Justice Committee on Nov. 19th, 2013

[Sean Casey, Liberal, Charlottetown, PE]

Professor Dodek, you heard your colleague's comments with respect to the appropriateness of the use of declaratory legislation, and we certainly heard you loud and clear with regard to the conflict between proceeding with legislative changes at the same time as proceeding with a court reference.

Could I have your comment on the suggestion that if the coming into force of these sections were delayed, the court could speak unimpeded first, before these sections were to come into force? Could I have your views on that?

[Prof. Adam Dodek]

As I've stated publicly before, I think the best options that respect both the work of the House of Commons as well as the work of the Supreme Court would be for the government either to proceed by legislation, as you have before you in clauses 471 and 472, or to direct a reference to the Supreme Court, not both at the same time.

I would support any cause of action that suspended or delayed one of those activities. Ultimately, that is a policy choice to be made by the government. I personally have no preference as to which choice the government should make. It's wholly within the government's power.

To be clear, it's within the government's power to do both at the same time. It is not illegal or unconstitutional, but it is imprudent and it is injurious to our democratic institutions.

[Sean Casey, Liberal, Charlottetown, PE]

We could address the imprudence and the injuriousness by allowing one to proceed unimpeded, and then the coming into force of the legislative changes could, I suppose, deal with anything that may happen down the road.

[Prof. Adam Dodek]

Yes, you certainly could do that.

[Sean Casey, Liberal, Charlottetown, PE]

I put this forward to get your advice before we propose amendments. That's the goal.

[Prof. Adam Dodek]

A number of possibilities would be in the hands of the members of this committee as to how they wish to proceed.

As I've said before, I don't believe that these clauses are the proper subjects for a budget bill. I would support a recommendation that they be hived off into a separate bill; or there is no need to proceed with them, to take them out of the budget bill completely, given the reference that is pending before the Supreme Court; or the committee could decide to recommend to the government to withdraw its reference to the Supreme Court in light of the recommendation by this committee to adopt these amendments.

[The Chair, Conservative, Mike Wallace]

You have one more minute, Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

Professor Mathen, I heard you loud and clear with respect to the appropriateness of declaratory legislation in an instance such as this. Could you elaborate on whether this is an appropriate situation for a constitutional amendment? In your view, is that advisable or required?

[Prof. Carissima Mathen]

I do not think that qualifications, per se, count toward the composition of the court. That said, we have just had three days of argument before the Supreme Court of Canada with respect to part V of the Constitution Act, 1982, and it is possible that the court will adopt an approach to part V that will require consideration of that issue.

I do not believe that qualifications, per se, go to composition, but we are about to get much more guidance about that. To my mind, that complicates the use of declaratory legislation at this time, because one cannot through declaratory legislation effect changes that would otherwise be governed under the Constitution.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Casey.

Thank you for those answers, professors.

Our next questioner is Mr. Dechert, from the Conservative Party. Following on what Mr. Casey did, indicating who your question is for is helpful to the witnesses in determining who will answer.

Thank you.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair. Thank you to our witnesses.

My questions are for Ms. Mathen.

Ms. Mathen, former chief justice John Richard, who was a law partner of mine for a number of years, stated that the Federal Court of Appeal is “a national, bilingual institution dispensing justice” across Canada, and that it is “also a bijuridical court, applying both the common law and the civil law.” As well, as you know, the federal government, through Bill S-12 and other acts, has promoted bijuralism in the Federal Court.

Do you agree with former Federal Court chief justice John Richard in those comments that he made?

[Prof. Carissima Mathen]

Yes, I do.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay.

You mentioned in your opening statement that the purposes of section 6 in particular were to ensure that a candidate for the Supreme Court from Quebec had a minimal expertise in civil law and sufficient links with the legal culture of the bar of Quebec.

I just note that I don't believe either of you is a member of the Quebec bar. I think, Professor Dodek, that you're the dean of the common law section at the University of Ottawa.

[Prof. Adam Dodek]

I'm the vice-dean of research in the common law section. I don't want to—

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay, very good.

[The Chair, Conservative, Mike Wallace]

Give yourself a promotion.

[Prof. Adam Dodek]

That's very generous of you.

[Voices]

Oh, oh!

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

I'm just trying to understand your position here, and I'm always happy to give someone a promotion.

Thank you for being here, and thanks for your comments on the democracy issues, although I don't think that's probably an area of your expertise as a professor of law.

Ms. Mathen, do you agree with the federal government's position that civil law is an important part of the country's legal system and that Quebec judges of the Federal Court have a right to sit on the Supreme Court?

[Prof. Carissima Mathen]

I'm glad to have a chance to clarify, because in fact my colleague and I do not agree on the interpretation of the current section 6.

It is one question whether Federal Court judges bring the kind of expertise that is useful to the Supreme Court from Quebec, and I think that they do. It is another question whether section 6 as drafted, in view of its legislative history, permits Federal Court judges to be appointed under its provisions. That question, my research has indicated, would be answered no.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

It's interesting that there's a difference of opinion between two professors of law from the same law school. It sounds as though there is an interesting class that you could have at law school on this. Maybe it will be an exam question this term.

[Prof. Adam Dodek]

Probably.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

I have a third question.

Ms. Mathen, you mentioned clauses 471 and 472. Would you describe these clauses as ordinary statutory amendments, or are they declaratory amendments? Can you explain the difference between those two? Can you also tell us about the Canada Bread decision and the Supreme Court comments about the use of the declaratory provisions by the Quebec National Assembly in that case?

[Prof. Carissima Mathen]

Certainly. Let me start with the Canada Bread decision.

The Canada Bread decision in fact is a common use of declaratory legislation. It is legislation to respond to an adverse outcome that the legislature wished to overturn. That is within the legislator's powers. Under doctrines of parliamentary supremacy, when the legislature wishes to make that kind of change, it is retroactive.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

So both you and Professor Dodek agree on that point.