Justice committee  I would simply add that in Quebec the term “advocates”, …the French word “avocat” is used as the equivalent of the word “lawyer”, or in common law provinces you often see “barrister and solicitor”. I believe that is why clause 471, which would apply to all appointments to the Supreme Court, uses the term “barrister or advocate”, and clause 472, which only applies to Quebec, only uses the term “advocate”, because the term “barrister or solicitor”, in my understanding, is not generally used in Quebec.

Justice committee  My point is simply this. The Attorney General of Canada and the Minister of Justice of Canada in his role as the legal adviser to the Governor in Council, when this bill would have been introduced...to vouch to the Governor in Council that the contents of it were legal, that the Parliament of Canada has the power to enact this legislation, and then, at the same time as the legal adviser to the Governor in Council directing the reference, the Attorney General of Canada signed his name to a reference question that questions the very own jurisdiction and power of Parliament to enact this legislation.

Justice committee  In my opinion, the purpose of section 6 is to have judges from Quebec with expertise in civil law. The goal of the section is not necessarily to have a judge who comes from Quebec, but to make sure that there is civil law expertise on the Supreme Court of Canada.

Justice committee  I would add that in normal circumstances you have the principle of a judge should not be a judge in his or her own cause. Clearly, the reference asks the court to interpret matters that will have an effect on it. However, the exception to that rule is the doctrine of necessity: when there is no other place to go, then there is no other place that the government could have directed this reference to.

Justice committee  I've stated before that I don't think it's prudent for the government to both enact legislation and direct the reference to the court. I think it puts the court in a difficult situation because of the question that we just responded to previously. The court has no choice but to deal with this issue.

Justice committee  It is a problem for the Supreme Court of Canada. But Supreme Court justices are dealing with a good number of cases referred by other courts. The fact that only eight judges are sitting on a case is very difficult for the Supreme Court, but it is not a national crisis. The Supreme Court is a very strong institution.

Justice committee  I'm the vice-dean of research in the common law section. I don't want to—

Justice committee  That's very generous of you.

Justice committee  Probably.

Justice committee  As I've stated publicly before, I think the best options that respect both the work of the House of Commons as well as the work of the Supreme Court would be for the government either to proceed by legislation, as you have before you in clauses 471 and 472, or to direct a reference to the Supreme Court, not both at the same time.

Justice committee  Yes, you certainly could do that.

Justice committee  A number of possibilities would be in the hands of the members of this committee as to how they wish to proceed. As I've said before, I don't believe that these clauses are the proper subjects for a budget bill. I would support a recommendation that they be hived off into a separate bill; or there is no need to proceed with them, to take them out of the budget bill completely, given the reference that is pending before the Supreme Court; or the committee could decide to recommend to the government to withdraw its reference to the Supreme Court in light of the recommendation by this committee to adopt these amendments.

Justice committee  Exactly. In my opinion, the problem is in the form.

Justice committee  The federal government has the power to pass provisions like the ones in clauses 471 and 472. They certainly have the power. Whether it is prudent to do so is the issue I raised.

Justice committee  Yes, the House will vote.