Justice Committee on Nov. 21st, 2013

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Do the other witnesses share that opinion?

[Prof. Benoît Pelletier]

No. The situation you are describing is this: a person could have been a member of the bar for 30 years, and become a judge of the Federal Court, the Federal Court of Appeal or the Court of Quebec, as my colleague Mr. Thibault correctly said, and that would exclude that person from being appointed to the Supreme Court. I think it's impossible that that is the legislator's intention. My answer to your question is that the hypothesis seems unacceptable to me.

[The Chair, Conservative, Mike Wallace]

That's it? Okay, thank you.

Our next questioner is Mr. Casey, from the Liberal Party.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

My first question is for Mr. Pelletier.

You are a former minister of Intergovernmental Affairs of Quebec and the author of books on federalism. I would like your opinion on the role of Quebec, of the National Assembly and the ministers in that. Should they play a role in the appointment process? If so, what would that role be?

[Prof. Benoît Pelletier]

Mr. Casey, your question is a very important one. My answer is yes. I think it is even possible for Quebec to have a role in the appointment process of Supreme Court justices without getting the Constitution involved.

When I was minister, I proposed a scenario to the federal Minister of Justice at the time, Irwin Cotler. The scenario was to add Quebec to the current consultation process. We know that there is a whole consultation process and a committee before a judge is even appointed to the Supreme Court. I proposed that Quebec be involved in the current process, that it be able to submit names for the three nominations we're talking about here, that the federal government be able to submit names and that a committee would review them, obviously favouring the names appearing on both lists. I then said that the Government of Canada would continue the process and make the appointment it felt appropriate.

At least allow Quebec to have some say in the process. It seems to me that it would be a feasible, worthwhile progress and, I repeat, it would not require any constitutional amendments. Unfortunately, that didn't happen.

To answer your question about whether Quebec should be part of the process, my answer is yes. I'm not saying that Quebec should appoint judges. I'm talking about being a part of the appointment process for the three out of nine judges that are supposed to have received civil law training.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

[Pierre Thibault]

Allow me, if you will, to go a little further.

I would like to get back to the Meech Lake Accord, which provided that the Quebec government could submit three names when a position became vacant. The Prime Minister of Canada and the federal government would then have been required to choose from those three names. Obviously, we need a constitutional amendment in the prescribed form, but this was in the 1986 Meech Lake Accord.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

Professor Cyr, I want to ask you this question in English, because I want to read the testimony of Professor Dodek and invite you to respond to it.

Last Tuesday, he said this:

It's also highly unusual for a government to, in effect, be challenging its own legislation. I believe this raises the question as to how the Attorney General of Canada, as the legal adviser to the Governor in Council, can both vouch for the legality of clauses 471 and 472 at the same time as he is questioning them in his advice to the Governor in Council directing the reference on the very same subject. The two simply cannot co-exist. Either the government believes that it is within its power to enact clauses 471 and 472, or it is uncertain and requires the advice of the Supreme Court. I believe that this odd state of affairs puts the members of this House in an untenable position. They are being asked to vote in favour of two provisions with the assurance by the government that such provisions are legal, indeed constitutional, while at the same time the government is questioning that very advice by directing a reference to the Supreme Court.

I presume you heard what the minister had to say. What is your reaction, sir?

[Hugo Cyr]

Simply and briefly put, because I know that time is running out, I agree with the statement made by my colleague, Mr. Dodek.

The minister is asked to solemnly state that he believes the provision to be valid. Afterwards, he asks a question as though he doubted its validity. I think it is difficult for someone to doubt and be certain at the same time.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Thibault, I have a more general question for you.

The situation now is that there are only eight Supreme Court justices. I think that situation was predictable. According to you, what lessons should the government draw in this instance?

[Pierre Thibault]

I think that the government should perhaps undertake somewhat more consultation in future. This appointment to the Supreme Court was made, and is now being challenged. To my knowledge, this is the first time such an appointment is challenged. The appointments of Justices Rothstein, Iacobucci and Le Dain, who all sat on the Federal Court of Appeal, were not challenged in the least.

The government itself took the lead by asking for legal advice on the issue, and this advice supported its choice. The lesson to be drawn is that there has to be a little more consultation, and perhaps the provisions of the Supreme Court Act should be clarified. If that act is interpreted correctly, in my opinion, it does allow for the appointment of judges from the Federal Court or the Federal Court of Appeal.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you very much. Thank you for the questions and those answers.

Our final questioner of this panel is Mr. Dechert from the Conservative Party. You have five minutes.

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

Thank you, Mr. Chair.

Thank you you to each of our witnesses for being here.

Professor Thibault, you and many other experts have told us today and in our previous session that the Federal Court is charged with applying civil law and principles to cases that it hears, especially those arising from the province of Quebec. I wonder if you could tell us, in your opinion, what the long-term impact on Supreme Court of Canada decisions would be if we eliminated from the pool of talent for the Supreme Court justices who had served on the Federal Court, applying civil law in the Federal Court and the Federal Court of Appeal on matters arising from Quebec.

What, over time, would be the impact of that kind of interpretation, which seems to be the interpretation the opposition wishes to take?

[Pierre Thibault]

I think we should not exclude judges from the Federal Court of Appeal, nor those of the Federal Court, from potential appointments to the Supreme Court of Canada. I also hope you will remember section 5.4 of the Federal Courts Act during your deliberations. It says the following:

At least five of the judges of the Federal Court of Appeal and at least ten of the judges of the Federal Court must be persons who have been judges of the Court of Appeal or of the Superior Court of the Province of Quebec, or have been members of the Bar of that province.

These judges have practised law during at least 10 years and sit either on the Federal Court, or the Federal Court of Appeal. In my opinion, they are eligible for an appointment to the Supreme Court. I think the best candidates should be appointed to the Supreme Court of Canada. The fact that a person is appointed today to the Federal Court of Appeal after having been a member of the Quebec Bar for 20, 25 or 30 years does not mean that he or she would not be eligible for an appointment to the Supreme Court a year or two later. If that were the case, the Supreme Court would be depriving itself of talented persons.

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

I wonder if I could hear from Professor Pelletier on that issue as well.

[Prof. Benoît Pelletier]

I agree with my colleague that it makes no sense not to allow the judges from the Federal Court or the Federal Court of Appeal to be appointed to the Supreme Court of Canada. Don't forget that even today the federal government and its judges promote bijuralism, which is an approach of law that considers both common law and civil law, so it's not because someone comes from the Federal Court trail or path that this person is not sensitive to the civil law reality that is part of Canada.

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

Do you think potentially the interpretations of the Supreme Court of Canada could be impacted if you didn't have expertise from the Federal Court level from Quebec on the Supreme Court? I'm thinking, for example, of patent law cases, which are litigated before the Federal Court. Many of Canada's largest pharmaceutical companies are located in the province of Quebec, and I'm wondering if they might choose to litigate somewhere else than in the Federal Court, if they could, if they felt that once it got to the Supreme Court there wouldn't be that expertise on the Supreme Court.

[Prof. Benoît Pelletier]

There's an expertise that comes from the judges of the Federal Court of Appeal and the Federal Court, and there's an expertise that comes from any person who had a background in civil law or who has practised civil law for a couple of years and is familiar with civil law. This being said, there is one question that we will have to raise.

Is a judge considered from Quebec when that person resides outside Quebec? This is one of the political problems that surrounds this case, this issue.

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

You would agree that the Federal Court sits in many places, including in Quebec. Sometimes it sits in Quebec and sometimes it sits in other places. Is there any reason to exclude a Quebec member of the bar from the Federal Court on that account?

[Prof. Benoît Pelletier]

No, I agree with that.

All that I'm saying is that when you're in Quebec politics, you take for granted that Quebec has three judges. Even the federalists—the federal federalists and the provincial federalists—say that one of the good things in Canada's federation is that Quebec has three judges out of nine on the Supreme Court of Canada.

Here is one of the questions that I raise. Is a person a judge coming from Quebec if that person does not reside in Quebec or has not resided in Quebec for many years? That's one of the questions I wanted to raise.

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

Okay, thank you.

[The Chair, Conservative, Mike Wallace]

Thank you very much, and my thanks to our witnesses. Professors, thank you for taking the time to come and be with us this morning and thank you for your input.

With that, I am going to take a two-minute suspension to allow our friends to leave and then we'll move to the third part of today's meeting.

[The Chair, Conservative, Mike Wallace]

I call the meeting back to order.

Yes, Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I move that we go in camera.