Justice Committee on Nov. 19th, 2013

[Prof. Carissima Mathen]

This is In the context of Canada Bread. I would note that there are other decisions dealing with the definitions and proper uses of declaratory legislation by the Supreme Court of Canada.

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

Okay.

Can you envision a situation in which a member of the Quebec bar with many years of experience at the Quebec bar was looking at potentially becoming a jurist and deciding whether or not they wanted to choose the path of the Federal Court, which deals with very important legal issues, as I'm sure you would agree with me, or take another route? Would you see that person as potentially deciding that if they went with the Federal Court they would exclude themselves from a future appointment to the Supreme Court? What kind of impact would that have on the ability of the Federal Court to attract the best and the brightest of the Quebec bar to its ranks? What kind of impact would it have on the application of civil law when it comes up in cases before the Federal Court?

[Prof. Carissima Mathen]

It's difficult for me to speculate. A number of factors go into lawyers', and for that matter, academics', musings about possible judicial paths. I really couldn't comment on that.

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

Okay. It might be interesting to hear the opinions of some of the students in the civil law section at the University of Ottawa law school. That's something that no doubt they would consider in their future legal careers.

Thank you both for your answers. I have no more questions.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions.

Thank you, professors, for those answers.

Our next questioner, from the New Democratic Party, is Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I just enjoy too much chatting with them.

Since the session began, the Conservatives have been suggesting that Federal Court judges will never be able to get to the Supreme Court of Canada. As section 6 is interpreted, a person must definitely be a judge of the Court of Appeal of Quebec or of the Superior Court of Quebec, or someone who has been a member of the Quebec Bar for 10 years, That does not preclude the other six positions on the Supreme Court of Canada coming from the Federal Court. Am I mistaken in that?

That interpretation, on which you have been very clear, could be how section 6 must be interpreted. It is recognized by the Government of Quebec and by a number of members of the legal community in Quebec. So it seems to me that we are being a little dramatic in suggesting that federal court judges will be forever excluded from the Supreme Court of Canada.

Am I missing something?

[Prof. Carissima Mathen]

Yes.

I agree with…

Honourable Ian Binnie in his interpretation of section 5.

Section 6 is with respect to three seats on the Supreme Court. There is no bar with respect to other judges from Quebec being appointed.

I think the issue is the difference between the two sections, and the reason section 6 is worded the way it is.... I would also point the committee to section 30 with respect to the appointment of ad hoc judges, which again treats the Federal Court differently for the purpose of the three seats reserved under section 6.

[Françoise Boivin, NDP, Gatineau, QC]

So I am not mistaken. Some people sitting on the Supreme Court of Canada actually do come from the Federal Court. I think we are creating a problem where there is none. They are giving the impression that people from one particular court can never, ever be appointed to the Supreme Court of Canada.

That said, Professor Dodek, you mentioned various possibilities and the fact that it is legal. But, in law, “legal” and “appropriate” are sometimes two different things. We agree on that.

As you mentioned, it would have been more logical for the government to choose one or other of the options, possibly withdrawing the reference. But the problem I see here is that the application from the lawyer from Toronto, Mr. Galati, is still in effect. So the courts are going to have to render a decision about the appointment of Justice Nadon. Of all the measures that the government can take, it is probably the least acceptable, because the Supreme Court will have to make a decision on it one day.

In the circumstances, do you not find the situation that the government's actions have brought about to be a little unfortunate? Does it not somewhat politicize the Supreme Court, a great institution that must be completely separate from Parliament?

[Prof. Adam Dodek]

It is a problem for the Supreme Court of Canada. But Supreme Court justices are dealing with a good number of cases referred by other courts. The fact that only eight judges are sitting on a case is very difficult for the Supreme Court, but it is not a national crisis. The Supreme Court is a very strong institution.

It will be able to survive a delay in the participation of the Honourable Justice Nadon. I don't think that just because there is an uncertainty is sufficient reason to proceed with both the reference and the proposed legislation.

[The Chair, Conservative, Mike Wallace]

Thanks for those questions and answers.

Our next questioner is from the Conservative Party. Mr. Seeback, you have five minutes.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

Professor Mathen, I want to try to understand the logic behind the interpretation you're giving to section 6. What you're doing is effectively trying to interpret the statute, and as we've heard quite clearly, the Federal Court applies and interprets civil law.

You would agree with me on that, yes?

[Prof. Carissima Mathen]

Yes.

[Kyle Seeback, Conservative, Brampton West, ON]

Okay.

When you look at the interpretation of a statute, it's not supposed to be read in isolation in a particular section. Of course, that's a big part of it. Also, you want to look at the scheme and the object of the act itself. So I would say you'd want a logical interpretation of the statute.

You seem to be suggesting that someone who is from Quebec and goes to the Federal Court is going to be barred or disqualified from being on the Supreme Court, or is ineligible.

That's your interpretation of section 6, correct?

[Prof. Carissima Mathen]

My interpretation of section 6 is that it was intended to reserve three seats on the Supreme Court to judges from Quebec courts.

[Kyle Seeback, Conservative, Brampton West, ON]

Right, so not someone from the Federal Court despite the fact that they interpret and apply civil law.

[Prof. Carissima Mathen]

That is my interpretation of the will of successive Parliaments.

[Kyle Seeback, Conservative, Brampton West, ON]

So somebody who has 15 years of Quebec bar experience and then goes to the Federal Court for six months, that person, under your analysis, would be disqualified from sitting on the Supreme Court. Am I correct?

[Prof. Carissima Mathen]

That is a closer question with respect to the currency of the bar membership.

[Kyle Seeback, Conservative, Brampton West, ON]

That's what you're basically breaking it down to: how long you've been a member, or how recently you've been to the bar. Somebody who is away from the Quebec bar, technically, because they're on the Federal Court interpreting civil law for five years, you say that person is not eligible to be on the Supreme Court of Canada for those Quebec seats.

[Prof. Carissima Mathen]

Under the current section 6.

[Kyle Seeback, Conservative, Brampton West, ON]

So five years is too much. What about six months?

[Prof. Carissima Mathen]

It's not a question of five years versus six months. It's a question of interpreting the statute.

[Kyle Seeback, Conservative, Brampton West, ON]

Right. So you interpret it such that if someone who has 30 years of Quebec bar experience, but then goes to the Federal Court for a single day, will be ineligible to go to the Supreme Court of Canada, based on your interpretation of section 6.

[Prof. Carissima Mathen]

My interpretation of section 6, based on the history, is that it has a specific meaning. If the current Parliament disagrees with that meaning, it should amend the statute.

[Kyle Seeback, Conservative, Brampton West, ON]

But you think that's a logical interpretation when taking the statute as a whole, that someone who sets foot in the Federal Court for 10 seconds, despite 30 years of Quebec bar experience, is ineligible. You think that was the intention of the section.