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.