Justice Committee on Nov. 21st, 2013

[The Chair, Conservative, Mike Wallace]

Colleagues, I'd like to call this meeting back to order.

I want to thank our next panel of guests for joining us. At the table we have Professor Pelletier, full professor in the Faculty of Law at the University of Ottawa. We also have Monsieur Thibeault, a professor and assistant dean and counsel to the civil law section at the University of Ottawa.

Mr. Cyr is here. He is a professor of public law in the Faculty of Political Science and Law at Université du Québec à Montréal.

Professor Pelletier, go ahead, please. You have 10 minutes.

[Prof. Benoît Pelletier, Full Professor, Faculty of Law, University of Ottawa, As an Individual]

Thank you, Mr. Chair.

Thank you for having me here today, hon. members.

I would first like to say that, from a legal and constitutional perspective, I am convinced that sections 5 and 6 of the Supreme Court Act must be read together, meaning that they must be read in connection to each other. Furthermore, I am convinced that we must look at both the English and the French versions of section 5 and section 6. Clearly, I am talking about the sections of the Supreme Court Act.

Grammatically, I note that section 5 talks about judges that must be appointed “parmi les avocats inscrits pendant au moins dix ans au barreau d'une province”. The word “inscrits” can be interpreted in two ways: either as referring to the lawyers currently standing at the bar of a province or referring to lawyers who have already stood at the bar of a province. In itself, the word “inscrits” as written can take on either of the two meanings. It can either refer to the current situation or the current form, or to the previous form or a past situation.

Furthermore, the French version of section 5 uses the word “pendant”. It says that judges must be appointed “parmi les avocats inscrits pendant au moins dix ans au barreau d'une province”. It does not say “depuis au moins dix ans”. If it had said “depuis au moins dix ans”, that would have meant that the judges are to be appointed from among the current members of the Quebec Bar.

Since the word used is “inscrits”, which, as I just said, can have two meanings, either a meaning in the present or one in the past, and since the word “pendant” is used, I feel that the legislator wanted to have, among the appointed judges, some who have previously been members of the bar of a province for 10 years, even though they are no longer members when appointed, and some who are still members of the bar of a province when they are appointed.

When we read sections 5 and 6 together, we get the following result in French. Three judges must be appointed from among the current or former judges of the Superior Court of Quebec or the Court of Appeal of Quebec or from among “les avocats inscrits pendant au moins dix ans au Barreau du Québec”. That takes into account the potential double meaning of the word “inscrits” and the potential meaning of the word “pendant” in our grammatical context.

In English, reading the sections 5 and 6 of the Supreme Court Act together gives the following result.

Three judges shall be appointed from among the people who are or have been a judge of the Superior Court of Quebec or of the Court of Appeal of Quebec and who are or have been advocates of at least ten years' standing in the Quebec bar.

So when we combine sections 5 and 6 and we try to bring the text together, that is what we get. That is what I just read. The English version is a lot more flexible. It suggests that someone who has previously been a member of the Quebec Bar for 10 years can be appointed to the Supreme Court, even though that person may no longer be a member of the bar at the time of the appointment.

The first part of my analysis was more literal or grammatical. In terms of the spirit of the provision, I think it is clear that the legislator never intended to deprive the Supreme Court of the talent, skills and knowledge of the judges from the Federal Court and the Federal Court of Appeal. Nor could the legislator have intended to deprive the Supreme Court of the knowledge, talent and skills of judges of the former Exchequer Court of Canada. Based on the spirit of the provision, I don’t think the legislator wanted to exclude the members from what used to be the Exchequer Court of Canada, which then became the Federal Court and the Federal Court of Appeal.

Furthermore, I will say that, based on the spirit of the provision, it is important that at least three judges on the Supreme Court of Canada be trained in civil law. That is the reason behind having judges who have sat on the Quebec Superior Court or the Quebec Court of Appeal or who are members of the Quebec Bar. The idea is to have at least three civil law judges on the Supreme Court, because civil law cases sometimes come before the court. Right now, five judges on the Supreme Court can make a decision, including three civil law members, who are a majority on the court bench.

The Supreme Court of Canada, described as a general court of appeal under section 101 of the Constitution Act, 1867, hears civil law cases. It was therefore a good idea to have at least three judges with solid enough civil law training to hear civil law cases from Quebec. As a result, the court could rule in those cases with five judges, instead of nine judges, thereby giving the majority to the three judges trained in civil law.

Mr. Chair, I know our time is limited. Furthermore, there will be an exchange with the members of the committee in a few moments. I will end by saying that we cannot interpret these provisions as a requirement to appoint to the Supreme Court only people who have practised civil law or who still practise it. The idea is to appoint people who have been trained in civil law. Also, if we were to appoint only people who have practised civil law on an ongoing basis, we would not be able to appoint criminal lawyers, trade law or maritime law experts, or even constitutional experts, which would be terrible.

We must look for this civil law training, this connection with Quebec for at least 10 years as members of the Quebec Bar or as judges on the Quebec Superior Court or the Quebec Court of Appeal. However, interpreting those provisions as excluding the appointment to the Supreme Court of judges from the Federal Court or the Federal Court of Appeal goes much too far, in my view.

As I just said, that means that the provisions can be interpreted by the Supreme Court of Canada based on the reference it receives, and I think the additions that the Government of Canada intends to make to the Supreme Court Act are not necessary.

I think the Supreme Court of Canada can interpret sections 5 and 6 both grammatically and teleologically as allowing the appointment of judges from the Federal Court or the Federal Court of Appeal to the Supreme Court of Canada. I think this can be done in line with the purpose and spirit of the provision. These declaratory provisions are therefore not necessary. Are they desirable as additional safeguards? That is something we could discuss in a few moments.

[The Chair, Conservative, Mike Wallace]

Our next witness is Professor Thibault.

You have 10 minutes.

[Pierre Thibault, Assistant Dean and Counsel, Civil Law Section, University of Ottawa, As an Individual]

Mr. Chair, hon. members, thank you for inviting me to give testimony before you today on clauses 471 and 472 of Bill C-4.

In order to stay on time, I will first look at the scope of the proposed amendments and then briefly talk about why sections 5 and 6 of the Supreme Court Act cannot be amended on a purely legislative basis.

Last October 22, the Minister of Justice of Canada introduced declaratory amendments to the Supreme Court Act. According to those amendments, a barrister or advocate with at least 10 years standing at a bar can be appointed to the Supreme Court of Canada. In terms of Quebec, barristers or advocates who have been members of the Barreau du Québec for more than 10 years can also be appointed to the Supreme Court. It should be noted that this is not a formal amendment to sections 5 and 6 of the Supreme Court Act, but rather a declaration by the Government of Canada and subsequently by the Parliament of Canada if Bill C-4 is passed. That is how those two sections will be interpreted.

As Professor Pierre-André Côté explains, the legislator sometimes passes declaratory legislation. This is what he says:

No formal constitutional provisions prevent the legislature from at times interpreting its own legislation, although this is in principle the responsibility of the courts. Interpretive or declaratory acts serve “...to remove doubts existing as to common law, or the meaning or effect of any statute”.

Furthermore, it is important to point out that a declaratory piece of legislation applies retroactively. In fact, the Supreme Court of Canada has recently ruled on the Régie des rentes du Québec v. Canada Bread Company Ltd. case. This was in 2013. Justice Wagner, who is from Quebec, wrote the following for the majority:

It is settled law in Canada that it is within the prerogative of the legislature to enter the domain of the courts and offer a binding interpretation of its own law by enacting declaratory legislation... In enacting declaratory legislation, the legislature assumes the role of a court and dictates the interpretation of its own law...As a result, declaratory provisions operate less as legislation and more as jurisprudence. They are akin to binding precedents, such as the decision of a court...Such legislation may overrule a court decision in the same way that a decision of this Court would take precedence over a previous line of lower court judgments on a given question of law. It is also settled law that declaratory provisions have an immediate effect on pending cases, and are therefore an exception to the general rule that legislation is prospective. The interpretation imposed by a declaratory provision stretches back in time to the date when the legislation it purports to interpret first came into force, with the effect that the legislation in question is deemed to have always included this provision. Thus, the interpretation so declared is taken to have always been the law...

Chief Justice McLachlin points out the impact of declaratory provisions. She agrees with Justice Fish on this point, although she disagreed with him in this decision. She says:

I agree with my colleague Wagner J. that the legislature has the power to enact declaratory provisions which have a retroactive effect, and that such provisions apply to all pending cases.

With respect to those who think differently, I feel that Parliament is fully entitled to pass declaratory provisions. In that regard, I think clauses 471 and 472 of Bill C-4 are perfectly valid.

The second issue I would like to address is the amendment to sections 5 and 6 of the Supreme Court Act, the amendment to section 6 in particular.

This section has been amended seven times since 1875, basically because of technicalities, with the exception of the 1949 amendment, which increased the number of judges from Quebec to three. In 1985, when the last amendment was made and when the legislation was revamped mostly with technical amendments, the words “Court of Appeal” replaced “Court of Queen's Bench”. Let me draw your attention to two unsuccessful attempts at making major amendments in 1987 and 1992.

With the advent of the Meech Lake accord in 1987, an amendment to the Constitution Act, 1867 was proposed to incorporate sections 5 and 6 of the Supreme Court Act by adding something about the territories and federal courts. Subsection (1) of the new section 101B stated:

Any person may be appointed a judge of the Supreme Court of Canada who, after having been admitted to the bar of any province or territory, has, for a total of at least ten years, been a judge of any court in Canada or a member of the bar of any province or territory.

Subsection (2) stated:

At least three judges of the Supreme Court of Canada shall be appointed from among persons who, after having been admitted to the bar of Quebec, have, for a total of at least ten years, been judges of any court of Quebec or of any court established by the Parliament of Canada, or members of the bar of Quebec.

This constitutional amendment was supposed to clarify the situation of federal court judges. It also meant that the legislator or the constitutional constituent did not intend to exclude territory and federal court justices from being appointed to the Supreme Court. Unfortunately, this provision never came into force, because the Meech Lake accord was not duly ratified by the legislative assemblies of Newfoundland and Manitoba within the required timeframe.

The same provision was reconsidered in the Charlottetown accord, to no avail. This time it was because of the October 1992 referendum when Canadians and Quebeckers said no.

However, those attempts at amending the Constitution enable us to draw two conclusions about section 6 of the Supreme Court Act.

First, it is not unreasonable to think that this is a constitutional provision. However, we must point out that the doctrine is divided. Professors Peter Hogg and Benoît Pelletier, my colleague, feel that the composition of the Supreme Court of Canada can be amended through legislation by the Parliament of Canada, basically because the Supreme Court Act is not mentioned in the schedule referred to in section 52 of the Constitution Act, 1982.

In their work entitled Droit constitutionnel, professors Brun, Tremblay and Brouillet feel that the composition of the Supreme Court, including the civil law component, is protected under the Constitution. That is also the opinion of Professor Monahan and of Warren Newman, a Government of Canada lawyer who has expressed his personal view in a scholarly article published a few years ago. Mr. Newman's conclusion was that the civil law component of the Supreme Court is protected and that an amendment to section 6 of the Supreme Court Act would require the consent of the 10 provincial legislative assemblies and of the Government of Canada.

As a result, I feel it is accurate to conclude that federal court judges could be appointed to the Supreme Court of Canada. In our view, that is an accurate interpretation, whether teleologically speaking, as my colleague Benoît Pelletier pointed out, or broadly speaking, as a constitutional provision must be interpreted.

I would be happy to answer any questions you may have in the next few minutes.

Thank you.

[The Chair, Conservative, Mike Wallace]

Our next witness is Monsieur Cyr, professor, Faculty of Political Science and Law, Université du Québec à Montréal.

The floor is yours, sir.

[Hugo Cyr, Professor of Public Law, Faculty of Political Science and Law, Université du Québec à Montréal, As an Individual]

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.

[The Chair, Conservative, Mike Wallace]

Thank you.

We'll now go to the questions and answers. Just to let the committee know, we'll likely get only one round in before this time is up, so you may want to share your time. I'll be a little bit flexible on the five minutes, and I'll be fair to every party.

The first questioner is Madame Boivin from the New Democratic Party.

[Françoise Boivin, NDP, Gatineau, QC]

I would like to thank the three witnesses. This is extremely interesting. In fact, it only confirms for me that these are not easy issues.

I'm thinking back to when I was in the Faculty of Law at the University of Ottawa. I salute my alma mater. We have had some extraordinary testimonies in addition to Professor Cyr's. Well done.

Professor Cyr, you spoke about the importance of clarifying the nature of clauses 471 and 472. I'm not going to go back over the fact that they are included in the budget bill, which I have serious problems with. The text on the government's reference to the Supreme Court of Canada states:

…or enact the annexed declaratory provisions as set out in clauses 471 and 472 of the Bill entitled Economic Action Plan 2013 Act, No. 2…

Do you think it's enough to give them this declaratory nature? I'm going to tell you why I'm concerned. I won't be telling you anything new by saying that we sometimes play little games in politics. As clearly as I know my own name, I know that Conservatives outnumber New Democrats in this room. So if it was adopted, could we be telling the Supreme Court on January 15, 2014, that the legislator has spoken and that we are therefore no longer interested in dealing with clauses 471 and 472?

[Hugo Cyr]

Thank you.

The minister's comments make me think that he intends to make these provisions declaratory provisions. I don't think the text is clear enough in that regard.

In this context, the Supreme Court might have to interpret the very nature of these provisions. It might have to determine whether the provisions are declaratory, interpretive or even, as a third possibility, whether they are provisions that retroactively amend the existing law.

If we don't clarify these points, the Supreme Court would obviously have interpretive work to do. However, if the provisions were very clear and there was no doubt that the provisions were declaratory, the court could at least determine that the provisions are declaratory and that the interpretation would bind us as long as other impediments, of a constitutional nature for example, do not render these provision invalid.

[Françoise Boivin, NDP, Gatineau, QC]

The time we have doesn't let us take full advantage of your expertise, and that's too bad, because these are very important issues.

Last Tuesday, I asked the minister the following question, but I didn't really get an answer. According to Professor Dodek, it is problematic that clauses 471 and 472 were submitted to Parliament at the same time as a reference to the Supreme Court of Canada took place. Bill C-4 needs the Minister of Justice's agreement, and it needs to be established that it complies with Canada's constitutional laws and the Canadian Charter of Rights and Freedoms, in particular. At the same time, the minister checks with the Supreme Court to see whether these two provisions are compliance.

Do you think that constitutes a problem?

My question is for all three witnesses. Let's start with Professor Pelletier.

[Prof. Benoît Pelletier]

The answer is no. First, to come back to the main issue of the validity of declaratory provisions, I'll point out, as my colleague Pierre Thibault mentioned, that there has already been a discussion about the issue of whether the Supreme Court Act is constitutional or not. The discussion stems from the fact that the act is not mentioned in the schedule of the Constitution Act, 1982, while subsection 52(2) defines the Constitution of Canada for the purposes of applying constitutional amendment procedures and refers to the legislation and texts in the schedule of the Constitution Act, 1982, where the Supreme Court Act does not appear.

Some might say that the definition of the Constitution of Canada in subsection 52(2) of the Constitution Act, 1982, is not exhaustive, which is entirely true. That is where the debate begins. Some jurists think that the Supreme Court Act should be implicitly added to the definition of the Constitution of Canada. Others, like me, believe that it should not be and that it is not constitutional in nature.

In my opinion, already on the basis of grammatical and teleological analysis, the Supreme Court could find that the current provisions allow for the appointment of Federal Court of Federal Court of Appeal judges. Will it not perhaps want to respond to the issue of the validity of these provisions, given its finding on the interpretation of sections 5 and 6?

Having said that, the risk of the court declaring these provisions declaratory sooner or later seems very slim. I think these declaratory provisions are perfectly in line with the interpretation that should already be given to sections 5 and 6.

Ultimately, we could say that the federal bill is useless, and the risk of the Supreme Court declaring it invalid seems very slim to me, honestly. However, I understand the government's wanting to protect itself and ensure that it is not possibly interpreted in any way other than the interpretation proposed in its bill. I understand, although the risk is very slim.

[Françoise Boivin, NDP, Gatineau, QC]

There is nothing worse than a constitutional expert and former politician to take so much time to answer a question. It's okay; the others may have an opportunity to answer later.

[Pierre Thibault]

I agree—

[The Chair, Conservative, Mike Wallace]

We have to move on, I'm sorry.

Monsieur Goguen.

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

Thank you, Mr. Chair.

I'd like to thank the witnesses for coming here today to give us their interpretation of the issue.

Obviously, Supreme Court judges aren't appointed every day. There is a rigorous procedure that's meant to be inclusive. Consultations take place with the Quebec Bar, the Quebec attorney general, the Quebec justice system and all the courts. Despite all that, the question remains today.

I'd like to come back to Tuesday's evidence. My colleague, Mr. Seeback, asked one of the witnesses, Professor Mathen, a question. Based on her interpretation, someone who had been a member of the Quebec Bar for 30 years and had then been a Federal Court judge for a very short period of time would by that very fact be automatically disqualified and could not be appointed to the Supreme Court.

Is that not somewhat of an absurd interpretation, disqualifying someone of that calibre with that much experience?

[Prof. Benoît Pelletier]

Who is the question for, Mr. Goguen?

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

It's for everyone.

[Pierre Thibault]

I think that is an inappropriate interpretation. Some might call it absurd. I would even add that if we take the content of section 6 of the Supreme Court Act at face value, given that we're talking about Superior Court judges and Court of Appeal judges, that means that the chief justice of the Court of Quebec, the Honourable Élizabeth Corte, could not be appointed to the Supreme Court of Canada. I don't think that's an appropriate interpretation of section 6 of the Supreme Court Act.

[Hugo Cyr]

I disagree with my colleagues' interpretation. Any legislation that establishes an objective standard will provide somewhat curious results in the fringes. Stephen Hawking, one of the world's most brilliant men, did not have the right to vote until he was 18, like everyone else. However, one might say that he was able to do so from the age of 8. Any rule establishing a minimum threshold will in some marginal cases lead to unsatisfactory results.

If the teleological interpretation given is not that of being trained in civil law, there might be some problematic cases. A judge like Louise Arbour, who studied law at the Université de Montréal, and was a civil lawyer at heart and practised her whole life in Ontario, could not be a Supreme Court justice under section 6. The idea is not simply that the judge knows civil law. The provision is titled “Représentation du Québec”. Canada, like the United States, is one of the rare exceptions where the constitutional court, the Federal Court, does not fully and meaningfully consider the federal nature of the entity for which it must render decisions.

If we see the provision “Représentation du Québec” as targeting the objective of representation of one of the federated states in the federation, it is entirely logical to require that person to be somewhat attached to the federated state of Quebec. The presence in the Federal Court—

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

Isn't it strange to consider section 6 in isolation?

[Hugo Cyr]

I don't think—

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

I think the idea behind the interpretation was to consider one section in the context of the entire act.

[Hugo Cyr]

Exactly.

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

The purpose of the act is to select the most qualified people. Ten years at the bar is a minimum in order to exclude people who don't have the appropriate experience. How can a judge with 20 years of experience, who has been at the bar for 20 years, who has significant legal experience be excluded from the Supreme Court of Canada? How is that logical?

[Hugo Cyr]

With all due respect, it is the interpretation that considers the provisions in isolation. I'll tell you why. Section 5 is a minimum condition. Section 6 adds requirements for representatives from Quebec; just the requirements need to be added. Section 5 requires that a judge be a member of the bar of a province for at least 10 years and that judge could have been a judge of any court.