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Despite the momentous issues at stake in Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, the case, at bottom, involved a routine exercise of statutory interpretation: Do the words “from among the advocates of that Province” in section 6 denote current membership in the Quebec bar?

Based on the often repeated modern approach to statutory interpretation, the Court was called upon to read the words in the Act “in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.” Sections 5 and 6 of the Supreme Court Act state:

s. 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.

s. 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.

It can immediately be seen that the matter hinges on whether the temporal requirement in section 5 (“is or has been”) is carried over into section 6. This is as much a linguistic as it is a legal issue.

As a starting point, everyone agrees that sections 5 and 6 must be read together. At paras. 41 and 42 of their decision, the majority contrast the language of sections 5 and 6, and conclude that the words “from among” in section 6 do not mean from among former judges or advocates. “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.” The majority refers to pages 243-244 of Professor Sullivan’s text “Sullivan on the Construction of Statutes” and the notion of implied exclusion, in support of their interpretation.

At para. 126 of his dissenting opinion, Justice Moldaver comes to the opposite view. The words from among in section 6, he says, “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. In short, they do not alter the group to which s. 6 refers – the group described in s. 5.”

It is obviously a close case. Read on their own, the words “from among” in section 6 do seem to convey a present tense. However, the words cannot be read on their own and must be read with section 5. That section explicitly provides for past or current membership in the listed institutions. One would expect that, if Parliament intended there to be such a stark difference in the requirements of sections 5 and 6, it would have said so with equal specificity. In other words, the majority’s reliance on implied exclusion can just as easily be turned on its head in support of the opposite conclusion.

The reliance on implied exclusion in these circumstances is questionable. Without doubt, implied exclusion can be used to say that the listed institutions in section 6 exclude all others. It is far more problematic to say that the omission of the words “is or has been” in section 6 impliedly exclude past membership in the listed institutions. It could just as easily be said it wasn’t considered necessary to include the words “is or has been” in section 6 since they were already included in the preceding section. This point gains force when the statutory intent could have been so easily made clear by including the word “current” in section 6.

Since the majority holds that the purpose of the currency requirement is to help ensure the legitimacy of the Court’s decisions in Quebec, a matter of the utmost importance, one would expect the requirement would be made explicit in the Supreme Court Act. That is especially the case when section 5, dealing with the same subject matter, explicitly provides the opposite. Given the importance of the subject matter, Parliament would have wanted to ensure that the requirements for Quebec membership on the Court were as clearly spelled out in section 6 as they were in section 5. Those considerations point away from the majority’s conclusion.

While the majority refers to pages 243-244 of Professor Sullivan’s textbook, her chapter on implied exclusion is in fact suggestive of the need for caution in the use of the doctrine. For example, in Jones v. New Brunswick (Attorney General), [1975] 2 S.C.R. 182, cited in the text, Laskin C.J. stated: “This maxim provides at the most merely a guide to interpretation; it does not pre-ordain conclusions.”

In an earlier Supreme Court decision, Turgeon v. Dominion Bank, [1930] S.C.R. 67, also cited in the text, Newcombe J. stated: “The maxim, expression unius est exclusion alterius, enunciates a principle which has its application in the construction of statutes and written instruments, and no doubt it has its uses when it aids to discover the intention; but, as has been said, while it is often a valuable servant, it is a dangerous master to follow. Much depends upon the context. One has to realize that a general rule of interpretation is not always in the mind of a draughtsman; that accidents occur; that there may be inadvertence; that sometimes unnecessary expressions are introduced, ex abundanti cautela, by way of least resistance, to satisfy an insistent interest, without any thought of limiting the general provision; and so the axiom is held not to be of universal application.”

Professor Sullivan goes on to state: “These observations are insightful and they have been taken to heart by both courts and commentators, so much so that they have led to an unwarranted distrust of this maxim as compared to others. In addition to the Turgeon case, the following passage from Cote is frequently cited: ‘A contrario, especially in the form of expressio unius est exclusio alterius, is widely used. But of all the interpretive arguments it is among those which must be used with the utmost caution. The courts have often declared it an unreliable tool, and …it is frequently rejected.’”

Professor Sullivan’s conclusion on the use of implied exclusion is more nuanced than that of the majority:

While it is true that implied exclusion arguments are often rightly rejected, it does not follow that implied exclusion is unreliable or less reliable than the other maxims or other techniques for analyzing legislative text. Implied exclusion is frequently invoked because it is an essential tool of efficient communication and is likely to play a role in most successful communication efforts. In legal contexts, it is reinforced by the conventions of consistent expression and no tautology. Like all arguments based on these presumptions, its weight depends on a range of contextual factors and the weight of competing considerations. However, it is no more likely to mislead than any other of the inferences examined in this chapter.

To my mind, the most weighty competing consideration here is the use of the phrase “is or has been” in section 5, and the reasonable expectation that equal clarity would have been expected if there were a contrary intention in section 6. The majority does not address the point. Indeed, other than the reference to pages 243-244 of Professor Sullivan’s text, there is no reference to the balance of the chapter on implied exclusion, or any reference to the earlier decisions of the Court on the use of the doctrine. On this view, the most likely explanation would be that the legislative draughtsman either did not consider it necessary to address the currency requirement in section 6 because it was already spelled out in section 5, or it was inadvertently overlooked for that reason.