Mr. Speaker, I wish to speak in support of clauses 471 and 472 of the economic action plan 2013, no. 2, which would add declaratory provisions to the Supreme Court Act. These declaratory provisions have been introduced to clarify the criteria for appointment to the Supreme Court of Canada. In particular, the intent of these provisions is to clarify that an individual who was at any time a barrister or advocate of at least 10 years standing at the bar of a province would be eligible for appointment to the Supreme Court of Canada. This would remove any doubt regarding the eligibility of accomplished judges of Canada's Federal Court for appointment to the Supreme Court.
Normally, the purpose of legislative amendments is to enact new provisions or to amend existing provisions to change the outcome of the provisions they replace or amend.
By their very nature, the proposed declaratory provisions will specify the correct interpretation of the law since its enactment. Basically, the wording reinforces the meaning of this law and makes it easier to understand.
The Supreme Court of Canada recently explained the impact of these declaratory provisions. In its 2013 ruling in Régie des rentes du Québec v. Canada Bread Company Ltd., the court stated the following:
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...
In accordance with the purpose of a declaratory provision, clauses 471 and 472 of the bill confirm the fundamental requirement that judges must fulfill to be appointed to the Supreme Court of Canada. According to the current wording, these provisions specify that, the clauses authorize Federal Court justices to be appointed to vacant positions representing Quebec in the Supreme Court of Canada, provided that they have at least 10 years standing as members of the Barreau du Québec.
Consequently, former and current members of the Barreau du Québec will be treated in the same manner as former and current members of the bar of any province. The purpose is to have uniformity and equality for all provincial bars.
The Government of Canada is of the view that there is no doubt that Federal Court judges are eligible to fill any vacancy on the Supreme Court. This view is shared by former Supreme Court justices, the Hon. Ian Binnie and the Hon. Louise Charron, as well as the noted constitutional expert, Professor Peter Hogg.
During its study of clauses 471 and 472, the Standing Committee on Justice and Human Rights also heard evidence from Professor Benoît Pelletier, who was supportive of the government's position. The committee of the other place heard from the former Supreme Court justice, the Hon. Michel Bastarache, who also agreed with the government's interpretation.
Former Quebec minister of intergovernmental affairs and constitutional expert Benoît Pelletier, was very clear about the interpretation:
The interpretation that I believe prevails, or should prevail, when examining the spirit of the provision, is that, essentially, it is sufficient to have been a member of the bar for 10 years. But, one might not be a member today. It would not make sense to interpret the Supreme Court Act as disqualifying from the outset all justices of the Federal Court. It is an interpretation which, in my opinion, does not hold up.
It should be no surprise that so many leading experts agree with the government's view. As the Minister of Justice noted in his remarks to the Standing Committee on Justice and Human Rights regarding these very provisions, Federal Court experience is a strong asset for any candidate to the Supreme Court precisely because the Supreme Court regularly hears appeals from decisions of the Federal Court.
As the members of the House are well aware, judges of the Federal Court have served and continue to serve with distinction on the Supreme Court.
Furthermore, the Honourable Robert Décary, former Federal Court of Appeal justice, recently said, in the October 25, 2013 edition of La Presse, that by suggesting that Federal Court justices with civil law training do not have the civil experience required by section 6, does not take into account the increasing interdependence of Quebec, Canadian and international law.
I know that none of the Federal Court judges who have been appointed to the Supreme Court to date were appointed as members from the courts of Quebec. However, Federal Court judges ought not to be treated differently and excluded from consideration for appointment to the Supreme Court simply because after their many years of practising law in Quebec, they joined the Federal Court bench.
In keeping with the principle of bijuralism, the Federal Court justices must regularly interpret the Civil Code of Quebec when they apply federal laws in areas such as tax, copyright and bankruptcy in deciding matters that arise from Quebec.
However, despite the weight of expert opinion, some have continued to question the eligibility of Federal Court judges for appointment to the Supreme Court, particularly as members of the court from Quebec. In order to resolve this critical issue as soon as possible, the government has referred the matter to the Supreme Court of Canada.
In the meantime, Bill C-4 was determined to be the quickest method of clarifying the Supreme Court Act to guarantee that Federal Court judges can be considered in the process of filling upcoming Supreme Court vacancies, the first of which will arise next year. These declaratory provisions clarify, without making substantive changes to the law, that individuals with at least 10 years at any bar in Canada, including the Quebec bar, at any time during their career would be eligible to sit on the Supreme Court of Canada. Enacting these provisions would ensure that the Supreme Court would have the benefit of Parliament's declared intent of sections 5 and 6 of the Supreme Court Act when it renders its advisory opinion on these reference questions that have been put to it.
For these reasons, I am opposed to the amendment to delete clauses 471 and 472 of Bill C-4.