Supreme Court

Constitutional Law

‘Courts of Quebec’ contemplated by s. 98 of Constitution Act, 1867 are Superior Court and Court of Appeal of Quebec

Governor General of Canada appointed judge to Quebec Court of Appeal. Prior to appointment, judge was member of Barreau du Quebec, judge of Federal Court and then Federal Court of Appeal Judge. Quebec solicited opinion of court on two constitutional questions: which Quebec courts are covered by s. 98 of Constitution Act, 1867, and what conditions for appointing judges to Quebec courts are required under s. 98 and, specifically, whether s. 98 permits appointment of persons who are members of federal courts. Historic context takes on particular importance in determining purpose of s. 98 in almost total absence of case law or learned commentary. Important fundamental distinction between compromise of 1867 that permitted civil law tradition to flourish in Quebec and creation of general court of appeal for Canada. In matters of constitutional interpretation, provision that embodies historic compromise must be interpreted in manner to preserve compromise. Section 3 of Judges Act (Can.) (JA), lists conditions of appointment of judiciary more detailed than those in s. 98. Section 3 requires link to Bar of province from which judge named, but addresses both advocates or barristers who performed duties and functions of judicial nature on full-time basis after admission to Bar and contemplates promotions from inferior provincial or federal courts to superior trial or appellate court. Practice of appointing judges to superior courts who are jurists with substantial degree of skill in local law, whether acquired by practice or by exercise of judicial functions, followed in Canada for almost 175 years. Section 98 is constitutional provision made subject to legislative interpretation via s. 3 of JA. Nothing in s. 3 incompatible with s. 98. “Courts of Quebec” contemplated by s. 98 are Superior Court and Court of Appeal of Quebec. Candidate for appointment to judiciary in accordance with s. 98 must belong or have belonged to Bar of Province of Quebec. Judge of federal courts who was member of Barreau du Quebec prior to becoming judge may be appointed to Court of Appeal of Quebec of Superior Court of Quebec. Appeal by AGQ, LSUC and CRC dismissed. Supreme Court of Canada agreed with reasons of Quebec Court of Appeal.

Quebec (Attorney General) v. Canada (Attorney General) (Apr. 24, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 36231) 251 A.C.W.S. (3d) 442.

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