In my post yesterday on the decision in Reference re Supreme Court Act, ss. 5 and 6, I mentioned that the statutory interpretation issues raised in the decision were as much linguistic as they were legal issues. It therefore seems appropriate to have the perspective of a trained linguist on sections 5 and 6 of the Act. Jack Chambers has been a Professor of Linguistics at the University of Toronto for over 30 years, is the author of “Sociolinguistic Theory: Linguistic Variation and Its Social Significance”, and co-editor of “The Handbook of Language Variation and Change.” He is also a Fellow of the Royal Society of Canada.
I sent Professor Chambers the text of sections 5 and 6, and advised that Justice Nadon was a past but not current member of the Quebec bar. Here is his view:
I understand that Justice Nadon is not and never has been a ‘a judge of a superior court’ or a judge of the Court of Appeal, and that he is not now an advocate in Quebec. By section 6, he plainly is not eligible for the appointment. The only plausible reading in section 5 that might make him eligible is in section 5 where the clause ‘who is or has been’ might be construed as having in its scope ‘[an] advocate of at least ten years standing at the bar of the province.’ If Mr. Nadon was an advocate for ten years or more in Quebec, that seems to make him eligible. Because it says ‘who is or has been’ an advocate, Mr. Nadon meets that criterion.
That reading seems to me to provide the most tentative grounds for eligibility, and seems to me to be unlikely as the intention of the Supreme Court Act. Section 5 can be ‘corrected’ (if the intention is otherwise) by adding ‘who is’ so that it says ‘who is or has been a judge of superior court of a province or who is a barrister or advocate of at least ten years standing at the bar of a province.’ With that addition, Mr. Nadon would not be eligible. As it stands, he seems to be eligible by the weakest possible criterion.
I assume that section 5 and section 6 both provide criteria for appointments to the Supreme Court. If section 5 defines eligibility for all provinces except Quebec and section 6 defines eligibility for Quebec, then Mr. Nadon is not eligible. As a ‘former advocate’ he is no longer ‘among the advocates’ in Quebec. If section 5 defines criteria generally, then one could argue that ‘who is or has been’ in section also defines ‘among the advocates’ in section 6. In fairness, I suppose, if the group of eligible advocates in section 5 includes those who used to be advocates, then it should also define the group of eligible advocates in Quebec.
The revised version of section 5 (above) would clarify eligibility by eliminating those who are no longer advocates in their province. Are there people we want as Supreme Court judges who are not judges of higher courts and are no longer advocates? Perhaps professors of law or corporate CEOs who gave up their law practice.
Whether from a linguistic or legal perspective, there would undoubtedly be unanimous agreement that the statutory provisions at issue could have been more clearly drafted.