (2011), 519 A.R. 63; 539 W.A.C. 63; 2011 SCC 66, refd to. [para. 83].

Hunt v. Lac d'Amiante du Québec Ltée et al., [1993] 4 S.C.R. 289; 161 N.R. 81; 37 B.C.A.C. 161; 60 W.A.C. 161, refd to. [para. 84].

Metropolitan Investigation & Security (Can.) Ltd. v. Bank of Montreal, [1975] 2 S.C.R. 546; 3 N.R. 123, refd to. [para. 84].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, refd to. [para. 84].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 86].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 148].

R. v. Morgentaler, [1976] 1 S.C.R. 616; 4 N.R. 277, refd to. [para. 148].

Statutes Noticed:

Constitution Act, 1867, sect. 101 [para. 78].

Constitution Act, 1982, sect. 41(d) [para. 74, footnote 1]; sect. 42(1)(d) [para. 74, footnote 2]; sect. 52(1) [para. 89].

Supreme Court Act, R.S.C. 1985, c. S-26, sect. 5, sect. 6 [para. 26].

Authors and Works Noticed:

Brun, Henri, Tremblay, Guy, and Brouillet, Eugénie, Droit constitutionnel (5e éd. 2008), pp. 233 to 234 [para. 100].

Bushnell, Ian, The Captive Court: A Study of the Supreme Court of Canada (1992), pp. 4 to 5 [para. 50].

Bushnell, Ian, The Federal Court of Canada: A History, 1875-1992 (1997), pp. 95 to 96 [para. 138, footnote 9].

Canada, Consensus Report on the Constitution (1992), p. 8 [para. 61].

Canada, Hansard, House of Commons Debates, 2nd Sess., 3rd Parl., 1875, pp. 284, 285 [para. 81]; 738 [para. 52]; 739 [para. 50]; 754, 938 [para. 53]; 940 [para. 54]; 972 [para. 53].

Canada, Parliamentary Debates on the subject of the Confederation of the British North American Provinces, 3rd Sess., 8th Provincial Parliament of Canada, Quebec (1865), p. 576 [para. 77].

Canada, Senate Debates, 2nd Sess., 3rd Parl., 1875, p. 713 [para. 54].

Côté, Pierre-André, Beaulac, Stéphane, and Devinat, Mathieu, The Interpretation of Legislation in Canada (4th Ed. 2011), pp. 347 to 349 [para. 32].

Hogg, Peter W. Constitutional Law of Canada (5th Ed. 2007) (2013 Supp., release 1), vol. 1, p. 4-21 [para. 97].

Lederman, W.R., Constitutional Procedure and the Reform of the Supreme Court of Canada (1985), 26 C. de D. 195, pp. 196 [para. 94, footnote 3]; 200 [para. 100].

Monahan, Patrick J., and Shaw, Byron, Constitutional Law (4th Ed. 2013), pp. 204 [para. 100]; 205 [paras. 94, footnote 3, 100].

Newman, Warren J., The Constitutional Status of the Supreme Court of Canada (2009), 47 S.C.L.R. (2d) 429, pp. 434, 439 [para. 82].

Oliver, Peter, Canada, Quebec, and Constitutional Amendment (1999), 49 U.T.L.J. 519, p. 579 [para. 94, footnote 3].

Plaxton, Michael, and Mathen, Carissima, Purposive Interpretation, Quebec, and the Supreme Court Act (2013), 22 Const. Forum const. 15, pp. 20 to 22 [para. 58].

Russell, Peter H., The Supreme Court of Canada as a Bilingual and Bicultural Institution (1969), p. 8 [para. 49].

Saywell, John T., The Lawmakers: Judicial Power and the Shaping of Canadian Federalism (2002), generally [para. 82].

Scott, Stephen A., Pussycat, Pussycat or Patriation and the New Constitutional Amendment Processes (1982), 20 U.W.O. L. Rev. 247, pp. 272 [para. 98]; 273 [para. 94, footnote 3].

Scott, Stephen A., The Canadian Constitutional Amendment Process (1982), 45 Law & Contemp. Probs. 249, p. 261 [para. 98].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 99 to 116 [para. 32]; 243 to 244 [para. 42].

Counsel:

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, appeared 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.

Solicitors of Record:

Attorney General of Canada, Ottawa, Ontario, for the Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Bernard, Roy & Associés, Montreal, Quebec; Attorney General of Quebec, Montreal, Quebec, for the intervener, the Attorney General of Quebec;

Sébastien Grammond, Ottawa, Ontario, for the interveners, Robert Décary, Alice Desjardins and Gilles Létourneau;

Rocco Galati Law Firm Professional Corporation, Toronto, Ontario, for the intervener, Rocco Galati;

Sébastien Grammond, Ottawa, Ontario, for the intervener, the Canadian Association of Provincial Court Judges;

Slansky Law Professional Corporation, Toronto, Ontario, for the intervener, the Constitutional Rights Centre Inc.

This reference was heard on January 15, 2014, before McLachlin, C.J.C., LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada.

On March 21, 2014, the judgment of the Court was delivered in both official languages and the following opinions were filed:

McLachlin, C.J.C., LeBel, Abella, Cromwell, Karakatsanis and Wagner, JJ. - see paragraphs 1 to 107;

Moldaver, J., dissenting - see paragraphs 108 to 154.