Justice Committee on Nov. 19th, 2013

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, I call this meeting to order. This is meeting number five of the Standing Committee on Justice and Human Rights.

We are studying the subject matter of clauses 471 and 472 of Bill C-4, A second act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures. Today we have witnesses to deal with the clauses that were referred to this committee.

We have Professor Carissima—is that how you say it?

[Professor Carissima Mathen, Associate Professor, Faculty of Law, University of Ottawa, As an Individual]

Carissima.

[The Chair, Conservative, Mike Wallace]

Sorry. We have Professor Carissima Mathen, associate professor, faculty of law, University of Ottawa, and Adam Dodek, who is vice-dean of research, and associate professor, faculty of law. Thank you for joining us this morning.

Professor Mathen, you are first, for 10 minutes, please.

[Prof. Carissima Mathen]

Thank you very much.

My name is Carissima Mathen, and I am here in a purely personal capacity.

My introductory remarks will focus first, on the nature of sections 5 and 6 of the Supreme Court Act, and second, on certain issues raised by the nature of clauses 471 and 472.

The two clauses purport to clarify the qualifications for justices appointed to the Supreme Court. Questions have arisen over the interpretation of sections 5 and 6. The appointment of Marc Nadon, a Federal Court of Appeal justice who is not a current member of the Quebec bar, though he has over 10 years' membership, has created controversy. The two clauses at issue deal with bar membership. They do not address the eligibility of Federal Court judges per se to sit on the Supreme Court.

Justice Nadon's nomination was accompanied by a memorandum prepared by former Supreme Court justice Ian Binnie. Mr. Binnie concluded that there is no impediment to appointing Federal Court judges to the court. He noted as well that both sections permit candidates with 10 years' bar membership regardless of its currency.

Together with Professor Michael Plaxton of the University of Saskatchewan, I examined Mr. Binnie's analysis in an article entitled, “Purposive Interpretation, Quebec, and the Supreme Court Act”. I did submit that article to the committee.

Very briefly, Professor Plaxton and I largely agree with Mr. Binnie's analysis of section 5, but we suggest that his analysis of section 6 is incomplete. In our view, he seems to treat section 6 as effectively identical to section 5. It is not. The purpose of section 5 is to guarantee minimum legal expertise for the court as a whole. The purpose of section 6 is additionally to guarantee minimal expertise with respect to Quebec's distinctive legal tradition.

Section 6 responds to a functional concern that is not present in section 5. In addition, our research indicated that section 6 was an attempt by successive Parliaments to assure Quebeckers that at least three judges drawn from that province would have sufficient links with its legal culture.

Returning to the clauses at issue, so long as it acts in accordance with the Constitution, Parliament is always free to amend in whole or in part any law. Courts must interpret and apply the law in its current form. Indeed, the very fact of amendment will inform subsequent judicial interpretation.

When Parliament amends a law, it is assumed to be trying to change it for the future. Thus, as a general rule, statutory amendments do not operate retroactively. Of course Parliament remains free to specify that particular changes are retroactive.

Clauses 471 and 472 are declaratory. Unlike ordinary legislation, declaratory legislation purports to determine the meaning of existing law. Traditionally, such legislation follows an adverse judicial ruling. For this reason, it is assumed to operate retroactively to change the state of affairs under which that ruling was rendered. Declaratory legislation enacted in the absence of an adverse judicial ruling, which is the situation here, is rare. In the present case, it would mean that 10 years' bar membership is all that has ever been required for appointment to the court under section 5 and section 6. In determining the appropriate uses of declaratory legislation, one must consider its goals as well as the law it is purporting to affect.

To the extent that the clauses in issue purport to define the purpose that animated an earlier Parliament or Parliaments, this does not seem to be an appropriate use of declaratory legislation. Determining the purpose of section 6 as originally enacted is an interpretive issue and thus within the special purview of the courts. Parliament may imbue the law with a new or amplified purpose. It may, through declaratory legislation, determine the application of sections 5 and 6, but its ability to define the law's original purpose is more limited, and for good reason.

I noted earlier that Parliament's actions are constrained by the Constitution. Last week during the Senate reference, some counsel noted that part V of the Constitution Act, 1982, the amending formula, includes certain changes to the Supreme Court. One of these is the court's composition. Changes to the Constitution in relation to this require unanimity.

The question of whether and to what extent composition may include the current sections 5 and 6 of the Supreme Court Act suggests a role for examination of their original purpose. This may well constrain the potential scope of any declaratory legislation.

To conclude, a law's original purpose can be significant. Where it is, the use of declaratory legislation is not straightforward and ought to be applied with caution. I believe the current clauses, which raise important issues for the separation of powers and consistency in interpretation, represent one such situation.

That concludes my prepared remarks.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you, Professor.

Our next presenter is Professor Dodek.

You have 10 minutes, sir.

[Professor Adam Dodek, Vice-Dean, Research, and Associate Professor, Faculty of Law, University of Ottawa, As an Individual]

Good morning. My name is Adam Dodek.

I am the vice-dean of research and an associate professor in the common law section of the University of Ottawa.

I teach in the areas of public law and legal ethics. I also teach a seminar on the Supreme Court of Canada, which I would pause to say, as you can well imagine, has been very interesting for our students this year.

I have co-edited three books relating to the Supreme Court of Canada and judicial independence, and have written numerous articles about the Supreme Court, the role of government lawyers, and other matters. Like my colleague Professor Mathen, I am appearing today wholly in my individual capacity.

In my prepared remarks I will address two issues: first, clauses 471 and 472 are not a proper subject of a budget bill; second, by bringing a reference to the Supreme Court about these very provisions, the government is interfering with the proper work of this House.

I recognize that members of the committee may have questions about the interpretations of sections 5 and 6 of the Supreme Court Act and the impact of clauses 471 and 472, and I am very happy to address any questions on that subject.

First, on the appropriateness of inserting clauses 471 and 472 into a budget bill, Bill C-4 is entitled “A second act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures”. As the members of this committee are well aware, clauses 471 and 472 have nothing to do with the budget that the Minister of Finance tabled in Parliament on March 21, 2013. They are instead proposed amendments to the Supreme Court Act. The government's position is that they are declaratory and are not substantive amendments. By this admission, they have no monetary impact and no connection whatsoever to the March 21, 2013 budget.

You will no doubt hear from other witnesses that they do not agree with the government's position that clauses 471 and 472 are simply declaratory. I would say that even if they are correct in that position, there is still no connection whatsoever with the March 21, 2013 budget. Thus, there is no substantive connection, and there is also no temporal connection, between clauses 471 and 472 and the March 21, 2013 budget.

Clauses 471 and 472 relate to a controversy that erupted over the appointment of Justice Marc Nadon, an appointment that began with the announcement on Monday, September 28, 2013 by the Prime Minister, fully six months after the Minister of Finance tabled the budget in the House. It is a factual impossibility to connect something that happened six months later to a budget tabled six months earlier.

Justice Fish announced his intended retirement on April 22, 2013. Again, that was after the budget was tabled.

The controversy over clauses 471 and 472 show that they are not the proper subject of a budget bill. These are not matters that are uncontroversial or mere technical amendments. The government knew the issue was uncertain, and that's the reason it commissioned and then released the opinion from the Honourable Ian Binnie. As well, the directing of the reference to the Supreme Court on these very issues demonstrates the uncertainty of the issue.

I believe that what is at stake here is no less than the democratic features of the House of Commons. Bills such as this one are a threat to democracy in Canada.

Clauses 471 and 472 should be the subject of an independent bill because they raise separate and important public policy issues. I would just pause to say that is my position, notwithstanding my agreement with the government that these provisions are simply declaratory and make no substantive changes to sections 5 and 6 of the Supreme Court Act.

We have a Constitution similar in principle to that of the United Kingdom, and we have often learned and we cherish our constitutional history. Members of this House, I believe, would be wise to heed the warnings from Parliament in Westminster.

Erskine May, in the 23rd edition of Parliamentary Practice, states:

In former times, the Commons abused their right to grant Supply without interference from the Lords, by tacking to bills of aids and supplies provisions which, in a bill that the Lords had no right to amend, must either have been accepted by them unconsidered, or have caused the rejection of a measure necessary for the public service. This practice infringed the privilege of the Lords, no less than their interference in matters of finance infringes the privileges of the Commons.

On December 9, 1702, the House of Lords passed a resolution which stated:

That the annexing any Clause or Clauses to a Bill of Aid or Supply, the Matter of which is foreign to, and different from, the Matter of the said Bill of Aid or Supply, is Unparliamentary, and tends to the Destruction of the Constitution of this Government.

That was then converted into a standing order that had not needed to be invoked as the basis for rejection of a Commons bill since 1807.

In the United Kingdom the rules of order of the House of Commons exclude the possibility of a foreign matter from being tacked on to such bills by way of amendment, and respect for constitutional practice prevents the inclusion of such matters among their original provisions.

Second is the impropriety of legislating and referring the question to the Supreme Court for its consideration at the same time. It is highly unusual for a government to ask Parliament to enact legislation at the same time as it directs a reference to the Supreme Court. Why is this unusual? Because the purpose of directing a reference to the Supreme Court is to obtain the court's advice on a legal question or questions before proceeding with a course of action. The Senate reference that the Supreme Court heard last week is certainly a good example of that. As well, the government's prior reference, the securities reference directed by the government, is another example.

Based on my research, the last time the government directed a reference to the Supreme Court while or after enacting legislation was in 1976 in the Anti-Inflation Act reference when the government of Pierre Trudeau directed a reference to the Supreme Court three months after Parliament had enacted the Anti-Inflation Act. That situation was different. There was a perceived national crisis of double-digit inflation. I would submit to you that the uncertainty regarding sections 5 and 6 is not a cause for a national crisis. It's also highly unusual for a government to, in effect, be challenging its own legislation.

I believe this raises the question as to how the Attorney General of Canada, as the legal adviser to the Governor in Council, can both vouch for the legality of clauses 471 and 472 at the same time as he is questioning them in his advice to the Governor in Council directing the reference on the very same subject. The two simply cannot co-exist. Either the government believes that it is within its power to enact clauses 471 and 472, or it is uncertain and requires the advice of the Supreme Court.

I believe that this odd state of affairs puts the members of this House in an untenable position. They are being asked to vote in favour of two provisions with the assurance by the government that such provisions are legal, indeed constitutional, while at the same time the government is questioning that very advice by directing a reference to the Supreme Court.

Thank you. I look forward to your questions.

[The Chair, Conservative, Mike Wallace]

Thank you, Professor, for that.

We will go to questions.

Our first questioner from the New Democratic Party is Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you both for coming here this morning.

Outside, I was telling one of the witnesses that the University of Ottawa is my alma mater, so we are here in force today…

[A voice]

Conflict of interest.

[Françoise Boivin, NDP, Gatineau, QC]

Not necessarily. I'm a labour lawyer, so believe you me, I will defer to their great minds.

Before asking you some questions, I would like to make some observations. I was pleased to hear Professor Dodek say that there is a glaring contradiction in what is going on at the moment, even without the constitutional arguments and the ego. Our committee has received the mandate to consider two clauses in a budget bill dealing with the Supreme Court of Canada. We received that mandate from the Standing Committee on Finance, to which we in no way report.

This way of doing things is fundamentally worrisome because the very most we could do is make a few recommendations, if there is anything to recommend, to the Standing Committee on Finance. This way of doing things concerns me greatly. It is not the first time it has happened. I think that it is the second time I have been faced with this situation since I was elected in 2011. As a lawyer, I find it disturbing that people are trying to find a back-door solution to a situation for which they are responsible.

Now I will put my questions to the witnesses.

You probably know more about this matter than we do. According to section 6, at least three positions have to be occupied by judges from Quebec. To your knowledge, have any of the positions ever previously been occupied by a Federal Court judge, either from the Federal Court itself or the Federal Court of Appeal?

Either of the witnesses can answer.

[Carissima Mathen]

No, there have been none.

[Françoise Boivin, NDP, Gatineau, QC]

I have heard the argument a lot that it may be very hard for Federal Court judges from Quebec. It must be said that a number of Quebec's former great legal minds currently sit on the Federal Court, and I will never have anything but good to say about that.

If I am not mistaken, judges have been appointed from the Federal Court, but that was to fill one of the other six positions on the Supreme Court of Canada.

[Carissima Mathen]

That is correct.

[Françoise Boivin, NDP, Gatineau, QC]

Professor Dodek, I am concerned by another aspect of the road we are on, and you spoke about it. It is the fact that there is a reference to the Supreme Court at exactly the same time asking exactly the same questions as those that the committee is studying at the moment in the context of clauses 471 and 472 of Bill C-4.

The gist of the reference clearly focuses on those two clauses and on the government's right to pass a bill that would establish the interpretation of the interpretive provisions. It would explain the facts of a situation that has existed since sections 5 and 6 of the Supreme Court Act were written.

You mentioned that seeing a situation like that is a concern. Am I to understand that, while it may not be very appropriate, it is not illegal? Parliament could pas Bill C-4 including clauses 471 and 472, but it would be ill-advised to do so, because we could get our knuckles rapped. It may happen, but it may not. Perhaps the Supreme Court will decide that we have the right to do it. Is it just inappropriate, but not necessarily illegal? That is what I am trying to find out.

[Prof. Adam Dodek]

It is not illegal.

It's not unconstitutional.

It is inappropriate; the interference is the problem.

with the work of the House of Commons and creates a problem of separation of powers. It is asking the House of Commons to vote on an issue that is at the very same time before the Supreme Court, so there is the real possibility of each one interfering and improperly influencing the work of the other. To be very clear, I do not think that the course of action is illegal or unconstitutional.

[Françoise Boivin, NDP, Gatineau, QC]

We are lucky to have you here, as you are both great constitutional scholars. But I am not sure I understood what you said about how section 6 is to be interpreted. In matters dealing with the composition of the Supreme Court of Canada, is the unanimous consent of the provinces required? Is the interpretation of the rules requiring three positions from Quebec under section 6 subject to the requirement in section 41 of the Constitution Act, 1982?

[Prof. Adam Dodek]

In my opinion, section 41 of the Constitution Act, 1982 has nothing to do with it. I don't think this amendment implies that we are amending the Constitution.

[Françoise Boivin, NDP, Gatineau, QC]

So unanimous consent, including from Quebec, would not be required in order for those three positions to be filled.

[Prof. Adam Dodek]

I do not believe that this amendment affects the amendment in Bill C-4. Clauses 471 and 472 change the composition of the Supreme Court of Canada, and therefore I don't believe that they implicate part V of the Constitution Act, 1982.

[The Chair, Conservative, Mike Wallace]

Professor Mathen, do you want to answer?

[Carissima Mathen]

That is not clear. I feel that we have to wait for the Senate reference in order to get more principles on section 5.

I would say that the use of the word “composition” in 41(d) has to mean something. The country does not speak in vain. Whether that extends to qualifications is the issue.

I think it is at least a possibility that because of the use of the word “composition”, because of the non-exhaustive nature of the list of the documents that are listed in section 53 of the Constitution Act, 1982, it is possible that certain aspects of the Supreme Court Act are now protected against mere legislative change. Whether that extends to qualifications is the issue.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you both.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Our next questioner from the Conservative Party is Monsieur Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Good morning. My thanks to the witnesses for joining us today.

Professor Dodek, I am going to follow up on the questions that Ms. Boivin asked you.

Essentially, you are saying that the federal government is acting well within its rights, that it is not illegal to make declaratory provisions like those in clauses 471 and 472. Your opposition is rather to the form, to the fact that this is in Bill C-4. So you are not opposed to the substance, but just to the form, is that correct?

[Prof. Adam Dodek]

Exactly. In my opinion, the problem is in the form.