Justice Committee on Nov. 21st, 2013

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

Thank you, Mr. Chair.

Thank you, Minister, for being here today.

You mentioned in your opening remarks the histories of Justices Rothstein and Iacobucci. I happen to know Justice Iacobucci. He was a law professor of mine, and dean of my law school. He was a very well-regarded member of the bar in Toronto, and then was appointed to Federal Court. He eventually made his way to the Supreme Court of Canada. He has one of the best and brightest minds in the legal profession in Canada. I can't imagine how one would ever want to interpret a law to prohibit somebody like that from being elevated to the Supreme Court of Canada.

When we last met, we heard from a law professor from the University of Ottawa who interpreted sections 5 and 6 of the Supreme Court Act to say that a Federal Court justice who had not practised for approximately 10 years would be ineligible for elevation to the Supreme Court of Canada. In answer to a question from one of my colleagues, she admitted that there was nothing logical about that interpretation, but nonetheless, that was her interpretation of the law.

What's your response to that? What would you say about how this provision, if interpreted the way that some people wish to interpret sections 5 and 6 of the Supreme Court Act, would limit the ability of the best and brightest minds from the Quebec bar from serving on the Federal Court and then going on to the Supreme Court?

[Peter MacKay, Conservative, Central Nova, NS]

That is the essence of the question here, Mr. Dechert. Thank you.

First, I agree with the interpretation of your former mentor and professor. What we want to do, I would suggest, as we would in any profession, is to have the broadest pool upon which to draw to get the best talent, the best jurists, the best legal minds, the best intellectual horsepower to serve on our highest court. To my mind, it would be ludicrous to exclude, in one province only, the expansive interpretation of that pool. It would not be giving Quebec the ability to compete on an equal footing in providing the best, the brightest, the most capable to serve in that capacity.

We know there are three positions reserved specifically for Quebec. They already hold a unique position when it comes to their inclusion. So why, in any world, would we want to limit, in some way, their ability to draw upon the best minds to serve in that capacity?

Keep in mind, we are talking about individuals who have not left the practice of law. If we are going to get specific, we're talking about an individual who served for 20 years as a practising member of the Barreau du Québec and then an additional 20 years as a jurist at the Federal Court. That includes the practice that very often touches upon the civil law, so they don't stop being Quebec practitioners by virtue of having joined the Federal Court. They continue to have reach into the practice of law, albeit as a jurist as opposed to an advocate.

What we're doing here is ensuring that Quebec is on an equal footing, and has equal ability to draw from the greatest pool of talent in the province when it comes to the Supreme Court of Canada.

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

Thank you, Minister.

You have mentioned that the Federal Court deals with civil law. Perhaps you would expand on that and give us your view on how the interpretation of civil law by the Federal Court might suffer if members of the Quebec bar who aspired to the Supreme Court of Canada might choose not to accept an appointment to the Federal Court.

[Peter MacKay, Conservative, Central Nova, NS]

You raise an interesting point, Mr. Dechert. If the challenge that's been presented by a Toronto criminal lawyer trying to block the ascendency of a Quebec lawyer/jurist were to succeed, this could have a very negative influence on how future talented lawyers would chart their career course. If they thought they would never be able to become a Supreme Court judge if they accepted an appointment at the Federal Court level, we would be depriving two courts of the greatest pool of talent.

I would suggest that what we are doing here is an attempt to keep the large talent pool open for the Supreme Court and also for the Federal Court. Federal Court jurists, both Court of Appeal and the Federal Court, currently draw on the talent available in the Quebec bar, currently have members who have practised law in the province of Quebec, and have successfully translated that into the Federal Court judicial system and brought with them the experience, knowledge, talent, and ability to understand and interpret the civil law.

Again, I say for emphasis, when you want the best minds, legal excellence, and merit to prevail, you want to draw it from the largest pool. I would suggest to you that the province of Quebec should be treated like every other province in that regard.

That's what this legislation ultimately attempts to do.

[The Chair, Conservative, Mike Wallace]

Thank you, Minister.

Our next questioner, from the New Democratic Party, is Madam Péclet.

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

Minister, bear with me here. Could you keep your answers as short and concise as possible? This is a matter of great importance, and I have lots of questions for you.

That said, you are indeed talking about judges of great intelligence and talent, but why not respect the wishes of Quebec? How is it that you chose someone who was not one of those recommended by the Government of Quebec?

Did you consult the minister, who said that this choice was not one of his recommendations. Did you consult the Government of Quebec before making the appointment? Did you just decide to ignore Quebec's requests?

[Peter MacKay, Conservative, Central Nova, NS]

We had, I think, a very capable and intelligent person giving us input and recommendations on this particular decision. She is seated right next to you. Quebec was very ably represented in this process of judicial recommendation. I'm talking about the member who is right there with you, and she gave input. I believe she is a practising member of the Barreau du Québec. I would suggest that as a government we've taken the decision to open this process up, as no other government has in the history of Canada when it comes to the consultation and inclusion of others. So to that extent Quebec had a voice on the selection committee, which is not the way it used to work. It used to be done in a much more secretive and exclusive fashion in the past.

[The Chair, Conservative, Mike Wallace]

Ms. Boivin, you have the floor.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you for throwing that door wide open for me, Mr. Minister. I take from it that you are revealing confidential information. I hope you are not claiming that I recommended your candidate. If you are, I will have a few things to say on the subject. Yes, one committee member comes from Quebec. Be that as it may, it does not answer my colleague's question.

My colleague asked a question. Through its minister, the Government of Quebec stood up in public and said something no one knew, that the person you appointed was not on the list of people that Quebec had recommended. Could you please explain to the committee why you did not follow the recommendations of the Minister of Justice for Quebec, one of the people you consult as part of your process?

[Peter MacKay, Conservative, Central Nova, NS]

Madame Boivin, you've been a part of this process. That's no secret. You've commented publicly on the fact that you were a part of this process. So I don't think I'm making any disclosures that put your protection in question.

You would also know that this is the process that has been followed and that we as a government have in fact expanded the process to include the hearings, in which you were participants, in which the justice in question, Justice Nadon, presented himself here and sat in this very chair and answered questions from yourself and members of this committee.

So to that extent I would suggest our government has gone farther in terms of the consultation including—

[Françoise Boivin, NDP, Gatineau, QC]

Minister, you are not answering about the recommendation of the Government of Quebec. Your nominee is not part of the four recommended by the Minister of Justice. That's what he said publicly. So the question was about this.

That being said, are you aware of anybody other than the nominees who came from the Federal Court that you mentioned—like Iacobucci and Rothstein, still on the court—are you aware of any of these justices who came to the Supreme Court, but to be in one of the three seats for Quebec?

[Peter MacKay, Conservative, Central Nova, NS]

With respect to the Federal Court?

[Françoise Boivin, NDP, Gatineau, QC]

Yes.

[Peter MacKay, Conservative, Central Nova, NS]

Not in the province of Quebec, no.

[Françoise Boivin, NDP, Gatineau, QC]

Excellent.

Do you consider—

[Peter MacKay, Conservative, Central Nova, NS]

By the way, just because the justice minister or even the premier of Quebec disagrees with me, that doesn't trouble me.

[Françoise Boivin, NDP, Gatineau, QC]

No, no that's—

[Peter MacKay, Conservative, Central Nova, NS]

We followed the process. In fact we expanded the process.

[Françoise Boivin, NDP, Gatineau, QC]

I kind of suspected that. That'll be interesting.

That being said, Minister, you talked about expertise outside in response to a question from Mr. Goguen or Mr. Dechert; I don't remember who. Which expertise outside? You mentioned it vaguely, but you didn't say we know about the Binnie report, we know about Charron and Professor Hogg. Who else?

[Peter MacKay, Conservative, Central Nova, NS]

Those are pretty expert minds.

[Françoise Boivin, NDP, Gatineau, QC]

I simply want to know, I don't want to play games with you. I only want to know. Are there others that we should be aware of, or is that the extent of it?

[Peter MacKay, Conservative, Central Nova, NS]

Madam Boivin, you're playing alone if you're playing a game here.

I'm suggesting the greatest pool of talent from Quebec, and the expert minds that are available, in consideration of the broadest number of people who are eligible with tenures, having served on a court--the Federal Court and the Federal Court of Appeal in this instance. I'm suggesting that we want to be able to include the greatest number.

[Françoise Boivin, NDP, Gatineau, QC]

I understand what you're doing. I'm saying other expertise that you went to.

The answer is no, I guess.

[The Chair, Conservative, Mike Wallace]

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

Our next questioner from the Conservative Party is Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Chair.

Listening to the argument that was being put forward by my colleague, Madam Boivin, with respect to the comments or the opinion of the justice minister of Quebec, she seems to be suggesting that the federal government should surrender its jurisdiction on appointments to the Supreme Court of Canada based on the opinion of the justice minister of the province of Quebec.

What do you have to say about that?