Supreme Court Appointments and the Interprovincial Practice of Law

Soon – perhaps within the coming days or weeks– the Prime Minister will name a new Supreme Court Justice to replace retired Justice Marie Deschamps. As set out in the Supreme Court Act, this judge must come from Quebec because section 6 of that act provides that “[a]t 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.” However, it is not completely clear who qualifies as “a Quebec judge” for the Supreme Court beyond being a member of the Barreau du Quebec or a judge of a court in Quebec (a judge of the Federal Court or Federal Court of Appeal would apparently not qualify as judges are no longer members of the bar — but that is another issue…).

How “provincial” does a potential Supreme Court judge need to be in order to qualify for the Quebec seat (or the Ontario seat, the Western seat, etc.)?

This problem has been created or rather it has arisen because of mobility within the Canadian legal profession. It is now possible to be a member of and actively practice in multiple jurisdictions. For example, lawyer Guy Pratte has been rumoured as a candidate for the Supreme Court, both for this and future Quebec vacancies and for past Ontario vacancies. Mr. Pratte would clearly qualify for an appointment from either province because according to his firm webpage, he was called to the bar in Ontario in 1984 and the Quebec bar in 2002.

The Supreme Court Act requires that “[a]ny 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.”

So what happens if an Ontario lawyer with more than 10 years experience qualifies for (the notoriously difficult) Quebec bar in 2012? Would they be eligible for appointment from Quebec to replace Justices Fish or Lebel in 2013 or 2014, respectively?

Legally, I think such a hybrid Ontario-Quebec lawyer would be eligible for appointment under the Supreme Court Act. Politically, whether such a person would be considered a “Quebec lawyer” is another matter.

In an age of increasing interprovincial and national practice of law, we are likely to see more lawyers frequently practicing in multiple jurisdictions. They are precisely the type of “national lawyers” who are likely to attract attention as potential Supreme Court of Canada appointees.

However, the old paradigm of regional appointments which is firmly entrenched in our constitutional culture clashes with those changes in the practice of law.

That clash between old and new paradigms is likely to grow in the future and exert increased pressure on our system of regionally-based appointments to our country’s highest court.

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Comments

  1. Interesting post, Adam! If this is beginning of the end for regionally-based appointments, I wonder what will be the new paradigm?

  2. Adam raises an interesting technical point, but I think it will be very clear for the vast majority of lawyers, including SCC-calibre lawyers, where they come from or the principal focus of their practice. And interprovincial mobility among the Atlantic provinces or the Prairie provinces won’t matter to a regional appointment. The politics of location are strong enough to inhibit the appointment of anyone likely to be seen as a carpetbagger, however real the connection with the province of appointment. (Thus I would think that Guy Pratte’s connection with Quebec would not satisfy the Quebec Bar in replacing Madam Justice Deschamps, even if he is welcome in their courtrooms and offices.)

    In addition, as Adam notes, it is rare for someone to be appointed to the SCC directly from practice, and the location of the court from which a justice is elevated is not in dispute. So we’re talking about one or two appointments a decade …

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    I am glad to read this nice article.This problem has been created or rather it has arisen because of mobility within the Canadian legal profession. Pharmacist license defense

  4. Well we have been here before. Both Justices Le Dain and Arbour held “Ontario chairs”, although they were both trained at Quebec law schools and called to the Barreau before they were admitted in Ontario – both as academic calls, while teaching at Osgoode. At that time, a law teacher who taught here for two years and one term could be admitted without taking Bar Admission Exams and articling.

    Both went to lower courts first (Le Dain to the Federal Court of Appeal, Arbour briefly to the Superior Court in Ontario, before swiftly proceeding to the Court of Appeal). But neither would have been considered Ontario lawyers primarily.

    For Guy, the issue is whether he would be considered primarily a Quebec or Ontario advocate. And on this score, he’s a slightly more Quebec advocate than Ontario, judging by Canlii.

    He’s showing up on 50 cases in Quebec – 18 in the cour d’appel. But 19 in Ontario, 10 in CA.

    The cases tend to be high profile and public law cases.

    I recognize that the purpose of having the requirement in the Supreme Court Act is to ensure that there are always at least three judges who are civilistes and can thus adjudicate appeals from that tradition.

    But Guy more than any other of the candidates can claim to be as bi-cultural as he is bilingual.

  5. Sorry Pharmacist. This issue has nothing to do with Mobility and the legal profession. The Mobility Protocol with Quebec expressly prevents common lawyers from practising anything other than their local law (say Ontario) as non-Quebec legal consultants, or federal law (say tax, patents, immigration or criminal law).

    Since 1875, the civiliste component of the SCC has been mandated: it currently reads:

    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.

    Guy Pratte meets that test: indeed in 2012, hewas awarded the Avocat émérite, an award that is only given to distinguished Quebec advocates – although two recipients, Roger Tasse and the Rt. Hon. Jean Chretien spent most of their careers in Ottawa.

  6. Great column, Adam. In light of the other comments and the upcoming SCC vacancy, maybe someone (from the PMO, perhaps?) should ask Guy Pratte, “Where are you from?” and hear what he says.

  7. @ Cameron: I suppose the right response is ‘why do you want to know?’ – though a smart senior counsel taking a call from the PMO might venture to answer that question without asking it aloud, in these circumstances.

  8. If one checks Canada411 you’ll discover that there are listings for the candidate discussed above in Ottawa, Toronto and Montréal – so where are you from has three answers; and he can legitimately say that he’s a taxpayer in at least two provinces.