Justice Committee on Nov. 19th, 2013

[Prof. Carissima Mathen]

It's not a question of logic; it is a question of the provision understood within its broader historical context.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions.

I like to watch lawyers argue. It's great.

Our next questioner is from the NDP, and it's Monsieur Jacob.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you, Mr. Chair.

As I understand it, according to your expertise, section 6 historically applies specifically to judges from Quebec. Is that not in order to preserve the specific presence of the Civil Code on the Supreme Court of Canada? Yes or no?

[The Chair, Conservative, Mike Wallace]

Who did you want to answer the question, Monsieur Jacob?

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

The question goes to either one of you or to both.

[Prof. Adam Dodek]

In my opinion, the purpose of section 6 is to have judges from Quebec with expertise in civil law. The goal of the section is not necessarily to have a judge who comes from Quebec, but to make sure that there is civil law expertise on the Supreme Court of Canada.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you.

Do you agree with that position, Ms. Mathen?

[Prof. Carissima Mathen]

My interpretation of section 6 is that it is to ensure sufficient expertise on the Supreme Court to deal with questions involving Quebec civil law.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you, Ms. Mathen.

Is it appropriate to ask the justices of the Supreme Court of Canada to take a position on the future of potential colleagues of theirs?

That question goes to either Mr. Dodek or Ms. Mathen.

[Prof. Carissima Mathen]

The Supreme Court is charged with answering questions of national interest. The Supreme Court, in fact, has taken steps to assure the public that it is considering the issue impartially. I don't envy those judges and the task that is before them, but I have confidence that they will perform that task.

[Prof. Adam Dodek]

I would add that in normal circumstances you have the principle of a judge should not be a judge in his or her own cause. Clearly, the reference asks the court to interpret matters that will have an effect on it.

However, the exception to that rule is the doctrine of necessity: when there is no other place to go, then there is no other place that the government could have directed this reference to. There is no substitute court in this circumstance.

There are circumstances where judges, under the doctrine of necessity, have no choice but to rule on matters that affect them, and this is certainly one of those cases.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

I have one last question. Since Bill C-4 provides the answer that the government wants to hear, are they not politicizing the Supreme Court, which should be neutral, or at least surround itself with an appearance of neutrality?

[Prof. Adam Dodek]

I've stated before that I don't think it's prudent for the government to both enact legislation and direct the reference to the court. I think it puts the court in a difficult situation because of the question that we just responded to previously. The court has no choice but to deal with this issue.

It is a difficult position for the court to be in, one that they, as I said, will eventually come out of. It won't damage the court as an institution, but it was certainly avoidable.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you.

Do you want to weigh in on that question, Ms. Mathen?

[Prof. Carissima Mathen]

It is difficult to divorce law from politics in many cases. I think the Supreme Court of Canada does an admirable job in treating legal issues as such.

I regret the current state of affairs, given that the government expressed awareness of this in the summer, that there was a potential issue with the Supreme Court Act. It is unfortunate that we find ourselves in the current position of having appointed someone, sworn them in, and then putting to the Supreme Court a question about their eligibility.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you, Ms. Mathen and Mr. Dodek.

Thank you, Mr. Chair.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Thank you for those answers. Thank you for the questions. I have an understanding that the Conservatives have no more questions. We have one last slot, and the last questioner will be Madame Péclet for five minutes.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you very much, Mr. Chair.

My thanks to the witnesses for being here.

My goal is to become a lawyer one day. I have never set foot in the Federal Court of Canada, but I hope that, one day, I will be able to be appointed a Supreme Court judge.

I would like to deal with two quite important matters, and that will perhaps allow you to clarify some things.

In the English version of the bill, the proposed addition of section 5.1 uses the words “barrister” and “advocate”, whereas the proposed addition of section 6.1 uses the word “advocate” only. There is a distinction.

What categories of people do these two proposed additions include? Why is there a difference between proposed addition 5.1 and proposed addition 6.1?

[Prof. Carissima Mathen]

It comes from a historical division of functions between people called to the bar in the common law system, between barristers and solicitors. The term now is “barristers and advocates”, but it all refers to qualified members of the bar.

[Prof. Adam Dodek]

I would simply add that in Quebec the term “advocates”,

…the French word “avocat” is used as the equivalent of the word

“lawyer”, or in common law provinces you often see “barrister and solicitor”. I believe that is why clause 471, which would apply to all appointments to the Supreme Court, uses the term “barrister or advocate”, and clause 472, which only applies to Quebec, only uses the term “advocate”, because the term “barrister or solicitor”, in my understanding, is not generally used in Quebec.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

As much as we know the courts have deference for some decisions of the administration, you touched a point on interference between the Supreme Court and the government because of the fact that right now they are asking questions about whether or not and how to proceed on modifying the legislation, yet they perceive that they do not even know if it's the right way or not. Maybe you could elaborate on your point.

Ms. Mathen, you're welcome to answer, but Mr. Dodek, you touched on the particular point that whether or not it is legal, the government has to have some deference for, or at least not to interfere with the courts' and judicial system's independence about whether or not or how they should proceed.

[Prof. Adam Dodek]

My point is simply this. The Attorney General of Canada and the Minister of Justice of Canada in his role as the legal adviser to the Governor in Council, when this bill would have been introduced...to vouch to the Governor in Council that the contents of it were legal, that the Parliament of Canada has the power to enact this legislation, and then, at the same time as the legal adviser to the Governor in Council directing the reference, the Attorney General of Canada signed his name to a reference question that questions the very own jurisdiction and power of Parliament to enact this legislation. That is simply inconsistent, and it is problematic.

[Prof. Carissima Mathen]

I would add that the Supreme Court has, in other cases, refused to answer reference questions in circumstances where the court felt the issue was moot, it was not ripe, it had been put forward in circumstances that might contribute to uncertainty. That led to the Supreme Court refusing to answer a question in the same-sex marriage reference. I have written about this, and written about some of the problems of uses of the reference function in a way that actually puts the court in a difficult position, and this may be one such case.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions.

Thank you to our witnesses. We appreciate your coming this morning and hope this wasn't cruel and unusual punishment that I'll be getting charged with, and back to school for you.

Thank you very much for your input.

For the committee's knowledge, for the first hour on Thursday, Minister MacKay will be here. Take note that we will meet at Queen Street on the seventh floor. The reason for that is we couldn't get the big rooms since there is a state visit and everyone is being bumped out of there. I don't know what it is, but that's what's happening. We have three witnesses after that, and then we have a half hour set aside for discussion of whatever recommendations come from this committee.

If you have recommendations, I ask they be in both official languages. If you have amendments that we can do, we will do them on the floor because we are not doing clause-by-clause study. It's recommendations back to the finance committee.

With that, thank you very much. Thank you for joining us this morning.

The meeting is adjourned.