Evidence of meeting #5 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was federal.
A recording is available from Parliament.
9:10 a.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Given the decision in the Canada Bread Company Ltd. case, there is no doubt that the federal government clearly has the right to make these declaratory provisions. That case was about an appeal of a judgment in a Quebec case where the Government of Quebec completely eliminated what had been done, using a declaratory provision.
So the government is completely within its rights to do this, correct?
9:10 a.m.
Prof. Adam Dodek
The federal government has the power to pass provisions like the ones in clauses 471 and 472.
They certainly have the power. Whether it is prudent to do so is the issue I raised.
9:10 a.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Of course, Bill C-4 will be voted on in the House.
9:10 a.m.
Prof. Adam Dodek
Yes, the House will vote.
9:10 a.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
The bill may be passed, or it may be defeated. Since there will be a vote, it will be democratic in some measure, will it not?
9:10 a.m.
Prof. Adam Dodek
Yes, but that depends on how we want to characterize democratic.
9:10 a.m.
Conservative
9:10 a.m.
Prof. Adam Dodek
Right.
9:10 a.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
You know that the Federal Courts Act requires a certain minimum number of civil law judges?
9:10 a.m.
Prof. Adam Dodek
Yes, I am aware of that.
9:10 a.m.
Conservative
9:10 a.m.
Prof. Adam Dodek
Yes. On the Federal Court, 10 of the 30 judges must be civil law judges from Quebec. On the Federal Court of Appeal, five civil law judges must come from Quebec.
9:10 a.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
So the Federal Court clearly works with civil law. Since there are 15 civil law judges, they clearly deal with Quebec cases, do they not?
9:10 a.m.
Prof. Adam Dodek
Yes.
9:10 a.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
So all those judges are trained in civil law. Their careers have been in civil law.
The argument is about section 6 of the Supreme Court Act. How can it be that a judge with 20 years of experience in civil law follow by another 20 years of experience as a sitting judge, with 40 years of experience in total, cannot be qualified for a position as a Supreme Court judge?
I am sure you are aware of the opinion written by Justice Binnie, which Justice Charron concurred in, as did Peter Hogg, one of our great constitutional scholars. I take nothing away from you; you are in the same category. However, I have difficulty understanding how a person with so much experience as a lawyer and a judge can fail to meet the criteria in the act.
9:10 a.m.
Prof. Adam Dodek
I agree.
I agree with the propositions you put. Like my colleague, I agree with the conclusions of the Honourable Ian Binnie in his opinion. I agree with your point about how a judge could qualify as a civilist or as a judge from Quebec for the Federal Court but not for the Supreme Court. Certainly my analysis and my conclusion and my belief are that a judge from the Federal Court who was a member of the Barreau du Québec does qualify under section 6 of the Supreme Court Act for nomination and appointment to the Supreme Court of Canada.
9:10 a.m.
Conservative
The Chair Conservative Mike Wallace
Professor Mathen had her hand up. Would you like a response from Professor Mathen?
9:10 a.m.
Conservative
November 19th, 2013 / 9:10 a.m.
Liberal
Sean Casey Liberal Charlottetown, PE
Thank you, Mr. Chair.
Welcome to the witnesses.
My first question for you, Professor Mathen, is with respect to a couple of specifics regarding the language in clause 471. It calls for someone with “standing” at the bar and doesn't require “good standing”.
What are your thoughts on whether perhaps there's a word missing there?
9:10 a.m.
Prof. Carissima Mathen
I would assume that “standing” refers to being qualified by whatever regulations the particular law society entails to the extent that there is in fact a difference between someone who is in standing and someone who is in good standing. That may be something for the committee to consider. That term is not used in the current sections 5 and 6.
9:15 a.m.
Liberal
Sean Casey Liberal Charlottetown, PE
What about the years of experience? Do you have any comments, any perspective on whether the term called for in clause 471 should be consecutive?
9:15 a.m.
Prof. Carissima Mathen
Yes, I would think that they should be, that you would want 10 years’ consecutive experience before a bar in order to qualify.
9:15 a.m.
Liberal
Sean Casey Liberal Charlottetown, PE
The section doesn't call for that now. It just calls for 10 years.
9:15 a.m.
Prof. Carissima Mathen
That's right.