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.