Thank you, honourable members.
My presentation will basically cover two types of issues. First, I will look at the interpretive issues. I will look at the meaning of the act before the bill being discussed is passed, as well as the possible meaning of the act should the bill be passed. I will then look at the constitutional issues that may arise from this proposal. I will cover two aspects. The first one is the possibility that the bill discussed here is an amendment to what section 41 of the Constitution Act, 1982, calls the composition of the Supreme Court. The second is the possibility that proposing the amendment to the Supreme Court Act in a budget bill undermines the constitutional principle of a democratic parliamentary system recognized by the Supreme Court in the New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) case.
In case I run out of time, I will provide you with my three recommendations before I start my analysis.
Conditional to my second and third recommendations, my first recommendation is to be more explicit in this provision in order to state more clearly the declaratory nature of those provisions. The main reason for this recommendation is that a declaratory piece of legislation or provision is possible, but it is not assumed. Courts require declaratory provisions to be very clear in order to be able to use them. For instance, it should say “this is declaratory provision”, or use the past and present tenses to say something along the lines “this was and still is the case”.
My second recommendation is the following. Since it is possible that the amendments proposed are covered by section 41 of the Constitution Act, 1982, which means that the consent of the provinces may be required, it would be wiser to obtain the consent of the provinces before proceeding. If section 41 does not apply to the provision, there is no issue. However, if it does and it is found to be unconstitutional, it would be a major risk to appoint a judge to the Supreme Court using unconstitutional procedures, and it is not really clear what the next step would be. It would not be possible to dismiss a judge, because it wouldn’t be a question of misconduct.
Here is my third recommendation. Since the provisions are in the budget bill, there is a risk that the Supreme Court would have to look into the procedure used to adopt the declaratory provisions when it receives the reference of appointment for Justice Nadon. Since the Supreme Court might need to determine the constitutional validity of the procedure to include disparate provisions in the same act, and since the Supreme Court might find those provisions invalid, it would be wise to pass the provisions in question in a separate legislative instrument.
Let’s turn to the interpretive issues right away. I will not spend a lot of time on section 5. I share the interpretation of Justice Binnie, who was my mentor. I was also his clerk in 1999. As a result, I have a lot of respect for his opinion. Furthermore, my opinion on section 6 is different from his.
I would simply like to point out something about section 5 that has not been discussed. There is this presumption in law that the legislator does not speak for nothing. As members of Parliament, you fully understand the essence of this principle. However, when you read section 5, you might get the impression that, to be appointed, a person must have either been a judge on the Superior Court or on the Court of Appeal, or a member of the bar of a province for 10 years.
It would seem redundant to say that you need to have been a Superior Court or Court of Appeal judge, if being a member of the bar for 10 years is a necessary criterion for being a member of the Superior Court and Court of Appeal. But the requirement of being a member of the bar for 10 years to be appointed to the Superior Court and the Federal Court appeared only in 1912, 40 years after the Supreme Court Act was adopted. It originally set out a 10-year requirement. That requirement was entirely logical. At the time, when we adopted the predecessor to section 5, which required 10 years at the bar, you could be a Superior Court judge who did not have 10 years of experience at the bar. So it was not redundant.
The title of section 6 is another aspect that has often been overlooked. Section 6 is not aimed at the representation of civil law judges. The official title of the provision is “Représentation du Québec”. It is important to know that section 6 does not establish a maximum number of judges from Quebec. Instead, it qualifies section 5, meaning that to be qualified under section 6, titled “Représentation du Québec”, you must first be qualified under section 5. Therefore, the maximum number of civil law judges isn't three. Let's keep in mind that the Supreme Court had five judges in the 2000s that came from the civil law tradition. Justice Arbour and Justice Bastarache, both graduates in the same class from the Université de Montréal, had civil law training and were not from Quebec.
In fact, section 6 covers representation in Quebec. The legal criterion that judges should consider for the qualification involves reviewing particular skills. For example, the individual studied civil law, but is he or she familiar enough with civil law to qualify? It's a very difficult criterion to meet. We are arriving at clear, fixed and objective rules. The clear, fixed and objective rule that was adopted here is that you need to be a member of the Quebec Bar, a member of the Superior Court of the province or a member of the Quebec Court of Appeal.
This doesn't mean that a Federal Court of Appeal justice from Quebec, for example, could be appointed to the Supreme Court; it is just that he could not be considered a judge under section 6.
Basically, no matter how section 6 is interpreted, a risk remains. There is a dispute, as the minister mentioned. Therefore, adopting a declaratory provision could solve that problem. A declaratory provision is different from an interpretive provision. An interpretive provision is only predictive, while a declaratory provision is retroactive, where there is no presumption that a provision is declaratory. That is why I suggest you clarify the declaratory nature of the provision.
During the question period, I can come back to the issues involved in the possibility for Parliament to unilaterally amend the composition of the court in the Supreme Court Act. I would be pleased to go into more detail about the constitutional issues that were raised to a lesser degree by my colleague, Adam Dodek, during his remarks. I think he raised constitutional issues that are more serious than he let on in his presentation.
Thank you.