Official Languages Committee on May 30th, 2017

[John Nater, Conservative, Perth—Wellington, ON]

On a point of order, I don't think the motion is in order, because we weren't debating the actual motion. We were debating the admissibility of the motion, so we weren't actually.... If we were debating the motion, Madam Boucher would have had the floor prior to Madam Lapointe. We're discussing the admissibility of the motion, not the actual motion, so I don't think we can adjourn on the motion until Madam Boucher—

[The Chair, Liberal, Denis Paradis]

If I may, I'll suspend for a few minutes. I just want to consult with the clerk, with your permission.

[The Chair, Liberal, Denis Paradis]

After verification, it appears that the motion to adjourn the debate is in order at this time. I will call the question.

[François Choquette, NDP, Drummond, QC]

Mr. Chair, I would like to ask for a recorded vote, please.

[The Chair, Liberal, Denis Paradis]

It will be a recorded vote. No problem.

That the debate be adjourned.

[François Choquette, NDP, Drummond, QC]

That the debate be adjourned or that the meeting be adjourned?

[The Chair, Liberal, Denis Paradis]

That the debate on the motion be adjourned.

The rest remains on the agenda.

[Darrell Samson, Liberal, Sackville—Preston—Chezzetcook, NS]

We can return to the witnesses.

[The Chair, Liberal, Denis Paradis]

I'm told we can't discuss it.

(Motion agreed to: yeas 5; nays 4 [See Minutes of Proceedings])

[The Chair, Liberal, Denis Paradis]

We are coming back to the agenda.

Mr. Choquette, you have close to three minutes.

[Linda Lapointe, Liberal, Rivière-des-Mille-Îles, QC]

He was up to 15 minutes.

[The Chair, Liberal, Denis Paradis]

No.

You have three minutes left to discuss with the witness, Mr. Choquette.

[François Choquette, NDP, Drummond, QC]

Mr. Jutras, I'm glad to come back and you're not gone.

[Prof. Daniel Jutras]

Welcome back.

[François Choquette, NDP, Drummond, QC]

I have a question for you. We have experts, constitutional experts, Benoît Pelletier and Sébastien Grammond, who do not share your opinion. They make it clear that we can change some aspects of the appointment Supreme Court justices, but not all. Some aspects are essential. They are listed and very clear. For example, in Nadon, which you mentioned earlier—and I studied it, as well—it says specifically that the justices who ruled on this case did not take a position on other aspects; right?

I'll go back to Benoît Pelletier's argument: he asked the members of the committee whether the appointment of a unilingual English judge was an essential condition.

What do you say to that?

[Prof. Daniel Jutras]

That's a sensitive issue.

The fact that there's a disagreement between these two constitutional experts—which I respect very much—and I suggest that a challenge would inevitably be brought before the courts, because it is not an issue that has been decided.

I must admit that I am extremely surprised that Benoît Pelletier is 100% certain that this doesn't require a constitutional amendment. I understand Sébastien Grammond's argument a little differently. I think his analysis is a little more nuanced, and he suggested to you that a reference to the Supreme Court could be a way of testing this issue.

So the short answer to your question is that, in my opinion, the statement you referred to is in the judgment in Nadon, in the reference. As it does whenever there is a reference, the Court has said that it does not rule beyond the question put to it.

The Court has also provided extremely clear language that ties the composition of the Court—one of the elements on which a constitutional amendment is required—to the conditions of eligibility for appointment to the Supreme Court.

We can't ignore the language completely and say that it is not written. We must give meaning to what is written. This is what Sébastien Grammond does. I think he has told you that you have to read that in the specific context of the reference and that this is therefore about the conditions that affect Quebec and the representation of Quebec judges in the Supreme Court. However, even Sébastien Grammond goes a step further by saying that there may be other conditions of appointment that are essential to the functioning of the Supreme Court.

So I ask you the opposite question. Let's say that we're adding conditions for appointments, and that we require, for instance, that there be at all times among the nine judges of the Supreme Court an Aboriginal judge and two minority judges representing the cultural communities and visible minorities in Canada. I'm absolutely convinced that an exercise like this would require an amendment to the Constitution, which affects the composition of the Court.

That's my answer. It's a difficult question.

[François Choquette, NDP, Drummond, QC]

I have little time left, and will stop there.

Thank you.

[The Chair, Liberal, Denis Paradis]

We will move quickly to the last speaker, René Arseneault.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

I'll continue along the same lines as Mr. Choquette.

When I read paragraph 105 of the decision, at least the one I have in front of me, because you quoted an article earlier and—

[Prof. Daniel Jutras]

It's a paragraph from the court's opinion.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Yes, it isn't the same as what I have in front of me, but it's not a big deal.

Since I don't have much time, I'll very quickly quote the one I have here, from the Supreme Court: “... any substantive change in relation to those ... requirements ...”.

[Prof. Daniel Jutras]

Yes.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

We're talking about sections 5 and 6 of the Supreme Court Act.

[Prof. Daniel Jutras]

No, not in the same paragraph.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

No, but that's what we're talking about. I don't want to argue, because I only have two minutes.

Do you think the Supreme Court was really saying that any amendment whatsoever requires an amendment to the Constitution?