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.