2014 SCC 21, 2014 SCC 21

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 requirementfor 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 aprinciple 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 theappointment of ad hoc judges, is a historic anomaly and does not assist in the

interpretation of the eligibility requirements set out in ss. 5and 6. Any

interpretation of s. 6 that requires a former advocate of at least 10 years standing at the Quebec bar, or a former judgeof 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 Courtmakes no practical sense. It is difficult to believe that the people of Quebec would somehow have more confidence in this candidate onFriday 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 ofAppeal for Canada”, found in s. 101 of the Constitution Act, 1867, has been overtaken by the Supreme Court’s evolution in the structureof the Constitution, as recognized in

Part V of the Constitution Act, 1982. The Court’s constitutional status initially arose from theCourt’s historical evolution into an institution whose continued existence and functioning engaged the interests of both Parliament andthe provinces. The Court’s protection was then confirmed by the Constitution Act, 1982, which reflected the understanding that theCourt’s essential features formed part of the Constitution of Canada. As a result, Parliament is now required to maintain the essence ofwhat enables the Supreme Court to perform its current role.

While Parliament has the authority to enact amendments necessary for thecontinued 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 toconstitutional amending procedures. Changes to the composition of the Court, including its abolition, can only be made under theprocedure provided for in s. 41(

d) and therefore require the unanimous consent of Parliament and the provincial legislatures. The notionof “composition” refers to ss. 4(1), 5 and 6 of the Act, which codify the composition of and eligibility requirements for appointment tothe Supreme Court as they existed in 1982. Any substantive change in relation to those eligibility requirements is an amendment to theConstitution in relation to the composition of the Supreme Court and triggers the application of

Part V. Changes to the other essentialfeatures of the Court can only be made under the procedure provided for in s. 42(1)(d), which requires the consent of at least sevenprovinces representing, in the aggregate, at least half of the population of all the provinces. The essential features of the Court protectedunder 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 ofconstitutional

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 itsubstantively changes the eligibility requirements for appointments to the Quebec seats on the Court under s. 6. The assertion that it is adeclaratory provision does not alter its import. However, s. 5.1 (cl. 471) does not alter the law as it existed in 1982 and is thereforevalidly 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 Quebecseats on this Court, the legislation that Question 2 refers to does nothing more than restate the law as it exists. Accordingly, it isunnecessary to answer Question 2. Cases Cited By McLachlin C.J. and LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ. Referred to: Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; Edwards v. Attorney-General forCanada, (UK JCPC), [1930] A.C. 124; R. v. Big M Drug Mart Ltd., (SCC), [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 ofQuebec, (SCC), [1998] 2 S.C.R. 217; Re References by the Governor-General in Council (1910), (SCC), 43 S.C.R. 536, aff’d (UK JCPC), [1912] A.C. 571; Reference re The Farm Products Marketing Act, (SCC), [1957] S.C.R. 198; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837; Hunt v. T&N plc, (SCC), [1993] 4 S.C.R. 289; Bank of Montreal v. Metropolitan Investigation & Security (Canada) Ltd., (SCC), [1975]2 S.C.R. 546; R. v. Gardiner, (SCC), [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), (SCC), [1998] 1 S.C.R. 27; Morgentaler v. The Queen, (SCC), [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 , 5 e 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

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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 modifythese criteria; rather, it functions to ensure that judges appointed for Quebec fulfil the general eligibility requirements in the province ofQuebec. [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 areeligible under s. 6.

By specifying that three judges shall be selected from among the members of a specific list of institutions, s. 6requires that persons appointed to the three Quebec seats must, in addition to meeting the general requirements of s. 5, be currentmembers of these institutions. [18] We come to this conclusion for four main reasons. First, the plain meaning of s. 6 has remained consistent since theoriginal version of that provision was enacted in 1875, and it has always excluded former advocates. Second, this

interpretation giveseffect to important differences in the wording of ss. 5 and 6. Third, this

interpretation of s. 6 advances its dual purpose of ensuring thatthe Court has civil law expertise and that Quebec’s legal traditions and social values are represented on the Court and that Quebec’sconfidence in the Court be maintained. Finally, this

interpretation is consistent with the broader scheme of the Supreme Court Act for theappointment 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 ConstitutionAct, 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 isconstitutionally protected under

Part V of the Constitution Act, 1982. As such, they must be interpreted in a broad and purposive mannerand understood in their proper linguistic, philosophic and historical context: Hunter v. Southam Inc., (SCC), [1984] 2S.C.R. 145, at pp. 155-56; Edwards v. Attorney-General for Canada, (UK JCPC), [1930] A.C. 124 (P.C.), at p. 136; R.v. Big M Drug Mart Ltd., (SCC), [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 theCourt 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 istherefore useful to review the legislative history of the eligibility provisions. As we shall discuss, only the 1886 amendment to the Actsubstantively changed the general eligibility requirements for appointment to the Court under what is now s. 5.

There have been nosubstantive 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 fivepuisne 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 saidCourt, and five persons who are, or have been, respectively, Judges of one of the said Superior Courts, or who are Barristers orAdvocates 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 atleast shall be taken from among the Judges of the Superior Court or Court of Queen’s Bench, or the Barristers or Advocates of theProvince 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 provincesformant 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 étantavocats 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 dela 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 forappointment and, more specifically, the requirements for Quebec appointments. Notably, the language in s. 4(2) (now s. 5) wasbroadened 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 ofany 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 ofQueen’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 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: Ruth Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 99-116; Pierre-André Côté, in collaboration with Stéphane Beaulac and Mathieu Devinat, The

Interpretation of Legislation in Canada (4th ed. 2011), at pp. 347-49; R. v. Daoust , 2004 SCC 6 , [2004] 1 S.C.R. 217, at para. 28 . The English version of the text is unambiguous in its inclusion of former advocates for appointment, while the French version is reasonably capable of two

interpretations: one which excludes former advocates from appointment, and one which includes them. The meaning common to both versions is only found in the unambiguous English version, which is therefore the meaning we should adopt. [ 33 ] Finally, the inclusion of former advocates of at least 10 years standing at the bar is consistent with the purpose of s. 5 , which is to ensure that appointees to the Court have adequate legal experience. [ 34 ] In the result, judges of the Federal Court or Federal Court of Appeal will generally qualify for appointment under s. 5 on the basis that they were formerly barristers or advocates of at least 10 years standing. E.

Section 6 [ 35 ]

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” (“ sont choisis parmi les juges de la Cour d’appel ou de la Cour sup érieure de la province de Québec ou parmi les avocats de celle-ci ”). [ 36 ] The Attorney General of Canada argues that ss. 5 and 6 must be read together as complementary provisions, so that the requirement of at least 10 years standing at the bar applies to appointments from Quebec.

Since s. 6 makes no reference to how many years an appointee must have been at the bar, reading it without s. 5 would lead to the absurd result that a highly inexperienced lawyer would be eligible for appointment to the Court, the Attorney General says. [ 37 ] We agree that ss. 5 and 6 must be read together. We also agree that the requirement of at least 10 years standing at the bar applies to appointments from Quebec.

We disagree, however, with the Attorney General’s ultimate conclusion that reading these provisions together in a complementary way permits the appointment of former advocates of at least 10 years standing to the Quebec seats on the Court.

Section 6 does not displace the general requirements under s. 5 that apply to all appointments to the Supreme Court. Rather, it makes additional specifications in respect of the three judges from Quebec. One of these is that they must currently be a member of the Quebec bar. [ 38 ] We reach this conclusion based on the plain meaning and purpose of s. 6, and the surrounding statutory context.

(1) The Plain Meaning of

Section 6 [ 39 ] The language of s. 5 is general (“[a]ny person may be appointed a judge”), whereas the language of s. 6 is restrictive (“[a]t least three of the judges shall be appointed from among”). As such, s. 6 limits the pool of candidates. It is undisputed that s. 6 does so geographically by requiring that the appointments be made from one of the listed institutions in Quebec.

The issue is whether s. 6 also imposes a requirement of current membership in one of the listed institutions. [ 40 ] The Attorney General of Canada argues that the plain meaning of s. 6 does not require current membership in the bar of Quebec. He submits that the phrase “from among” (“ parmi ” in French) does not contain a temporal element and, as a result, s. 6 imports s. 5 ’s temporal specifications (“is or has been”). [ 41 ] We do not agree. There is an important change in language between s. 5 and s.

Section 5 refers to both present and former membership in the listed institutions by using the words “is or has been” in the English version and “ actuels ou anciens ” in the French version. By contrast, s. 6 refers only to the pool of individuals who are presently members of the bar (“shall be appointed from among” and “ sont choisis parmi ”).

The significance of this change is made clear by the plain meaning of the words used: the words “from among the judges” and “ parmi les juges ” do not mean “from among the former judges” and “ parmi les anciens juges ”, and the words “from among the advocates” and “ parmi les avocats ” do not mean “from among the former advocates” and “ parmi les anciens avocats ”. [ 42 ] It is a principle of

interpretation that the mention of one or more things of a particular class excludes, by implication, all other members of the class: Sullivan, at pp. 243-44. By enumerating the particular institutions in Quebec from which appointments shall be made, s. 6 excludes all other institutions. Similarly, 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. [ 43 ] The fact that ss. 5 and 6 originated in a single provision — s. 4 of the 1875 Act — does not undermine our

interpretation, because the same textual observations could be made with respect to the original provision. Then, as now, the general requirements for appointment were phrased generally whereas the specification for Quebec judges was expressed more restrictively: “. . . 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 . . . .” [ 44 ] Indeed, s. 4 of the 1875 Act adds weight to our conclusion that former advocates are excluded from appointment as Quebec judges.

From 1875 until the revisions of 1886, eligibility extended to persons “who are, or have been, respectively, Judges . . . or who are Barristers or Advocates”. The Quebec requirement was first enacted alongside this general language, which clearly excluded

former advocates from appointment. When the general requirements were broadened in 1886, rendering former advocates eligible, thewording of the Quebec requirement did not substantively change. With the exception of the increase from two judges to three in 1949,the wording of the Quebec requirement has remained substantively unchanged since 1875. Absent any express intention to amend theQuebec requirement since its enactment in 1875, we find that s. 6 retains its original meaning and excludes the appointment of formerQuebec advocates to the designated Quebec seats. The requirement of current membership in the Quebec bar has been in place —unambiguous and unchanged — since 1875. [45] In

summary, on a plain reading, s. 5 creates four groups of people eligible for appointment: current and formerjudges of a superior court and current and former barristers or advocates of at least 10 years standing at the bar. But s. 6 imposes arequirement that persons appointed to the three Quebec seats must, in addition to meeting the general requirements of s. 5, be currentmembers of the listed Quebec institutions. Thus, s. 6 narrows eligibility to only two groups for Quebec appointments: current judges ofthe Court of Appeal or Superior Court of Quebec and current advocates of at least 10 years standing at the bar of Quebec.

(2) The Purpose of

Section 6 [46] This textual analysis is consistent with the underlying purpose of s. 6. The Attorney General of Canada submits thatthe purpose of s. 6 is simply to ensure that three members of this Court are trained and experienced in Quebec civil law and that thispurpose is satisfied by appointing either current or former Quebec advocates, both of whom would have civil law training andexperience. [47] While the Attorney General of Canada’s submissions capture an important purpose of the provision, a review of thelegislative history reveals an additional and broader purpose. [48]

Section 6 reflects the historical compromise that led to the creation of the Supreme Court. Just as the protection ofminority language, religion and education rights were central considerations in the negotiations leading up to Confederation (Reference reSecession of Quebec, (SCC), [1998] 2 S.C.R. 217 (“Secession Reference”), at paras. 79-82), the protection of Quebecthrough a minimum number of Quebec judges was central to the creation of this Court. A purposive

interpretation of s. 6 must beinformed by and not undermine that compromise. [49] The purpose of s. 6 is to ensure not only civil law training and experience on the Court, but also to ensure thatQuebec’s distinct legal traditions and social values are represented on the Court, thereby enhancing the confidence of the people ofQuebec in the Supreme Court as the final arbiter of their rights. Put differently, s. 6 protects both the functioning and the legitimacy ofthe Supreme Court as a general court of appeal for Canada.

This broader purpose was succinctly described by Professor Russell in termsthat are well supported by the historical record: . . . the antipathy to having the Civil Code of Lower Canada interpreted by judges from an alien legal tradition was not based merely on aconcern for legal purity or accuracy.

It stemmed more often from the more fundamental premise that Quebec’s civil-law system was anessential ingredient of its distinctive culture and therefore it required, as a matter of right, judicial custodians imbued with the methods ofjurisprudence and social values integral to that culture. [Emphasis in original.] (Peter H.

Russell, The Supreme Court of Canada as a Bilingual and Bicultural Institution (1969), at p. 8) [50] At the time of Confederation, Quebec was reluctant to accede to the creation of a Supreme Court because of itsconcern that the Court would be incapable of adequately dealing with questions of the Quebec civil law (Ian Bushnell, The CaptiveCourt: A Study of the Supreme Court of Canada (1992), at pp. 4-5; Russell, at pp. 8-9).

Various Members of Parliament for Quebecexpressed concerns about a “Supreme Tribunal of Appeal” that would be composed of Judges, the great majority of whom would be unfamiliar with the civil laws of Quebec, which tribunal would be called uponto revise and would have the power to reverse the decisions of all their Quebec Courts . . . . (Debates of the House of Commons, 2nd Sess., 3rd Parl. (“1875 Debates”), March 16, 1875, at p. 739, Henri-Thomas Taschereau, M.P.for Montmagny, Quebec) [51] The bill creating the Supreme Court was passed only after amendments were made responding specifically toQuebec’s concerns.

Most significantly, the amended bill that became the Supreme Court Act provided that two of the six judges “shall betaken from among the Judges of the Superior Court or Court of Queen’s Bench, or the Barristers or Advocates of the Province ofQuebec”: s. 4 of the 1875 Act. [52] In debating the proposed establishment of the Supreme Court in 1875, members of Parliament on both sides of theHouse of Commons were conscious of the particular situation of Quebec and the need to ensure civil law expertise on the Court. Atsecond reading, Mr.

Taschereau of the governing Liberal Party described Quebec’s special interest in the bill: This interest arises out of the civil appellate jurisdiction proposed to be given to the Supreme Court, and of the peculiar position of thatProvince with regard to her institutions and her laws compared with those of the other Provinces. Situated as she is, no Province in theDominion is so greatly interested as our own in the passage of the Act now under discussion, and which before many days are over, willform a most important

chapter in the statute books of the Dominion. (1875 Debates, March 16, 1875, at p. 738)

[ 53 ] Toussaint Antoine Rodolphe Laflamme introduced the provision for a minimum number of Quebec judges. He described the requirement as a matter of right for Quebec: “He understood if this Supreme Court was to regulate and definitely settle all the questions which involved the interests of Lower Canada, that Province was entitled to two of the six Judges” ( 1875 Debates , March 27, 1875, at p. 938) . Mr. Laflamme reasoned that with two judges (one third) on the Supreme Court, Quebec “would have more and better safeguards than under the present system”, namely appeals to the Privy Council ( ibid. ).

Télesphore Fournier, Minister of Justice and principal spokesman for the bill, argued that the two judges would contribute to the civil law knowledge of the bench as a whole: “. . . there will be among the Judges on the bench, men perfectly versed in the knowledge of the laws of that

section of the Confederation, will be able to give the benefits of their lights to the other Judges sitting with them” ( 1875 Debates , March 16, 1875, at p. 754). David Mills, a supporter of the bill, defended the Quebec minimum against critics who attacked it as “sectionalist”.

In his view, in light of the “entirely different system of jurisprudence” in Quebec, “it was only reasonable that she should have security that a portion of the Court would understand the system of law which it would be called upon to administer” ( 1875 Debates , March 30, 1875, at p. 972 (emphasis added)). [ 54 ] Quebec’s confidence in the Court was dependent on the requirement of two (one third) Quebec judges.

Jacques- Olivier Bureau, a Senator from Quebec, saw fit to “trust the rights of his compatriots . . . to this Supreme Court, as he considered their rights would be quite safe in a court of which two of the judges would have to be taken from the Bench of that Province” ( Debates of the Senate , 2nd Sess., 3rd Parl., April 5, 1875, at p. 713). The comments of Joseph-Aldéric Ouimet, Liberal-Conservative Member for Laval, also underline that it was a matter of confidence in the Court: In Quebec an advocate must have ten years’ practice before he can be a Judge.

The Judges from the other Provinces might have the finest intelligence and the best talent possible and yet not give such satisfaction to the people of Quebec as their own judiciary. ( 1875 Debates , March 27, 1875, at p. 940) [ 55 ] Government and opposition members alike saw the two seats (one third) for Quebec judges as a means of ensuring not only the functioning, but also the legitimacy of the Supreme Court as a federal and bijural institution. [ 56 ] Viewed in this light, the purpose of s. 6 is clearly different from the purpose of s. 5 .

Section 5 establishes a broad pool of eligible candidates; s. 6 is more restrictive. Its exclusion of candidates otherwise eligible under s. 5 was intended by Parliament as a means of attaining the twofold purpose of (

i) ensuring civil law expertise and the representation of Quebec’s legal traditions and social values on the Court, and (ii) enhancing the confidence of Quebec in the Court.

Requiring the appointment of current members of civil law institutions was intended to ensure not only that those judges were qualified to represent Quebec on the Court, but that they were perceived by Quebecers as being so qualified. [ 57 ] It might be argued that excluding former advocates of at least 10 years standing at the Quebec bar does not perfectly advance this twofold purpose because it might exclude from appointment candidates who have civil law expertise and who would in fact bring Quebec’s legal traditions and social values to the Court.

In other words, it could be argued that our reading of s. 6 is under- inclusive when measured against the provision’s objectives. [ 58 ] This argument is not convincing. Parliament could have adopted different criteria to achieve the twofold objectives of s. 6 — for instance by requiring a qualitative assessment of a candidate’s expertise in Quebec’s civil law and legal traditions — but instead it chose to advance the provision’s objectives by specifying objective criteria for appointment to one of the Quebec seats on the Court. In the final analysis, lawmakers must draw lines.

The criteria chosen by Parliament might not achieve perfection, but they do serve to advance the provision’s purpose: see Michael Plaxton and Carissima Mathen, “Purposive

Interpretation, Quebec, and the Supreme Court Act ” (2013), 22 Const. Forum 15, at pp. 20-22. [ 59 ] We earlier concluded that a textual

interpretation of s. 6 excludes former advocates from appointment to the Court. We come to the same conclusion on purposive grounds. The underlying purpose of the general eligibility provision, s. 5, is to articulate minimum general requirements for the appointment of all Supreme Court judges. In contrast, the underlying purpose of s. 6 is to enshrine the historical compromise that led to the creation of the Court by narrowing the eligibility for the Quebec seats.

Its function is to limit the Governor in Council’s otherwise broad discretion to appoint judges, in order to ensure expertise in civil law and that Quebec’s legal traditions and social values are reflected in the judges on the Supreme Court, and to enhance the confidence of the people of Quebec in the Court. [ 60 ] In reaching this conclusion, we do not overlook or in any way minimize the civil law expertise of judges of the Federal Court and Federal Court of Appeal. For instance, s. 5.4 of the Federal Courts Act , R.S.C. 1985, c.

F-7, in many ways reflects s. 6 of the Supreme Court Act by requiring that a minimum number of judges on each court be drawn from Quebec institutions. The role of Quebec judges on the federal courts is a vital one. Nevertheless, s. 6 makes clear that judges of the federal courts are not, by virtue of being judges of those courts, eligible for appointment to the Quebec seats on this Court.

The question is not whether civilist members of the federal courts would make excellent judges of the Supreme Court of Canada, but whether they are eligible for appointment under s. 6 on the basis of being former rather than current advocates of the Province of Quebec.

We conclude that they are not. [ 61 ] Some of the submissions before us relied heavily on the context provided by constitutional negotiations following the patriation of the Constitution in 1982, particularly on Quebec’s agreement to proposed constitutional reforms that would have explicitly rendered Federal Court and Federal Court of Appeal judges eligible for appointment to one of the Quebec seats on the Court.

The Charlottetown Accord went furthest by stipulating that it was entrenching the current Supreme Court Act requirement of “nine members, of whom three must have been admitted to the bar of Quebec (civil law bar)” ( Consensus Report on the Constitution: Charlottetown (1992), at p. 8). This showed, it was argued, that these eligibility requirements were acceptable to Quebec. [ 62 ] We do not find this argument compelling.

The Meech Lake and Charlottetown negotiations over the eligibility requirements for the Court took place in the context of wider negotiations over federal-provincial issues, including greater provincial involvement in Supreme Court appointments. In the case of Quebec, the proposed changes would have diminished the significance of s.

6 as the sole safeguard of Quebec’s interests on the Supreme Court by requiring the Governor General in Council to make an appointment from a list of names submitted by Quebec. In this context, we should be wary of drawing any inference that there was a consensus

interpretation of s. 6 different from the one that we adopt.

(3) Surrounding Statutory Context [ 63 ] The broader scheme of the Supreme Court Act reinforces the conclusion reached through a textual and purposive analysis. In addition to addressing who is eligible to be appointed a judge of the Supreme Court of Canada, the Act addresses which judges of other courts are eligible to sit as ad hoc judges of the Court. Judges of the federal courts and the Tax Court of Canada, while eligible to sit as ad hoc judges generally, are not eligible to sit in Quebec appeals when the quorum of the Court does not include at least two judges appointed under s. 6.

In other words, the provisions governing eligibility to sit as an ad hoc judge of the Court reflect the same distinction between general eligibility and eligibility for one of the Quebec seats. The point is not that these judges are excluded under s. 6 simply because they are excluded under s. 30(2) of the Act. Rather, the point is that the exclusion under s. 30(2) is part of the overall context that must be taken into account in interpreting ss. 5 and 6 of the Act. [ 64 ] In principle, a quorum of the Court consists of five judges: ss. 25 and 29 of the Act .

When there is no quorum, s. 30(1) stipulates that an ad hoc judge may be drawn from (

a) the Federal Court of Appeal, the Federal Court, or the Tax Court of Canada, or, in their absence, from (

b) provincial superior courts.

However, under s. 30(2) , unless two of the judges available to constitute a quorum fulfil the requirements for appointment under s. 6 — that is, were appointed from the bench or bar of Quebec — an ad hoc judge for a Quebec appeal must be drawn from the Court of Appeal or Superior Court of Quebec. [ 65 ] Thus, while judges of the Federal Court, the Federal Court of Appeal and the Tax Court of Canada meet the general eligibility requirements for appointment as an ad hoc judge of this Court under s. 30(1), they do not meet the more restrictive eligibility requirements for an ad hoc judge replacing a Quebec judge under s. 30(2) .

Section 30(2) expressly refers to judges who “fulfil the requirements of

section 6 ” and so the two sections are explicitly linked.

Moreover, ss. 5 and 6 and ss. 30(1) and 30(2) reflect the same distinction between the general eligibility requirements (s. 5 and s. 30(1)) and the more restrictive eligibility requirements for the Quebec seats on the Court (s. 6 and s. 30(2)). [ 66 ] This exclusion of Federal Court and Federal Court of Appeal judges from appointment as ad hoc judges for Quebec lends support to the conclusion that those judges are similarly excluded from appointment to the Court under s. 6. [ 67 ] It was argued that we should give no weight to the wording of s. 30 because it is an obsolete provision that has not been used since the second decade of the 20th century.

We do not agree. The statutory history suggests that the exclusion of judges of the federal courts as ad hoc judges for Quebec cases was not a mere oversight. In the 1970s after the establishment of the Federal Court, s. 30(1) of the Supreme Court Act was revised to refer to the Federal Court ( Federal Court Act , R.S.C. 1970, c. 10 (2nd Supp.), s. 64). Despite the fact that the very purpose of the revision was to incorporate references to the Federal Court into the Act, as was done in s. 30(1), Parliament did not amend the immediately adjacent provision, s. 30(2).

There was similarly no amendment to s. 30(2) when, in 2002, s. 30(1) was amended to refer to the newly separate Federal Court of Appeal and the Tax Court of Canada ( S.C. 2002, c. 8 , s. 175). While certainly not conclusive, the repeated failure to include the Quebec appointees to the Federal Court and Federal Court of Appeal among the judges who may serve as ad hoc judges of this Court in place of s. 6 judges suggests that the exclusion was deliberate.

This in turn is consistent with members of those same courts not being eligible for appointment under s. 6. [ 68 ] When s. 30 was first enacted in 1918 (S.C. 1918, c. 7, s. 1), the assistant judge of the Exchequer Court was a judge from Quebec. Appointing him as an ad hoc judge to hear an appeal from one of the common law provinces would have meant that a majority of the quorum hearing the appeal would be jurists trained in the civil law. Parliament deemed this undesirable.

This legislative history explains why the assistant judge of the Exchequer Court was excluded from serving as an ad hoc judge on appeals from common law provinces. But it does not explain why that judge was also excluded from serving as an ad hoc judge on appeals from Quebec even though that would have maintained Quebec’s representation on appeals from that province. Parliament has, since it first provided for ad hoc judges, consistently precluded judges of the federal courts or their predecessor, the Exchequer Court, from sitting on Quebec appeals as ad hoc judges of the Supreme Court.

If this is an anomaly, it is one that Parliament deliberately created and has consistently maintained.

(4) Conclusion [ 69 ] We therefore conclude that s. 5 establishes general eligibility requirements for a broad pool of persons eligible for appointment to the Supreme Court of Canada. In respect of the three Quebec seats, s. 6 leads to a more restrictive

interpretation of the eligibility requirements in order to give effect to the historical compromise aimed at protecting Quebec’s legal traditions and social values. [ 70 ] We conclude that a person who was, at any time, an advocate of at least 10 years standing at the Barreau du Québec, may be appointed to the Supreme Court pursuant to s. 5 of the Supreme Court Act , but not s. 6. The three appointments under s. 6 require, in addition to the criteria set out in s. 5, current membership of the Barreau du Québec or of the Court of Appeal or Superior Court of Quebec.

Therefore, a judge of the Federal Court or Federal Court of Appeal is ineligible for appointment under s. 6 of the Act. [ 71 ] We note in passing that the reference questions do not ask whether a judge of the Federal Court or Federal Court of Appeal who was a former advocate of at least 10 years standing at the Quebec bar could rejoin the Quebec bar for a day in order to be eligible for appointment to this Court under s. 6 . We therefore do not decide this issue. V. Question 2 A. The Issue 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? [72] In light of our conclusion that appointments to the Court under s. 6 require current membership of the Barreau duQuébec or of the Court of Appeal or Superior Court of Quebec, in addition to the criteria set out in s. 5, it is necessary to consider thesecond question, which is whether Parliament can enact declaratory legislation that would alter the composition of the Supreme Court ofCanada. [73] The Attorney General of Canada argues that the eligibility requirements for appointments under s. 6 have not beenentrenched in the Constitution, and that Parliament retains the plenary power under s. 101 of the Constitution Act, 1867 to unilaterallyamend the eligibility criteria under ss. 5 and 6. [74] We disagree.

Parliament cannot unilaterally change the composition of the Supreme Court of Canada. Essentialfeatures of the Court are constitutionally protected under

Part V of the Constitution Act, 1982. Changes to the composition of the Court can only be made under the procedure provided for in s. 41[1] of the Constitution Act, 1982 and therefore require the unanimous consentof Parliament and the provincial legislatures.

Changes to the other essential features of the Court can only be made under the procedure provided for in s. 42[2] of the Constitution Act, 1982, which requires the consent of at least seven provinces representing, in theaggregate, at least half of the population of all the provinces. [75] We will first discuss the history of how the Court became constitutionally protected, and then answer the AttorneyGeneral of Canada’s arguments on this issue. Finally, we will discuss the effect of the declaratory provisions enacted by Parliament. B.

Evolution of the Constitutional Status of the Supreme Court [76] The Supreme Court’s constitutional status initially arose from the Court’s historical evolution into an institutionwhose continued existence and functioning engaged the interests of both Parliament and the provinces. The Court’s status was thenconfirmed by the Constitution Act, 1982, which reflected the understanding that the Court’s essential features formed part of theConstitution of Canada.

(1) The Supreme Court’s Evolution Prior to Patriation [77] At Confederation, there was no Supreme Court of Canada. Nor were the details of what would eventually becomethe Supreme Court expounded in the Constitution Act, 1867. It was assumed that the ultimate judicial authority for Canada wouldcontinue to be the Judicial Committee of the Privy Council in London.

For example, George-Étienne Cartier, then the Attorney Generalfor Canada East, expressed the view that “we shall always have our court of final appeal in Her Majesty’s Privy Council”, even if ageneral court of appeal for Canada were to be established domestically: Province of Canada, Legislative Assembly, ParliamentaryDebates on the Subject of the Confederation of the British North American Provinces, 3rd Sess., 8th Parl., March 2, 1865, at p. 576. [78] The Constitution Act, 1867, however, gave Parliament the authority to establish a general court of appeal for Canada: 101.

The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution,Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for thebetter Administration of the Laws of Canada. [79] The Parliamentary debates between 1868 and 1875 over whether to create a Supreme Court were instigated by SirJohn A. Macdonald, who was Canada’s Prime Minister and Minister of Justice from 1867 to 1873. He introduced bills for theestablishment of the Supreme Court in 1869 and again in 1870 in the House of Commons.

Both bills, which did not reserve any seats onthe Court for Quebec jurists, faced staunch opposition from Quebec in Parliament. The first bill died on the Order Paper and the secondwas withdrawn. [80] In addition to Quebec’s opposition, the nature of the court’s jurisdiction was contested, and many questionedwhether a general court of appeal was even needed.

Since an appeal to the Privy Council was available and Ontario and Quebec alreadyhad provincial courts of appeal, a Supreme Court would only be an intermediate step on the way to London. [81] The bill that finally became the Supreme Court Act was introduced in 1875 by the federal Minister of Justice,Télesphore Fournier, and was adopted after several amendments (1875 Debates, February 23, 1875, at p. 284). The new Supreme Courthad general appellate jurisdiction over civil, criminal, and constitutional cases.

In addition, the Court was given an exceptional originaljurisdiction not incompatible with its appellate jurisdiction, for instance to consider references from the Governor in Council: ReReferences by the Governor-General in Council (1910), (SCC), 43 S.C.R. 536, affirmed on appeal to the Privy Council, (UK JCPC), [1912] A.C. 571 (sub nom. Attorney-General for Ontario v.

Attorney-General for Canada); SecessionReference, at para. 9. [82] Under the authority newly granted by the Statute of Westminster, 1931, Parliament abolished criminal appeals to thePrivy Council in 1933 (An Act to amend the Criminal Code, S.C. 1932-33, c. 53, s. 17). Of even more historic significance, in 1949, itabolished all appeals to the Privy Council (An Act to amend the Supreme Court Act, s. 3). This had a profound effect on the constitutionalarchitecture of Canada.

The Privy Council had exercised ultimate judicial authority over all legal disputes in Canada, including thosearising from Canada’s Constitution. It played a central role in this country’s constitutional structure, by, among other things, delineatingthe contours of federal and provincial jurisdiction through a number of landmark cases that continue to inform our understanding of thedivision of powers to this day (John T. Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism (2002);Warren J.

Newman, “The Constitutional Status of the Supreme Court of Canada” (2009), 47 S.C.L.R. (2d) 429, at p. 439). As WarrenNewman explains:

. . . the supreme appellate function of the Judicial Committee of the Privy Council was an integral part of the Canadian judicial systemuntil it was ultimately displaced by the Parliament of Canada in favour of the Supreme Court. Canadians could do without a generalcourt of appeal for Canada as long as the Judicial Committee continued to play that role.

With the abolition of appeals to the PrivyCouncil, the appellate jurisdiction of the Supreme Court of Canada became essential. [p. 439] [83] The abolition of appeals to the Privy Council meant that the Supreme Court of Canada inherited the role of theCouncil under the Canadian Constitution. As a result, the Court assumed the powers and jurisdiction “no less in scope than thoseformerly exercised in relation to Canada by the Judicial Committee” (Reference re The Farm Products Marketing Act, (SCC), [1957] S.C.R. 198, at p. 212), including adjudicating disputes over federalism.

The need for a final, independent judicial arbiter ofdisputes over federal-provincial jurisdiction is implicit in a federal system: Inherent in a federal system is the need for an impartial arbiter of jurisdictional disputes over the boundaries of federal and provincialpowers (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3S.C.R. 3, at para. 124). That impartial arbiter is the judiciary, charged with “control[ling] the limits of the respective sovereignties”(Northern Telecom Canada Ltd. v.

Communication Workers of Canada, (SCC), [1983] 1 S.C.R. 733, at p. 741). (Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, at para. 55; see also Secession Reference, at para. 53.) [84] In addition, the elevation in the Court’s status empowered it to exercise a “‘unifying jurisdiction’ over the provincialcourts”: Hunt v. T&N plc, (SCC), [1993] 4 S.C.R. 289, at p. 318; Bank of Montreal v. Metropolitan Investigation &Security (Canada) Ltd., (SCC), [1975] 2 S.C.R. 546, at p. 556. The Supreme Court became the keystone to Canada’sunified court system.

It “acts as the exclusive ultimate appellate court in the country” (Secession Reference, at para. 9). In fulfilling thisrole, the Court is not restricted to the powers of the lower courts from which an appeal is made. Rather, the Court may exercise thepowers necessary to enable it “to discharge its role at the apex of the Canadian judicial system, as the court of last resort for allCanadians”: R. v.

Gardiner, (SCC), [1982] 2 S.C.R. 368, at p. 404, per Dickson J.; Hunt, at p. 319. [85] With the abolition of appeals to the Judicial Committee of the Privy Council, the continued existence andfunctioning of the Supreme Court of Canada became a key matter of interest to both Parliament and the provinces. The Court assumed avital role as an institution forming part of the federal system. It became the final arbiter of division of powers disputes, and became thefinal word on matters of public law and provincial civil law.

Drawing on the expertise of its judges from Canada’s two legal traditions,the Court ensured that the common law and the civil law would evolve side by side, while each maintained its distinctive character. TheCourt thus became central to the functioning of legal systems within each province and, more broadly, to the development of a unifiedand coherent Canadian legal system. [86] The role of the Supreme Court of Canada was further enhanced as the 20th century unfolded. In 1975, Parliamentamended the Supreme Court Act to end appeals as of right to the Court in civil cases (S.C. 1974-75-76, c. 18).

This gave the Court controlover its civil docket, and allowed it to focus on questions of public legal importance. As a result, the Court’s “mandate became orientedless to error correction and more to development of the jurisprudence”: R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at para. 53. [87] As a result of these developments, the Supreme Court emerged as a constitutionally essential institution engagingboth federal and provincial interests.

Increasingly, those concerned with constitutional reform accepted that future reforms would have torecognize the Supreme Court’s position within the architecture of the Constitution.

(2) The Supreme Court and Patriation [88] We have seen that the Supreme Court was already essential under the Constitution’s architecture as the final arbiterof division of powers disputes and as the final general court of appeal for Canada. The Constitution Act, 1982 enhanced the Court’s roleunder the Constitution and confirmed its status as a constitutionally protected institution. [89] Patriation of the Constitution was accompanied by the adoption of the Canadian Charter of Rights and Freedoms,which gave the courts the responsibility for interpreting and remedying breaches of the Charter.

Patriation also brought an explicitacknowledgement that the Constitution is the “supreme law of Canada”: 52.

(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitutionis, to the extent of the inconsistency, of no force or effect. The existence of an impartial and authoritative judicial arbiter is a necessary corollary of the enactment of the supremacy clause. Thejudiciary became the “guardian of the constitution” (Hunter, at p. 155, per Dickson J.). As such, the Supreme Court of Canada is afoundational premise of the Constitution.

With the adoption of the Constitution Act, 1982, “the Canadian system of government wastransformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy”: Secession Reference,at para. 72. [90] Accordingly, the Constitution Act, 1982 confirmed the constitutional protection of the essential features of theSupreme Court. Indeed,

Part V of the Constitution Act, 1982 expressly makes changes to the Supreme Court and to its compositionsubject to constitutional amending procedures. [91] Under s. 41(d), the unanimous consent of Parliament and all provincial legislatures is required for amendments to theConstitution relating to the “composition of the Supreme Court”. The notion of “composition” refers to ss. 4(1), 5 and 6 of the SupremeCourt Act, which codify the composition of and eligibility requirements for appointment to the Supreme Court of Canada as they existedin 1982. By implication, s. 41(

d) also protects the continued existence of the Court, since abolition would altogether remove the Court’scomposition.

[ 92 ] The textual origin of

Part V was the “April Accord” of 1981 ( Constitutional Accord: Canadian Patriation Plan (1981)), to which eight provinces, including Quebec, were parties. The explanatory notes to this Accord confirm that the intention was to limit Parliament’s unilateral authority to reform the Supreme Court. That sentiment finds particular expression in the explanatory note for what became s. 41, which requires unanimity for amendments relating to five matters, including the composition of the Supreme Court: “This

section recognizes that some matters are of such fundamental importance that amendments in relation to them should require the consent of all the provincial Legislatures and Parliament” (p. 9 (note

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