Justice Committee on Nov. 21st, 2013

[Peter MacKay, Conservative, Central Nova, NS]

That will not happen.

[Kyle Seeback, Conservative, Brampton West, ON]

Okay, that's a succinct answer.

From my review of the testimony this committee has heard—other than one constitutional professor who came here on Tuesday and suggested that the interpretation of section 6 was such that a person who had 30 years of Quebec bar experience, who spent a day on the Federal Court or the Federal Court of Appeal would be excluded from sitting on the Supreme Court or being appointed to the Supreme Court—do you know of any other opinions, other than that, which would suggest that is a correct interpretation, and one that she readily admitted was not logical?

[Peter MacKay, Conservative, Central Nova, NS]

Not only is it not logical, to go back to the very principle here, it would be exclusionary, only for the province of Quebec.

Madam Boivin makes a good point that while this, for the province of Quebec, may be without precedent, when it come to prior examples of judges having served on the Federal Court and then going to the Supreme Court of Canada, we have judges from outside Quebec, who we've mentioned, who have followed that ascendancy.

I would suggest--it's my opinion--that it would be discriminatory to suggest that judges from the Federal Court who come from the province of Quebec should be excluded from that, when you already have precedent that a judge from Ontario, a judge from Manitoba, has followed that track to the Supreme Court. To say that simply because the person is from Quebec and was on the Federal Court, they are not allowed to serve on the highest court in the land.... To me, that and the example provided by that professor who suggested that the one day that you served on the Federal Court suddenly becomes a barrier for a Quebec jurist, an eminent individual, to go to the Supreme Court of Canada, creates more than an anomaly. In my view, that creates a very prejudicial effect for lawyers from Quebec.

[Kyle Seeback, Conservative, Brampton West, ON]

She seemed to be suggesting that this was the original intent of Parliament when they enacted those sections.

[Peter MacKay, Conservative, Central Nova, NS]

I disagree with that interpretation, and that's why we're seeking clarity both through legislation and from the Supreme Court of Canada. This dual-track approach, I think, will leave no dispute and no misinterpretation in the future. And there will be future appointments, to come back to Mr. Casey's point.

Obviously, the law and the precedent will be there for future appointments, as is the case with most legislation.

[Kyle Seeback, Conservative, Brampton West, ON]

There's an old legal phrase that suggests that if you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither the facts nor the law on your side, pound the table.

[Some hon. members]

Oh, oh!

[Kyle Seeback, Conservative, Brampton West, ON]

What we seem to be hearing a lot from the members on the opposite side are complaints about the process. It's a process question. As Mr. Casey was saying, it's in a BIA therefore it's terrible, and some of the same things from members of the NDP.

Do you think you've won the argument when you're effectively arguing about process?

[Peter MacKay, Conservative, Central Nova, NS]

Look, that may well be. The fact remains that we want to expedite the process and get the result, and the result means having a full complement of judges.

There are only nine judges. They have a tremendous workload. There are tremendously important cases, including a Senate reference that you're aware of, for which we want to have, and pardon this expression, but all of the horses in harness pulling and doing the work that we've asked of them. They're currently short-handed. The reason that we put this declaratory provision in the BIA was to do it as quickly as possible. As you know, our legislation is denoted with numbers. This is Bill C-4, meaning this was the fourth bill brought before Parliament in this session. It was the earliest opportunity that we could bring this matter before the House of Commons, and ultimately the Senate.

That was the path we chose. Could it have been done in a stand-alone way? Yes. It probably would have taken longer. This was a way to expedite this process, ultimately get what we think is a very straightforward decision, a similar decision from the court. Then this Supreme Court justice, this very eminently qualified individual, will take his place on the bench and they can get on with their very important work with all of the judges in place.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

That's your time, I'm sorry.

Mr. Seeback, thank you for those questions, and thank you for those answers, Minister.

Our final questioner on this—we'll go a little bit past the time because we started a few minutes late—is Madam Péclet, from the New Democratic Party, and I believe she's sharing her time with Mr. Jacob.

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

Thank you very much, Minister.

It is important to realize that the question is not about the competence of the judges on the Federal Court or the Federal Court of Appeal. As you have said, we know that Federal Court judges who were appointed under section 5 are sitting on the Supreme Court as we speak.

It is important to realize that six people can be appointed to the Supreme Court under section 5, while section 6 is a little different. Has an appointment of this kind been made under section 6? You are saying that, basically, section 6 is no longer needed and that all judges can be appointed under section 5.

Are the three judges from Quebec appointed under section 6 or section 5?

[Peter MacKay, Conservative, Central Nova, NS]

Both, les deux. It's always been my feeling, and this is my interpretation, and I guess my right, as the Minister of Justice, to read them inclusively, the two sections together, 5 and 6 together.

[The Chair, Conservative, Mike Wallace]

Thank you.

Monsieur Jacob.

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

Thank you, Mr. Chair.

Mr. Minister, thank you for testifying before us.

As the Minister of Justice of Canada, could you tell us how you see the spirit and the letter of section 6 of the Supreme Court Act, which deals specifically with Quebec judges? Doesn't this section seek to maintain the distinctiveness of the Civil Code within the Supreme Court, as a number of experts have said?

[Peter MacKay, Conservative, Central Nova, NS]

Yes, section 6 deals specifically with the province of Quebec, but section 5, in my view, must be read together with section 6. So subsections 5.1 and 5.2—

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

I am asking what your view of section 6 is.

[Peter MacKay, Conservative, Central Nova, NS]

My vision, sir, is to ensure that the province of Quebec is treated exactly the same as every other province and territory when it comes to their right to have members from the barreau or members of the bench join the highest court of Canada. Section 6, as you know, sets out a very special provision that provides for Quebec's inclusion. But it has to be read with section 5 because, again, for parity, for fairness, for clarity, we want Quebec to be treated identically, other than the special provision that reserves three places for Quebec judges on the Supreme Court of Canada. That is the special inclusion for Quebec, that three of the nine positions are reserved.

Three positions are reserved for the province of Quebec.

In terms of the skills of judges, it is important to use the same approach for all judges in Canada from all the provinces, including Quebec.

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

Thank you, Mr. Minister.

Are you politicizing the Supreme Court of Canada by putting the answers you want to hear into Bill C-4? Are you aware that you are not complying with the separation of powers? The basis of our entire democratic system is now at stake.

[Peter MacKay, Conservative, Central Nova, NS]

Not at all. It is the law. The federal government has the prerogative to introduce bills. It is clear.

It is the right of the executive branch of government to present legislation. In this case, we're not presenting new legislation, we're simply seeking a declaratory provision that reinterprets or puts words in place that ensure that the original intent of the legislation is correct.

At the same time, it is of course always the prerogative of the government to seek an interpretation from the Supreme Court of Canada as we have done on other matters, including the Senate most recently. So we're following two paths for maximum clarity and expediency by bringing it forward in this forum.

[The Chair, Conservative, Mike Wallace]

Mr. Jacob, you have time for one question.

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

Go ahead, Ms. Péclet.

[The Chair, Conservative, Mike Wallace]

Sorry.

Madame Péclet. Go ahead.

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

You are saying that it is the right of Parliament to introduce a bill and, at the same time, to ask the Supreme Court if the bill is constitutional and valid. If the Supreme Court overturns the government's decision on the grounds that the bill introduced by the government and passed by Parliament is not valid, are you going to listen to the Supreme Court and respect its decision?

[Peter MacKay, Conservative, Central Nova, NS]

I have confidence in our position. Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions.

Minister, thank you for joining us for this first hour this morning. We appreciate you answering all the questions.

We're going to suspend now for just a couple of minutes until we get our next panel in place.