Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 1, Evidence - November 21, 2013


OTTAWA, Thursday, November 21, 2013

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:47 a.m. for the consideration of a draft report; and to examine the subject matter of those elements contained in Division 19 of Part 3 of Bill C-4, A second Act to implement the budget tabled in Parliament on March 21, 2013 and other measures.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Good morning. Welcome, colleagues, invited guests and members of the general public who are following today's proceedings on the Senate Standing Committee on Legal and Constitutional Affairs.

We have a number of matters to deal with this morning. One of our witnesses is not going to arrive, we're told, until 11 o'clock. We can probably deal with items 1 and 2 prior to that.

Item 1 is the consideration of a draft report that outlines the expenses incurred by the committee in the last session. I think you all have it in front of you. Any questions or concerns with respect to this?

Senator Jaffer: I move it.

The Chair: Senator Jaffer moves adoption of the report. Any questions or comments? All in agreement?

Hon. Senators: Agreed.

The Chair: Carried. I will be tabling the report later today in the Senate.

Item 2 is the subject matter we're going to be dealing with.

This is the first meeting of the current Parliamentary session. We're here today to begin our study into the subject matter of Bill C-4, a budget implementation bill. Specifically, the Senate has requested that the committee examine certain provisions related to the Supreme Court Act that are contained in Division 19, Part 3 of the bill.

Our job is to conduct our hearings and then to report our findings to the Senate by November 29, 2013, so that both the Senate and our colleagues on the Finance Committee can consider the evidence and comments that we will gather on this part of the budget bill.

As a reminder to those watching these committee hearings, they're open to the public and also available, via webcast, on the sen.parl.gc.ca website. You can find more information on the schedule of witnesses on the website, under ``Senate Committees.''

To begin our deliberations, I'm pleased to introduce to the committee Paul Daly, Assistant Professor of Law at the Université de Montréal, and Benoît Pelletier, Professor, Faculty of Law, Civil Law Section, the University of Ottawa. Welcome.

We will begin with opening remarks from each witness. Professor Daly, we will begin with you; please proceed.

Paul Daly, Assistant Professor of Law, Université de Montréal, as an individual: Thank you, Mr. Chair and members of the committee, for the invitation to appear before you today. I appear before you this morning in my personal capacity.

The committee is meeting to discuss clauses 471 and 472 of Bill C-4, which insert new sections, 5.1 and 6.1, in the Supreme Court Act.

These provisions are designed to validate, retrospectively, the appointment of Mr. Justice Nadon from the Federal Court of Appeal to the Supreme Court of Canada, and they will open up the so-called Quebec seats on the Supreme Court of Canada to a wider pool of candidates in the future.

I discuss three general issues in my written submissions and will summarize them briefly.

First, section 6 of the Supreme Court Act, which provides that three judges of the Supreme Court of Canada are to be appointed from the Quebec Superior Court, Quebec Court of Appeal or from amongst the members of the Quebec Bar, was designed to ensure that the Supreme Court of Canada has institutional knowledge of Quebec's distinctive legal tradition, the Civil Code. This was the purpose of the drafter of section 6, Toussaint LaFlamme, who introduced the provision in the 1875 debates on the creation of the Supreme Court of Canada. The means of achieving this important goal was to list three sole sources from which the Quebec seats could be filled, to the exclusion of all other sources. This was a policy choice made by Parliament at the time and a choice that has been maintained to this day.

Second, the declaratory provisions seek to alter the status quo by permitting federal court judges and many other groups who have practised law in Quebec for a period of 10 years to fill the Quebec seats on the Supreme Court of Canada.

Declaratory provisions function like judicial decisions. Formally, their effect is to declare the law rather than to change it, but this involves the legislature acting as judge and jury. It is a breach of the separation of powers.

Subject to constitutional limits, Parliament can lawfully accomplish this. However, in the British constitutional tradition, of which Canada is a proud member, a distinction is sometimes made between acting lawfully and acting constitutionally. Declaratory laws may be lawful but also unconstitutional, breaching the unwritten constitution.

Parliament should reflect carefully before using this power, and perhaps consider more wide-ranging reform to the qualifications of judges on the Supreme Court of Canada.

Third, there is a potentially problematic limit in Canada's written constitution. Part V of the Constitution Act 1982 requires unanimous consent for changes to the composition of the Supreme Court of Canada.

Although the Supreme Court Act does not form part of the Constitution of Canada, the Supreme Court of Canada may well conclude, in the face of unilateral Parliamentary action, that certain core provisions of the Supreme Court Act, or certain essential and fundamental characteristics of the Supreme Court of Canada, are constitutionally entrenched and beyond the powers of Parliament.

This was the understanding of the drafters of Part V, though it remains to be seen what the court will say.

On these three issues, I think the members of this committee, and the members of Parliament more generally, should carefully reflect before reaching a final decision.

Thank you.

The Chair: Thank you very much. We will move to Professor Pelletier. The floor is yours.

[Translation]

Benoît Pelletier, Professor, Faculty of Law, University of Ottawa: Thank you, Mr. Chair and senators, for inviting me here today to discuss Bill C-4, which is before you.

First, allow me to say, and to be quite direct since the time allotted me is very short, that I am convinced, when I look at the Supreme Court Act, that sections 5 and 6 of that act must be read together, that is to say that the one must be interpreted in light of the other as section 6 simply clarifies section 5 in respect of Quebec. This is a drafting technique that we even see in sections 97 and 98 of the Constitution Act, 1867 respecting the appointment of judges to provincial superior and appellate courts. We see the same drafting technique: there is a general provision for Canada as a whole followed by a particularization and clarification with respect to Quebec.

I would add that I am convinced the English and French versions should also be read together. There are a few differences between the two versions, but they are two official versions and one must search those two versions for the spirit of the legislation, the legislator's intent, and the common sense meaning that emerges from the two versions in question.

On a purely grammatical point, when I look at the French version of section 5 of the Supreme Court Act, I see that it states, for example, that judges must be selected from among the lawyers who are ``inscrits pendant au moins dix ans au barreau d'une province.'' This leads me to make two comments.

First, the word ``inscrit'' may refer to current or previous standing. This gives rise to two interpretations, either a present, current interpretation, or a past interpretation.

I will add that the word ``inscrit'' is followed by the word ``pendant''. If the legislator had wanted judges to be appointed from among the advocates who had standing at the bar at the time of their appointment, it would have said ``parmi les avocats inscrits depuis dix ans ou au moins dix ans au barreau d'une province,'' whereas it stated ``pendant dix ans.''

In my view, the word ``pendant'' offers flexibility and attests to the legislator's wish to include in Supreme Court appointments people who have previously had 10 years' standing at the bar of a province and obviously, under section 6, at the Bar of Quebec.

When sections 5 and 6 are read together, that is to say when the two provisions are combined, as I think should be done, we obtain the following result: according to the French version, three judges must selected from among the current and former judges of the Superior Court of Quebec or of the Court of Appeal of Quebec or from among the lawyers ``inscrits'' at the Bar of Quebec for at least 10 years, with the double meaning that the word ``inscrit'' can have and with the use of the word ``pendant'' that I just mentioned.

In English, however, combining sections 5 and 6 yields the following result:

[English]

Three judges shall be appointed from among people who are or have been judges of the Superior Court of Quebec or of the Court of Appeal of Quebec or who are or have been advocates of at least 10 years standing at the Bar of Quebec.

[Translation]

As you can see, the English version is even clearer than the French version and thus affords the possibility of appointing to the Supreme Court people who have previously had 10 years' standing at the Bar of Quebec but who are no longer ``inscrits'' at the time of their appointment to the Supreme Court of Canada.

Now when I consider the spirit of the provision, or rather of the provisions, since I am still talking about sections 5 and 6 of the Supreme Court Act, it seems clear to me that the legislator wanted at least three of the nine Supreme Court judges to be trained in the civil law. Why? Because since the Supreme Court is a general court of appeal, it sometimes hears civil law cases, cases from Quebec, and it is desirable in such instances for there to be at least three civil law judges, and there is even the possibility for the court to sit only five judges in such cases, which enables civil law judges to form the majority on the case and to have the final word on a civil law matter.

The intent, in my view, was thus to appoint to the Supreme Court at least three persons with civil law training. It would be senseless to require those people to have spent their entire careers in the civil law because that would exclude from the Supreme Court of Canada criminal lawyers, who are obviously also necessary for the interpretation and enforcement of the laws. We would thus deprive ourselves of trade lawyers, maritime lawyers and, even worse, constitutional lawyers.

That was obviously a joke, but all that to say that it is not necessary for the person to have constantly practised civil law, or even to be currently practising civil law or to have practised only civil law, but that person must have civil law training. In my opinion, Mr. Chair — and I will close on this point; I will be able to expand on certain aspects during the discussion — the legislator's intent has never been to exclude Federal Court or Federal Court of Appeal judges as candidates for the Supreme Court. In my opinion, it is senseless to believe that Parliament wanted to exclude those judges from Supreme Court appointments.

The same is true of Court of Quebec judges, who, under a strict interpretation of sections 5 and 6, would be excluded from possible appointment to the Supreme Court of Canada. I do not see why a judge from the Court of Quebec — and even less so the Chief Judge of that court — could not eventually be appointed to the Supreme Court and properly represent the civil law tradition on that bench.

Senator Joyal: My first question following Professor Daly's presentation concerns the use of Parliament's declaratory power. You seem to draw a clear distinction between the use of the declaratory power that would apply to the interpretation of a statute, that is to say a regular act of Parliament, and the use of the declaratory power in constitutional interpretation.

My second question, which follows from the first, is whether, if the government contends that it has authority to adopt the bill in question, it would do so under section 91.1 or section 44, since the Parliament of Canada has authority under section 44 of the Constitution Act, 1982 to amend the Constitution of Canada unilaterally in a number of fields. In your view, is the use of the declaratory power as expressed in Bill 19 a valid exercise of the declaratory power within the authority of the Parliament of Canada or does it constitute an exercise of the declaratory power for constitutional purposes?

[English]

Mr. Daly: I think the answer to the question is a matter of principle. This has never been done before, so we don't have a clear statement. I'm not even sure that Professor Pelletier, in his excellent book on constitutional amendments, addresses this issue: What do you do by a declaratory provision that you could not do by a regular provision of the law? Is there a difference between saying we are amending the Supreme Court Act prospectively — and people don't agree on this, but let's say that that is a change to the composition of the Supreme Court of Canada. We would all say that Parliament could not do that, that this would require a constitutional amendment. I don't see how the fact that a provision is declaratory would change that analysis. I don't think you can circumvent the amending procedure, or any other constitutional limitation, by enacting a law that is declaratory rather than prospective.

For example, the interpretation of section 96 of the Constitution Act, 1867 requires, in part, that when the court has to examine whether an administrative tribunal is exercising judicial powers, part of the test is whether this was judicial power at the time of Confederation. I don't think that if there were a declaratory provision or a retroactive provision that said that this tribunal has always been exercising these powers ever since Confederation, this would change the analysis under section 96. I don't think, as a matter of principle, that Parliament can circumvent a constitutional limit by enacting a declaratory provision rather than a prospective provision.

Senator Joyal: And on the use of sections 41 or 91, do you make a distinction in relation to the adoption of this bill?

Mr. Daly: Well, I suppose the problem is in determining what the phrase ``composition of the Supreme Court of Canada'' in section 41 of Part V of the Constitution Act, 1982 means. There is evidence that the drafters thought it meant that there would be three Quebec judges on the Supreme Court of Canada, drawn from the Quebec courts and from the Quebec bar, and this was in the explanatory notes to the draft of the Constitution Act, which had been agreed on prior to its adoption. The understanding of the drafters seems to have been that this was protected and would be protected from action by Parliament acting on its own.

There is a counter-argument, which is that the Part V procedure applies only to changes to the Constitution of Canada. If one looks at the definition of the Constitution of Canada in the Constitution Act, 1982, the Supreme Court Act is not listed. So the argument made, amongst others, by Professor Pelletier is that in the event of an entrenchment of the Supreme Court in the Constitution, if there were an amendment to the Constitution to insert ``the Supreme Court of Canada,'' then the unanimity procedure, section 41, would apply to any provisions touching the composition, and the 7/50 formula in sections 38 and 42 would apply to other aspects of the Supreme Court of Canada. Until that time, Parliament can modify unilaterally any provision of the Supreme Court Act.

That also means that Parliament could abolish the Supreme Court of Canada, and it remains to be seen whether the Supreme Court will accept the argument that it can be completely obliterated by unilateral parliamentary action.

[Translation]

Senator Boisvenu: Welcome, gentlemen. It is always a pleasure to see you. Have you read Justice Ian Binnie's opinion?

Mr. Pelletier: Yes.

Senator Boisvenu: He ultimately gives us a few examples that seem to be of the same kind as Justice Nadon's appointment. I am thinking, for example, of Justice Louise Arbour, who was appointed directly to the Supreme Court without going through the structures provided for by the Supreme Court Act. Do you share Justice Binnie's opinion in the case of Mr. Nadon?

Mr. Pelletier: Yes, entirely. I must say I do not believe the legislator sought to exclude as candidates for the Supreme Court of Canada people who are no longer members of the bar but who have become judges at the International Tribunal, the Federal Court of Appeal or the Federal Court, or even, as I mentioned earlier, the Court of Quebec, because we forget to mention that the Court of Quebec is excluded if section 6 is interpreted very restrictively. We are talking about the Superior Court and the Court of Quebec.

I entirely share Justice Binnie's opinion. However, it raises a question, a problem. I am going to mention it: it is that, under the interpretation that I propose and that Justice Binnie proposes, people who have not been domiciled in Quebec for several years may be appointed.

In the context in which Quebec takes it for granted that it is entitled to three of the nine seats, I wonder whether we can still consider that a judge who has not resided in Quebec for several years, no longer practises in Quebec and no longer lives in Quebec still comes from Quebec. That is another problem because the act itself does not refer to residence or domicile. I am perfectly aware of that. I am talking here about historical gains that Quebec believed it had made within the Canadian federation and that are very much undermined by the current situation, by the way matters have developed, by the creation of the Federal Court, the Federal Court of Appeal, the Court of Quebec and so on.

I believe we must definitely adapt these provisions to a new situation and interpret them as showing that the legislator, first, never sought to exclude these people as potential candidates for the Supreme Court. However, that nevertheless poses a problem. As a federalist, I, like many others, said: you know, one of the gains from Canadian federalism is that Quebec has three out of nine seats. However, can a judge who has not lived in Quebec for several years still be included in that argument that we as federalists often like to advance? I ask the question, but it is nevertheless beyond the scope of the legal problem we are dealing with here.

Senator Boisvenu: With regard to that legal problem, how will Bill C-4 clarify this situation based on the interpretation that you and Justice Binnie have made?

Mr. Pelletier: I honestly do not believe this act is necessary. I already believe, based on the grammatical and teleological interpretation of sections 5 and 6 that I propose, and that Justice Binnie proposes as well, that the Supreme Court already has everything it needs to validate Justice Nadon's appointment. We may very possibly wind up in a situation such as this: seeing the constitutional debate that Bill C-4 may raise, the court may say that, given the conclusion I have come to in my interpretation of sections 5 and 6 of the Supreme Court Act, it is not necessary for me to state an opinion on the validity of Bill C-4. The fact nevertheless remains that this opens the door to a certain debate.

Senator Boisvenu: Which is more political.

Mr. Pelletier: Experts already say that the Supreme Court Act is constitutional, that is to say that it is implicitly entrenched in the Constitution under subsection 52(2) of the Constitution Act, 1982. I believe it is not constitutional, but very serious experts claim the contrary. In that case, the federal government can always say that these are declaratory provisions and that, as such, sections 5 and 6 will therefore not be changed. That then raises my colleague's argument: how can we seek, by means of a declaratory provision, to have an effect on the current provisions? Does that not amount to doing indirectly what we cannot do directly?

I would answer that, yes, there is a debate which is not just political and triggered by Bill C-4, and which is unnecessary given the grammatical and teleological interpretation that I think is appropriate to give to sections 5 and 6 of the Supreme Court Act.

[English]

Senator Baker: Before I ask the question I want to ask, something is bothering me. I looked at this particular provision that we're passing judgment on and, having been here in Parliament for 40 years and having watched a good many bills go through this place, as I recall, when the phrase ``for greater certainty'' is used in the English version — and this one says, as per usual, ``for greater certainty for the purposes of section 5.''

Now, as I recall, nine chances out of ten, in past legislation, when you go to the French version — and I'm not proficient in French, so I may be off base here a bit, but let me put it to you — you normally see ``il est entendu,'' it is understood for the application of section 5. But in this particular measure, it says: ``il demeure entendu.''

The reason I'm asking you this question is because I listened to Professor Daly, and he said this will provide a wider pool in the future. He spoke of prospectively, and so on. What I was thinking about when I looked at that wording was this: Is this a question that's retroactive in nature, or is this a question that's retrospective in nature? Do I have a point here? Am I wondering out loud correctly on the French?

Mr. Pelletier: My sense is that the goal here is to have a retroactive provision. When you say ``il demeure entendu,'' it's like if it was, and it is still. So there's a retroactive goal by this provision. This being said, I don't think it is invalid for that reason, and I don't think it's invalid per se. Some people say so, but I don't think it would be invalid for that reason, because most declaratory provisions have that kind of retroactive effect.

Senator Baker: Yes, but you understood my point. Normally — and as I say, I've looked at legislation for about 40 years — ``for greater certainty'' is followed by ``il est entendu.'' In some cases you find ``demeure entendu.''

I ask Professor Daly: Were you incorrect, then, in your previous statements to the committee in which you said it's a wider pool in the future?

Mr. Daly: I'm happy to report, Senator Baker, that I had a vibrant discussion with some faculty colleagues about this point. The distinction between ``retrospectivity'' and ``retroactivity'' is very difficult. We can certainly count angels on the head of a pin, if you wish to. I think this is retrospective.

Let me give you the following example. If the Federal Court had come to the conclusion that Mr. Justice Nadon was not eligible to be appointed to the Supreme Court of Canada and Parliament took a different view, then it would have to enact retroactive legislation because there was a final decision of a court. But while the matter is still pending, retrospective legislation gives guidance to the court on how it is to interpret the provision in the future, when the matter comes before it.

One example of a distinction between retroactivity and retrospectively would be the following: If Parliament, tomorrow, made it an offence to appear before the Standing Senate Committee on Legal and Constitutional Affairs for professors of law who have appeared before the committee in the past, that would be retroactive. It would change something that happened in the past. If Parliament were to pass, however, a bill with which I would be more agreeable, which said that any professor of law who has testified before the committee will receive a tax credit on their next tax return, then that would be retrospective. It looks backwards, but it has effects in the future. It doesn't penalize me for something I've already done.

The provisions before you are, in my view, retrospective, but to the extent that they look backwards and try to change things in the past, one could argue, I think incorrectly, that they're retroactive. I don't think the distinction between retroactivity and retrospectivity should detain you too long.

Senator Baker: I'll just conclude on this. I obviously won't get to my main question, but Driedger's interpretation of statutes gives a two-sentence definition of ``retroactive'' versus ``retrospective.'' It appears to me that the change — I don't know; I could be wrong, but I think Professor Pelletier has put his finger on it, the difference between ``il est entendu'' and ``il demeure entendu'' is that one would be retroactive and the other one would be retrospective, because one would apply as you said, Professor Daly, to a wider pool in the future, whereas the other one would have a retroactive application, Professor Pelletier.

Mr. Pelletier: My point of view is that if the Supreme Court of Canada decides that Mr. Justice Nadon's appointment is invalid, then Mr. Iacobucci's appointment was invalid in the past; Mr. Le Dain's appointment was invalid in the past; Louise Arbour's and Mr. Rothstein's appointments were invalid in the past.

So my view is that the Justice Department and the minister want to make sure that these appointments are also considered to be valid in the mind, the spirit and the intention of the federal legislature. That's why I say it's retroactive more than retrospective.

Senator Baker: May I have a second round? I didn't get to the actual question I wanted to ask. Thank you.

[Translation]

Senator McIntyre: I note that, on October 12, the government introduced Bill C-4, adding sections 5.1 and 6.1 and also referred two questions to the Supreme Court for its consideration under section 53 of the Supreme Court Act.

My question is this: why proceed in this manner; and the question I ask myself is this: why introduce these new provisions and request a reference on the same subject at the same time?

[English]

Mr. Daly: A very good article by a journalist named Alison Crawford was published around that time, and she laid out five options.

[Translation]

The federal government had five options at that point. The five options were bad; every option was bad. I think the government ultimately chose the argument that would make it clear Justice Nadon's appointment was valid. Belt and suspenders, you could say. That makes the matter difficult for the court because they have Parliament's opinion on the matter before them. At the same time, however, for the sake of clarity, I think that was the best way to seek that clarity. When you weigh the breach of the separation of powers against the need for clarity, the task before you is to say: does the lack of clarity make it necessary to proceed in this manner?

Mr. Pelletier: For more guarantees, is it necessary? I said no earlier. However, this opens up an important debate, which the Supreme Court will be able to avoid if it actually finds that Justice Nadon's appointment is valid under sections 5 and 6 and that there are no grounds to add declaratory provisions.

However, if we find ourselves in a situation in which Quebec says that the Supreme Court Act is constitutional and that the addition of provisions to the Supreme Court Act must be done in accordance with the constitutional amendment procedure, the court will have a difficult choice to make. Either it will rule on the constitutionality of the Supreme Court Act, and I believe the court will not wish to do so, or it will not rule on it and come to the conclusion that, given its findings on sections 5 and 6, it does not need to rule on the question of whether the Supreme Court Act is constitutional.

Earlier, however, my colleague Mr. Daly mentioned that I was of the view that the Supreme Court Act is not constitutional. I still hold that view. However, when he said that my assumption could hypothetically lead the Parliament of Canada to abolish the Supreme Court of Canada, I answered in my book that no, it could not because, in my view, judicial independence is protected by section 101 of the Constitution Act, 1867, and that is what would protect the Supreme Court of Canada from abolition by the Parliament of Canada. We are talking about something else. We are talking about the application of section 101, which is not in Part V of the Constitution Act, 1982, or support for the judicial independence the court enjoys, which independence presumes on the court's existence and essential functions.

[English]

Mr. Daly: I'm happy to correct the record in respect of Professor Pelletier's position on abolition.

I would just add that what's really at issue in the current debate is section 6 of the Supreme Court Act. Section 5 is not at the heart of this. I think everyone who has looked at the question agrees that section 5 allows anyone who has practised for any period of 10 years to become a member of the Supreme Court of Canada, and that includes judges of the federal courts.

None of the examples cited — Justice Arbour, in fact, was the subject of a special provision in section 56.1 of the Judges Act to allow her to take up her role at an international tribunal. Justice Le Dain, Justice Iacobucci and Justice Rothstein were all appointed validly under section 5, and no one takes the view these appointments were invalid. Perhaps some people do — Mr. Galati might take that view — but I don't think it's the majority view.

Justice Le Dain is an excellent example. Here was a distinguished civilist who practised for many years with great distinction in Quebec and went on to do many other great things, but when the time came to elevate him to the Supreme Court of Canada from the Federal Court of Appeal, he was not nominated to one of the Quebec seats. That was also the case with Justice Arbour, who was a graduate of the Université de Montréal's Civil Law Faculty.

These examples, unfortunately, do not give us any clarity on section 6. The unbroken tradition, as far as I know — well, Mr. Justice Abbott was appointed to a Quebec seat from cabinet, as far as I recall, but no other person has been appointed to one of the Quebec seats on the Supreme Court of Canada from the federal courts.

In fact, there was an interesting historical episode in the 1920s involving Mr. Justice Audette, who was a judge then at the Exchequer Court of Canada, which is the forerunner to today's Federal Court. Again, a very distinguished civil lawyer, who was never appointed as an ad hoc member of the Supreme Court of Canada due to concerns about the appropriateness of nominating Quebec judges from the federal courts.

The historical evidence points in the direction of the reading of section 6, which is that Parliament made a legitimate choice to narrow the pool of potential candidates. We can agree or disagree about the wisdom of this choice, and Parliament is free to revisit this choice, but it is a choice that was made, and it is that choice which is at the centre of the current debate.

Senator Jaffer: In light of what you have said, Professor Daly, as written in the new section 6.1 proposed by Bill C-4, it does not refer to a place of residency of judges. People have talked about Justice Louise Arbour, but as you have already correctly stated, she did not get one of the Quebec seats, so that argument does not apply.

In your opinion, do you think it is important that a person should be a resident of Quebec in order for the three Quebec seats to be filled?

Mr. Daly: Of course, one of the difficulties with that is that Parliament has provided that judges of the federal courts have to be resident in Ottawa, which may make it more difficult to attract people to become members of the federal courts. I don't know. You have to draw lines, right?

I could give you the example of a Canadian law student who studied civil law with great distinction, went on to doctoral studies at Oxford and became a distinguished professor of comparative constitutional law, then returned to Canada and was a member of a provincial bar for nine years and 364 days. This person would still not be eligible for appointment to the Supreme Court of Canada. Parliament has to draw lines. It has to make choices. It's difficult.

One of the difficulties with the line-drawing exercise that you are being asked to undertake is that lawyers today are more mobile than they ever were before. There are historic agreements which have been entered into by the law societies across Canada, including the Barreau du Québec, which allow for the mobility of lawyers between provinces. So you could have a very distinguished civil lawyer who is practising for a lengthy period of time in British Columbia who would be considered for nomination.

I don't want to take a firm position on whether a residency requirement is a good idea. What I do want to say is that these examples show that this matter is not straightforward and that when you start tinkering with these provisions, you start to raise a lot of questions. I think the way this matter has been presented suggests that you should close your eyes and close your ears to these other issues, but there are other issues concerning interprovincial mobility.

While the committee is charged with the study of these provisions, it might ask, for example, whether the law should be amended to require bilingualism on the part of judges of the Supreme Court of Canada, or for gender representation, a guaranteed number of female judges on the Supreme Court of Canada.

I would urge the committee to at least consider the possibility that a more global reform is desirable, at least consideration of more a global reform, rather than tinkering around the edges.

[Translation]

Senator Dagenais: I listened to you carefully. For three years, I sat on a judicial appointments committee — I see that makes you smile, Mr. Daly. In their nomination proceedings, they normally express their choice to sit on the Superior Court, the Court of Appeal or the Tax Court of Canada. I believe that Mr. Nadon was sitting on the Tax Court bench. What I do understand is that, if you decide to sit on the Tax Court of Canada, your place of residence is definitely Ottawa. People know that.

In the case before us, the person was at a disadvantage because he was a member of the Tax Court of Canada and lived in Ottawa. However, I understand you, Mr. Pelletier, when you say that the person has been a member of the Bar of Quebec for 10 years. The question is therefore whether it is a disadvantage to live in Ottawa. However, the fact that you have been a member of the Bar of Quebec for 10 years should not strip you of the privilege of being appointed to the Supreme Court. Should we not set aside place of residence because that means all those who prefer to sit on the Tax Court of Canada would be at a disadvantage?

Mr. Pelletier: First, residence is not at all a judicial criterion at this time. However, it can be considered politically.

I would like to take the opportunity you have afforded me to respond to my colleague Mr. Daly. When I talked earlier about the appointments of justices Iacobucci, Le Dain and Arbour, they would be impossible if the court were to find that Justice Nadon's appointment is invalid. I was not referring solely to the English version of section 5 of the Supreme Court Act; there is also a French version, and it will have to be interpreted by the Supreme Court of Canada. If only the English version is considered, it will obviously be said that only Justice Arbour's appointment could be questioned. Everything depends on how the court would interpret that ambiguity between the English and the French versions of section 5.

I do not believe that section 6 is the central issue; I believe it is the English and French versions of sections 5 and 6 that are central to the debate. Section 6 is not the only provision; there is section 5. Section 6 will be interpreted in relation to section 5, the French version in relation to the English version, and vice versa.

With regard to all these interpretations, I have come to the conclusion that Justice Nadon's appointment was valid from both a grammatical and teleological standpoint.

Coming back to the residence question, however, I would recall that it is not a legal issue in itself, but it can be a political concern which, if not addressed today, will have to be addressed one day. I heard some honourable senators around the table say ``Quebec seats.'' Should we not ultimately say ``civil law seats'' instead? Is it still a ``Quebec seat'' when the judge has not lived in Quebec for many years?

The Government of Quebec's argument is troubling, probably more so because Justice Nadon has not lived in Quebec for many years than because he comes from the Federal Court of Appeal. I believe the question will have to be asked because, when federalists, of whom I am one, tell Quebecers that one of the gains in the Canadian system is that Quebec has three out of nine judges, it will eventually have to be determined what a judge ``from Quebec'' or ``representing Quebec'' is. Since I come from the civil law tradition, when I say ``representing Quebec,'' I do not mean ``adopting Quebec's viewpoint on various issues'' but rather ``representing the Quebec civil law tradition and still a resident of Quebec.''

These are the political issues. This committee can very legitimately decide to defer these political issues to another time, while still being sensitive, however, to the argument advanced here by the Government of Quebec.

[English]

The Chair: I want to encourage our witnesses to try and be as concise as possible. We still have quite a number of senators who would like additional questions put to you, and we're getting limited in time.

Senator Batters: Thank you both for coming before us today on this important issue. I have a couple of questions for Mr. Pelletier.

It's your contention that the distinct nature that Mr. Daly spoke about is preserved by requiring the civil law training; that's your contention?

Mr. Pelletier: Right.

Senator Batters: Would you agree with former Supreme Court Justice Binnie's view that to find otherwise in this particular case, other than to have this result that our government is proposing here, would lead to an absurd result?

Mr. Pelletier: I agree with Mr. Binnie's conclusions completely. My view is that the main goal behind section 6 is to make sure that there are at least three out of nine justices in the Supreme Court who are familiar with civil law or who had training in civil law. That is why it is required that they were or are members of the Bar of Quebec, and that they have been members of the Bar of Quebec for 10 years in order to make sure that there are at least three justices who know civil law.

What pleases me, though, is that we all know that in today's world, even common-law justices are sensitive to the civil law reality. That is, I would say, what is good is bijuralism, the concept where civil law justices try to get more familiar with common-law principles, and common-law lawyers and justices try to get more familiar with the civil law tradition. That is what is good. But it was not necessarily the case at the time the provision was adopted.

The goal was to make sure that at least three would be good enough in civil law to hear a case and to decide on a case with the perspective that the court could have only five judges sitting on a civil law case, giving the majority to the three civil law trained justices.

The Chair: We're into second round. Two senators have indicated they have additional questions.

[Translation]

Senator Joyal: Mr. Pelletier, section 41 provides that the composition of the Supreme Court is entrenched, and section 38 provides that the Supreme Court of Canada is subject to a special provision respecting its amendment in accordance with the 7/50 formula.

In your opinion, what is entrenched by the expression ``the composition of the Supreme Court of Canada'' in paragraph 41(d)? Is it the seats or the civil law tradition? And in what context could the composition of the Supreme Court be reduced or increased? Because, according to what you have just said, it is in fact not the places of residence that are entrenched; it is not the current residence of the judge or potential candidate. In practice, then, what is entrenched in ``the composition of the Supreme Court'' under section 41?

Mr. Pelletier: In my opinion, nothing, because I do not believe the Supreme Court of Canada Act is part of the Constitution of Canada within the meaning of subsection 52(2) of the Constitution Act, 1982. It must be understood that subsection 52(2) states a definition of the Constitution of Canada that includes the Constitution Act, 1982 and all the acts and orders referred to in the schedule to the Constitution Act, 1982. The Supreme Court Act does not appear in that schedule.

I believe that sections 41 and 42, which refer to the Supreme Court, will not apply until the Supreme Court Act has first been entrenched and included in the Constitution of Canada and will probably apply even to its inclusion, which has not yet been done.

That being said, this is part of the debate among legal experts because subsection 52(2) states that the Constitution of Canada ``includes''. So this is not an exhaustive definition. Some jurists therefore say the Supreme Court Act should be implicitly included in the definition of the Constitution of Canada, while others say no and that the current provisions of section 41 and section 42 will not apply until we want to entrench the act in the Constitution and thereafter.

I belong to this second school. That is why I do not see any problem of validity with the declaratory provisions that are proposed here, except that I am not satisfied that they are useful. If we take the other option, saying that the Supreme Court Act is constitutional in nature and is indeed part of the Constitution of Canada within the meaning of subsection 52(2) of the Constitution Act, 1982, then the act of adding declaratory provisions here opens an entire debate. Either you say that a declaratory provision does not affect the content of the Constitution Act in some way and that it can be added unilaterally by the Parliament of Canada, or you say that the declaratory provisions amount to doing indirectly what cannot be done directly, that is to say that they amend sections 5 and 6 of the Supreme Court of Canada Act. Yes, that is an issue for debate.

I do not subscribe to that argument, being of the view that the Supreme Court Act is not part of the Constitution of Canada within the meaning of subsection 52(2) of the Constitution Act, 1982.

Senator Joyal: Professor Daly?

[English]

Mr. Daly: There's not much to add to that excellent and comprehensive answer from Professor Pelletier. The only thing I would say is that if the court were to find that the composition of the Supreme Court of Canada is entrenched, it may well go on to say, as you have suggested, that what is entrenched is the civilist tradition. They may also say that this tradition is respected by the appointment of Federal Court judges to the Quebec seats, so it would not be an alteration to the composition of the court.

That's another possible conclusion of many possible conclusions when the court is confronted with this question.

Senator Baker: Two brief questions. I will put them all together.

What does section 30, as I recall of the Supreme Court Act — I don't have it before me, but section 30 of the act clearly — it takes too long to read it, but to my recollection, what it says, basically, is it sort of gives a counterbalance to both your arguments in that in cases of a quorum of five, or fewer than five in some extraordinary cases, where a case is being appealed from Quebec, the two justices from Quebec must be from the Superior Court of Quebec or the Appellate Division of the Superior Court of Quebec. What does that do to your argument?

My second question is what do you think of the selection committee, that is that the minister consulted with the Attorney General of Quebec, the Chief Justice of Quebec, the Chief Justice of the Superior Court of Quebec, the Chief Justice, and consulted with the Canadian bar and the Bar of Quebec, but then also consulted with the Superior Court of the Court of Appeal, the Federal Court of Appeal, and consulted with the Chief Judge of the Federal Court? In other words, the Federal Court and the Federal Court of Appeal Chief Justices were a part of the decision making, of the suggestions, and that's it. And then that was passed to House of Commons politicians, made up of three conservatives and two members of the opposition, to come up with three names.

Do you have any comments at all about that selection committee that we have in place for appointments to the Supreme Court of Canada?

If you don't want to comment on that, which maybe you don't, then would you comment on my first question regarding section 30, sort of interfering with the position that you put forward so far?

Mr. Pelletier: I will answer the first question. I will ask my colleague to answer the second.

My point of view is that whether a disposition or provision may be invoked, I doubt very much that the legislator wanted to exclude the talent, the competence of the judges of the Federal Court of Appeal, la Cour canadienne de l'impôt, la Cour du Québec, from an appointment to the Supreme Court of Canada.

I think that to me it is clear that anyone who has been a lawyer, a 10-year member of the Bar of Quebec, could be appointed to the Supreme Court of Canada even if that person is today a judge at the Federal Court, Court of Appeal, or whatever else.

So I don't see any contradiction in anything. If you interpret the dispositions as allowing appointments like that of Justice Nadon, of course if you interpret the dispositions restrictively, narrowly, then you come to another conclusion.

If you interpret the dispositions in a much wider sense, taking into account the abolition of Canada as a society, then you may come to a more inclusive interpretation, which is the one that I propose to you.

As far as the second question, I may not answer it directly, your question, and probably will not to your satisfaction, but let me say that it could be possible without a constitutional amendment to make sure that Quebec is more involved in the process of selecting the judges for the Supreme Court of Canada.

I'm not saying appointing the judges. I'm just saying participating in the selection of judges to the Supreme Court.

A couple of years ago when I was a Quebec minister, I proposed to Irwin Colter, at that time federal justice minister, to add Quebec to the current process for the appointment of the justices to the Supreme Court in allowing Quebec to propose different names, and that the federal government would propose different names, and that a committee would decide on the names, and when a name appears on both lists, these names should be preferred to the names that only appear on one list.

I said to Mr. Cotler, ``You already have a process for selecting the justices of the Supreme Court. That way, Quebec could have a say with regard to these appointments that you will continue to make. The appointments will be made by the federal government, and there will be an objective committee analyzing the federal list and the Quebec list.''

The Chair: I'm going to have to jump in, because we're exceeding our time.

Mr. Pelletier: It did not happen.

The Chair: No, it did not happen. I want to give Professor Daly a brief opportunity to respond as well before we adjourn.

Mr. Daly: Justice Binnie does not discuss section 30 in his opinion, and I think he should have. I don't think it helps his argument; I think it helps my argument that there was a choice made. I refer you again to the story of Justice Audette who was never appointed as an ad hoc judge, even though he was a civilist, because of concerns that you could not appoint ad hoc judges to the Quebec seats from the federal courts. I don't think it helps. I think Justice Binnie also neglects to an extent the purpose and spirit of section 6. Professor Pelletier has done a much better job of giving the argument in favour of the validity of Justice Nadon's appointment. There's also significant historical materials that I hope the court will analyze.

On the appointments committee, it is very difficult to know what the consultations consisted of. The consultation of Chief Justice Crampton of the Federal Court of Appeal may simply have been Chief Justice Crampton, when asked for any opinion on this list, responding, ``I cannot give you an opinion because I would be in a conflict of interest.'' That may well have been his response. In terms of the consultations, in terms of the discussions the committee had, and in terms of the names on the long list and the names that were on the short list, we know nothing. It is not possible to give a considered comment.

The Chair: I'm sure we could go on at great length. That is a very helpful and interesting contribution to our deliberations, and we thank you both for your appearance here today.

We will hear from our next panel of witnesses, the Honourable Michel Bastarache, former Justice of the Supreme Court of Canada; and Carissima Mathen, Professor, Faculty of Law at the University of Ottawa. Welcome. We appreciate your taking time out of your busy schedules to be with us today.

Mr. Bastarache, the floor is yours.

[Translation]

Hon. Michel Bastarache, former Justice of the Supreme Court of Canada, as an individual: Good afternoon. Thank you for inviting me here today. I will be making my presentation in French, but I will answer questions in the language in which they are asked.

Two questions were referred to the Supreme Court. If the court answers ``yes'' to question 1, question 2 will be moot, because sections 5 and 6 as they stand will be confirmed to already allow a person formally called to the Barreau du Québec for 10 years to be appointed to the court. If the court answers ``no,'' it will have to consider question 2. In that event, the amendments would not confirm the previous interpretation but would really constitute an amendment. The question then would simply be whether or not it is a constitutional amendment.

First, is it a good, acceptable policy to allow Federal Court judges to be appointed to the Supreme Court? My answer is yes, for two reasons.

First, because I think it is important to prevent any doubts that might be raised about the legitimacy of the appointments of three former justices of the Supreme Court of Canada, all three of whom were appointed by reason of their membership in a bar association prior to their appointment.

Second, Federal Court judges can clearly make a valuable contribution to the work of the Supreme Court, possessing as they do judicial expertise in areas that provincial superior courts do not deal with, particularly in immigration, refugee, navigation, maritime and even tax law. It is useful for the Supreme Court to have the perspective of these judges. And even if they are not engaged in civil law as such, it must also be understood that they cite Quebec civil law as suppletive law in cases in which federal law is incomplete. It should also be noted that not all judges from Quebec are experts in civil law, as was the case of Justice Fish in particular.

I therefore think it is important that the Federal Court include judges from Quebec in order to show the impact that federal law has on Quebec law and to facilitate the integration of civil rights and common law. It would be inconceivable in these circumstances to disqualify Federal Court judges from Quebec.

The onus is on the Prime Minister to ensure that persons are appointed based on the reasons for which the rule was established requiring that three judges from Quebec sit on the Supreme Court of Canada.

Second question: Is it logical and right to allow a person who is no longer a member of the bar to be eligible?

Custom dictates that it is, since we have three examples in justices Le Dain, Iacobucci and Arbour, but it must also be understood that the problem, if there is one, already exists if section 6 is interpreted restrictively. A member of the Barreau du Québec who practises in Gatineau may very well live in Ottawa. Will he be disqualified because he practises in Ontario? In my view, the act provides for no residence test that need be considered.

It must also be understood that many lawyers in modern society are members of several bars. I myself belong to four. In fact, one need only pay one's dues to remain a member of a bar association. This means that we will never have an act that provides for all circumstances and all situations. We must trust those who appoint and trust that they will simply attach importance to the fundamental reason why we want to maintain a contingent of three Federal Court judges from Quebec.

Fourth question: Can Parliament adopt amendments to the Supreme Court Act? To answer that question, it must simply be determined whether that will constitute a change to the composition of the court. If so, a constitutional amendment is necessary.

In my view, the object of paragraph 41(d) of the Constitution Act, 1982 is to make mandatory the convention that prevailed at that time. The convention was simply that the number of Quebec judges would always be three in order to establish a regional balance and a balance between the two major systems of law in the country.

If the government wanted to reduce the number of Quebec representatives to two, for example, that would affect the composition of the court. If qualifications are the issue, that does not change the representation. One year ago, the Government of Quebec requested a change to qualifications to ensure that all judges appointed to the Supreme Court would be bilingual. If that did not require a constitutional amendment, why would this require one?

The question is what interest is sought to be protected by fixing the 1982 standard, and it is clear in my mind that an amendment to the Supreme Court Act would have no constitutional effect because the Supreme Court Act itself is not a constitutional statute.

The fundamental issue, the substantive issue, is obviously the interpretation of the current provisions, that is to say sections 5 and 6. The rules of statutory interpretation provide that, where there is ambiguity or inconsistency between the English and French versions of a statute, a common meaning must be found, that to say the one compatible with each of the versions, even if one is more precise than the other.

Here the English version of section 5 is perfectly clear, where it contains the words ``has been,'' which are applicable to the status of the judge or to that of the lawyer. The French version is ambiguous because the word ``ancien'' seems at first glance to concern only a judge, although a broader interpretation is also possible. The common meaning is best conveyed by the English version and I think that is entirely correct.

Section 6 cannot be read in isolation. It must be read in the light of, in conjunction with, section 5. Why? First, because the rules of statutory interpretation require consideration of the general legislative context, but also because section 6 refers directly to section 5 in that it starts by providing that at least three, and I quote, ``judges'' shall be selected, judges qualified in accordance with section 5.

Section 6, in this instance, cannot disqualify a person who is already qualified under section 5. Its purpose is simply to ensure that three of the persons contemplated in section 5 shall represent Quebec. Qualification by virtue of membership in the bar is thus the same as in section 5.

It would be utterly illogical for a member qualified under section 5 to be disqualified on the day he or she is appointed to the Federal Court, just as it would illogical for a 20-year-old admitted to the Barreau du Québec for one day suddenly to be eligible for appointment to the Supreme Court of Canada. The rules of interpretation strictly provide that an absurd interpretation must always be avoided.

In conclusion, in my opinion, the amendment to the Supreme Court Act may be made without constitutional amendment. I believe, however, that it is not necessary, simply because the correct interpretation of sections 5 and 6 permits the appointment of a Federal Court judge to represent Quebec. Thank you.

[English]

Carissima Mathen, Professor, Faculty of Law, University of Ottawa, as an individual: Thank you very much. I would like to say what an honour it is to appear before this committee as well as with a panellist of the stature of a former Supreme Court justice. Of course, as academics, we're quite used to disagreeing with judges when they are on the court, but I note he was also an academic; so there's no escape for me today.

I will make three brief points.

First, in regard to sections 5 and 6, as we all know, Justice Nadon's nomination was accompanied by a memorandum from another former Supreme Court justice, Ian Binnie. Mr. Binnie concluded that there is no statutory impediment to appointing Justice Nadon.

Together with Professor Michael Plaxton of the University of Saskatchewan, I examined Mr. Binnie's analysis in an article entitled ``Purposive Interpretation, Quebec and the Supreme Court Act,'' and I have submitted that article to the committee.

Very briefly, Professor Plaxton and I agree with Mr. Binnie's analysis of section 5. We do believe that his analysis of section 6 was incomplete. He seems to treat section 6 as effectively identical to section 5. In our opinion, it is not.

The purpose of section 5 is to clearly guarantee minimum legal expertise for the court as a whole. The purpose of section 6 is, additionally, to set out specific rules to guarantee minimal expertise with respect to Quebec's distinctive legal traditions. So section 6 responds to a functional concern that is not present in section 5.

In addition, our research indicated that section 6 was an attempt by successive parliaments to assure Quebecers that at least the three judges drawn from that province would have sufficient links with its legal culture.

Second, a comment about declaratory legislation: Clauses 471 and 472 are described as declaratory. Unlike ordinary legislation, declaratory legislation purports to determine the meaning of existing law. Traditionally, it follows an adverse judicial ruling. For this reason, it is assumed to operate retroactively, to change the state of affairs under which that ruling was rendered.

In the present case, passage of these clauses would mean that 10 years' bar membership is all that has ever been required for appointment to the court, under section 5 or 6.

Declaratory legislation enacted in the absence of an adverse judicial ruling — the situation here — is rare.

In determining the appropriate uses of declaratory legislation, one must consider both its goals and the law it is purporting to affect. To the extent that the clauses in issue purport to define the purpose that animated an earlier parliament or parliaments, this does not seem to be an appropriate use of declaratory legislation in that it trenches on the competence of the courts to interpret legislative purpose.

Parliament may imbue the law with a new or amplified purpose. It may, through declaratory legislation, determine the application of sections 5 and 6, but its ability to define the law's original purpose is more limited, and for good reason.

Finally, a point about the procedure that the government has chosen: It's very unusual to seek to pass legislation whilst referring that legislation to the court for guidance.

An example of where this has occurred, a long time ago, is with respect to the Anti-Inflation Act reference, which of course was enacted in a time of economic crisis.

While I believe that seeking the court's advice is prudent, it is inconsistent for the Attorney General to propose legislation in the house, which implies belief in its validity, and then admit, through a reference to the Supreme Court, that there may be questions around its ability to do so. The initiation of a reference suggests that these clauses may be premature.

That concludes my prepared remarks. Thank you.

The Chair: Thank you. We'll begin the questioning with Senator Joyal.

[Translation]

Senator Joyal: Mr. Bastarache, I would like to go back to page 2 of your brief, where you elaborate on Parliament's ability to adopt amendments to the Supreme Court Act. If I correctly understand your interpretation and what you are proposing, the Constitution Act, 1982 entrenched the part of the Supreme Court Act that recognizes that the composition of the Supreme Court bench includes three judges from Quebec.

Mr. Bastarache: That is correct.

Senator Joyal: It is that provision of the act that was entrenched, but those three seats must not be interpreted as being seats essentially linked to the ability to express, to promote or to interpret the civil law tradition of the Canadian system which, based on the Constitution acts of 1867 and 1982, obviously comprises two cohabiting legal systems: the common law and the civil law tradition. In other words, is this about more than simply three seats? Is it really also about the ability to express the civil law tradition that we sought to entrench in 1982.

Mr. Bastarache: I believe that was the motivation for providing a one-third representation in the Supreme Court of Canada, but I do not believe it was essentially to ensure that there were three civil law experts on the bench, for the good reason that there were never three civil law experts. We did not have that recently. I believe that the issue was a motivation, a desire for regional representation — three judges from Ontario, three judges from Quebec, one from the Atlantic and two from the west — and we had variations in the composition of the court because, at one point, there were three judges from the west and two from Ontario, but that derogation was not wanted in the case of Quebec. We always wanted to ensure that Quebec had its three judges.

Now I believe this is an exercise of discretion by the Prime Minister, who makes the appointments, to ensure that, in those Quebec appointments, we have people who are specialists in civil law matters. Bear in mind, however, that virtually no civil law matters go before the Supreme Court. There is a very small percentage. There are many cases from Quebec, but they are cases in criminal law, labour law, family law and all the various fields. The reason why there are few is that there is a tendency in the Supreme Court of Canada to let the Quebec Court of Appeal resolve the issues that are really strictly Quebec civil law matters. The court intervenes when problems arise in the decisions of the Quebec Court of Appeal, divisions, in particular divisions over substantive issues. Generally, there are very few.

I believe the concern was to guarantee Quebec a very important place on the Supreme Court of Canada.

Senator Joyal: So, three seats?

Mr. Bastarache: That is correct.

Senator Joyal: Then what meaning do you attach to section 42, which submits the Supreme Court of Canada to the 7/50 amendment formula? Does that have an impact or is it purely, I was going to say, ornamental? Because section 42 very clearly states that to amend the Supreme Court of Canada, and I quote:

[English]

An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1) —

Which is 7/50.

— (d) subject to paragraph 41(d), the Supreme Court of Canada.

So the Supreme Court of Canada if I read the Constitution of 1992 with the purpose is beyond the unilateral power of the federal government, either under 44 or 91, to change something of the Supreme Court of Canada, without resorting to the amending formula. In other words, what is the scope of 42(1)(d) in relation to the Supreme Court of Canada?

Mr. Bastarache: If you wanted to change the representation of Quebec, you could do it, is what you're saying, without the participation of Quebec?

Senator Joyal: I'm not saying that.

Mr. Bastarache: It seems to me you would never reach that —

Senator Joyal: I'm not saying that. Because if you change the participation of Quebec under 7/50, it could mean that you could abolish the three seats of Quebec, without Quebec concurring.

Mr. Bastarache: Yes.

Senator Joyal: I think the Quebec seats are protected under section 41, the unanimity formula, which maintains some sort of veto right for Quebec.

But in the context of section 42, whereby it's clearly stated that the Supreme Court of Canada is under the 7/50 amending formula, my question to you is: What is covered, then, under 42(1)(d) of the Supreme Court Act?

Mr. Bastarache: I don't know. I never set my mind to that issue. But, as you know, the Supreme Court is a federal institution; it was created not by the Constitution itself. The Constitution of 1867 only provides for the power of the federal government to establish a Supreme Court; so this is why it's not a constitutional body in itself.

It is protected indirectly by the amendment formula, but there's no clause that directly says, ``There shall be a Supreme Court of Canada; it shall be composed of nine judges representing the regions,'' or something like that. So it's an indirect protection for the province of Quebec.

As you say, I think the important element is that there is sort of a veto in the sense that one-third representation from Quebec is totally protected.

Senator Joyal: I know the time is flying. My second question would be for Professor Mathen.

Professor Mathen, would it not be better for us, in relation to Bill C-4 that we suspend the proclamation of that bill until the decision of the Supreme Court be made public in relation to the reference that the Canadian government has addressed to the court, instead of legislating to influence the interpretation of the court?

Ms. Mathen: I would confine my answer to clauses 471 and 472. I do believe that it is inappropriate and unwise to pass legislation at the same time that the executive has sought advice from the Supreme Court. The Supreme Court has, on occasion, refused to answer reference questions where the questions were moot, were ripe, where the court clearly felt that there could be a possibility of uncertainty; and I think where the court felt that the use of the reference function was inappropriate.

So I believe that both should not be going at the same time, and it is certainly unusual and, in my opinion, unwise for the government to pursue both tracks.

Senator Joyal: Would you agree that it would be better for us to suspend the implementation of 471 and 472 until the decision of the Supreme Court be made public?

Ms. Mathen: I believe the government could either withdraw the proposed changes to the Supreme Court Act or withdraw the reference. It has sought the advice of the Supreme Court. If the government feels that it is more prudent to pass this legislation and see what happens, it is also free to do that. I don't believe that it is now duty-bound to proceed with the reference.

Senator Joyal: Yes, but the reference is there; it was already sent to the Supreme Court on October 22. The court has already fixed a hearing date in January; so the legal process is on.

Since we are asked to legislate at the same moment that we are asking the court to interpret the substance of the legislation, would it not be better for us to suspend the implementation of the legislation until the decision of the court?

Because suppose the court comes to the conclusion that the interpretation of sections 5 and 6 of the Supreme Court Act are not in sync with what the bill purports to achieve, then the bill will be unconstitutional. We will have adopted something unconstitutional.

So instead of immediately adopting something that the court might find down the road is unconstitutional, would it not be better for us to suspend the adoption of this bill until the court has ruled? And if the court rules in sync with the purpose of the bill, we will not need to adopt the bill; the court will already have ruled.

Ms. Mathen: To my mind, section 53, the reference power in the Supreme Court, would allow the moving party to withdraw. There's no other vested right, for example, that would be affected. So I would say it's not clear to my mind that the reference must go forward. With that in mind, there is a choice, I believe legitimately, that the government would face, one of which would be to suspend passage of the bill. But I'm not prepared to say that given the current structure of the way that references proceed in the Supreme Court that the reference must happen. It does not need to happen.

Mr. Bastarache: Is the Supreme Court not being asked whether the federal government has the power to amend the Supreme Court Act?

Senator Joyal: I can read the questions to the court. I have them here in front of me. The first question is:

Can a person who was, at any time, an advocate of at least 10 years standing at the Barreau du Québec be appointed to the Supreme Court of Canada as a member of the Supreme Court from Quebec pursuant to section 5 and 6 of the Supreme Court Act?

That's the first question. The second question:

Can Parliament enact legislation that requires that a person be or has previously been a barrister or advocate of at least 10 years standing at the bar of a province as a condition of appointment as a judge of the Supreme Court of Canada or enact the annexed declaratory provisions as set out in clauses 471 and 472 of the Bill entitled Economic Action Plan 2013 Act, No. 2?

In other words, the government is asking to pronounce on this bill, on the constitutionality of this bill, and we're asked to adopt the bill at the same time.

Mr. Bastarache: That's why I was asking that you read it out. I think it's very improper to ask whether you can adopt the legislation and adopt the legislation before you get the answer.

Senator Joyal: That's what I think. That's why I propose that we suspend the adoption of this bill, or we don't proclaim the bill, at least, or the bill would not come into force until a specific date down the road, so that we're not caught in an untenable position here.

Mr. Bastarache: You could, however, pronounce on the ability of the federal government to adopt a bill such as that, if the first question is answered in a negative by the Supreme Court.

Senator Joyal: Yes, but we are in the ``if'' context.

Mr. Bastarache: Yes.

Senator Joyal: So that's why what I want to get from you is what should be the logical approach to this.

Mr. Bastarache: Since you're asking the Supreme Court, ``Do we, Parliament, have the power to adopt this legislation?'' I would think the logical approach is to wait for the answer before introducing legislation.

Senator Joyal: That's what I think.

Are you of the same opinion, Professor Mathen?

Ms. Mathen: The reason I qualify my answer is that I don't see the reference function in itself binding the government in any way. The reference function is purely advisory. I think you could certainly make an argument that, having now sought the advice of the Supreme Court, the government has indicated uncertainty, but that's a political stance that the government can take. Do I think it would be prudent to wait for the answer? Yes. Do I think that they are required to wait for the answer or they could resile from the proceeding? I think they could do that.

[Translation]

Senator McIntyre: My first question is for Justice Bastarache. Welcome to the Senate of Canada. I understand that sections 5 and 6 are only declaratory amendments and that they make no changes to the present act. They simply provide clarification.

Do you think it was necessary for the government to make legislative amendments to sections 5 and 6? Were the provisional amendments made insufficient?

Mr. Bastarache: Based on my interpretation of sections 5 and 6, it was not necessary to provide clarification because I believe it is clear that a Federal Court judge can be appointed to represent Quebec on the Supreme Court of Canada. Now legislation can be adopted to clarify matters if that is not clear. In my opinion, however, we should really wait until the Supreme Court has ruled in the negative before concluding that there is a need to bring in an amendment.

[English]

Senator McIntyre: My second question is directed to Ms. Mathen. Justice Nadon's appointment to the Supreme Court of Canada, as you know, is currently being challenged in Federal Court, based on two arguments. The first argument relates to the interpretation of sections 5 and 6 of the Supreme Court Act. The second argument is, as I understand, a constitutional one, and it relates to certain sections of the Constitution Act, 1982 and, more specifically, 41(d).

As we all know, those sections have yet to be judicially interpreted, and there's a lot of disagreement amongst constitutional scholars. In your opinion, how successful will those two arguments be before the Federal Court, when the Federal Court hears that matter? I know it's just a question of opinion, but still.

Ms. Mathen: I would be able to answer those questions in terms of my opinion of the merits of the argument as opposed to how the court might decide.

As I have stated in my scholarship, I do believe that as currently drafted and taking into account the historical information that we have with respect to the intention of Parliament, the current section 6 does pose a statutory bar to Federal Court judges satisfying the requirement. I think it's a closer issue with respect to the bar membership, and Professor Plaxton and I have detailed our reasons for coming to this conclusion.

With respect to the constitutional argument, that is a very close question, because of course the Supreme Court Act itself has never been regarded as a part of the written Constitution of Canada. It's not mentioned in the list of documents in section 52. That list, though, has generally been thought of as being non-exhaustive, which raises the possibility that mere statutory law could in some way be incorporated into the Constitution, and that is a question, I think, that we need some guidance on.

We've just had three days of debate in the Supreme Court of Canada around section 5. We have no jurisprudence on it. Frankly, we're a little bit at sea in terms of knowing what is the proper approach even to an amending formula. Is it the traditional living tree approach, the progressive approach? Is there more room for the framers' intent? Should we be a little more cautious in terms of expanding the written meaning of Part V? Because amendment is a political procedure.

We assume that constitutions are not drafted in vain and that no particular provision is redundant or has no meaning, and so the mention of the Supreme Court in Part V has to mean something. I'll confine myself to section 41(d).

I do think that the specific mention of composition in a part that requires unanimity at the very least confirms the current practice of the special reserve of seats for Quebec. I do not believe that composition in this case includes qualifications. So I would draw the distinction there, and that's how I would answer the question.

Senator Baker: In view of what Justice Bastarache has given us, his opinion that we should not pass this measure until the Supreme Court of Canada has made a judgment, I note that there is no coming-into-force section following this particular division that we're talking about here; that the coming-into-force provision in this bill is at clause 470, whereas the Supreme Court Act is at clause 471. So perhaps the committee can make note of that when reporting back to the Senate, and thereby back to the government.

My question, Justice Bastarache, relates to an opinion that you've expressed here today that a Federal Court judge or a judge of the Appellate Division of the Federal Court deals with important matters such as immigration, marine matters, taxation and many other matters that are covered by federal laws that are not covered in the Supreme Court divisions in the provinces.

However, the Government of Quebec put forward a very strong argument that the person selected — obviously, Justice Nadon - was not their selected choice, or they wouldn't be so outraged at the appointment. But they believed that the appointment should have come from their superior court or the appellate division of the superior court in Quebec.

You have pointed out that you believe that the appointment could come from the Federal Court, because the Federal Court deals with very important matters that are not dealt with at the Superior Court level and the appellate division of the Superior Court in the province.

However, don't you think that section 30 of the Supreme Court Act sort of negatives your argument in defining where the ad hoc judges should come from in the case of Quebec? In the case my friend Senator Joyal has just passed to me, it says:

Unless two of the judges available fulfil the requirements of section 6, the ad hoc judge for the hearing of an appeal from a judgment rendered in the Province of Quebec shall be a judge of the Court of Appeal or a judge of the Superior Court of that province designated in accordance with subsection (1).

Why would that provision be there, if not to address the very concern that has been expressed that a judge of the Superior Court or the appellate division would deal with matters that are Quebec-based more so than somebody of the Federal Court?

Mr. Bastarache: First of all, wasn't that adopted before the creation of the Federal Court? So you couldn't mention it; it didn't exist at the time.

The other thing is that I think the preoccupation was that Quebec courts be represented, and it was sort of a logical conclusion that you would name the two principal courts in Quebec.

Senator Baker: They could have said the Court of the Exchequer. It was the Exchequer Court that dealt with the very same matters the Federal Court is dealing with.

Mr. Bastarache: I don't think so.

Senator Baker: Prior to 1968.

Mr. Bastarache: The jurisdiction is not identical.

Senator Baker: That's true. You are right.

Mr. Bastarache: But the question, I think, wasn't really posed in that sense. I think what you wanted was to make sure that the one-third representation of Quebec was ensured, and they found that that was the most convenient way to define it. But you are talking only about a very short representation there.

Senator Baker: Yes. Let me ask you a question I asked to the former witnesses, something I've not really put my mind to, but it's the wording of the section that we are asked to consider, and the words ``for greater certainty.''

As I recall, most of the legislation in the past — I've been here for some 40 years watching legislation go through these committees — and invariably, nine chances out of ten, the English ``for greater certainty for the purpose of'' is usually accompanied by ``il est entendu,'' ``for the application of.'' This says ``il demeure entendu.''

The previous witnesses said they believe that is retrospective and not retroactive, but I put forward the opinion, just looking at it, that it appears to me to be retroactive in nature in the French version.

Do you have any opinion on that?

Mr. Bastarache: Well, ``demeure entendu'' simply means that there is no change, that basically it has always been the case.

Senator Baker: It has always been the case.

Mr. Bastarache: This, of course, is consistent with the ``greater certainty'' terms used in the English language.

But, of course, if the court doesn't agree that a person can be appointed under 5.1, then it is not for greater certainty; it's to change, basically. So I think they would have to amend at least that part and say that they are changing the Supreme Court Act. But as I said earlier in my original remarks, I think they can do that.

Senator Baker: Yes, but do you agree that by not using ``il est entendu,'' which is the normal reflection of ``for greater certainty for the purpose of'' in English, by using ``demeure entendu,'' that what in effect they're doing is they're making a retroactive declaration instead of a retrospective declaration?

Mr. Bastarache: It doesn't matter, because a declaration is a declaration. It doesn't create any rights.

[Translation]

Senator Dagenais: Thanks to our two witnesses. I followed you when you chaired the judicial appointments commission in Quebec. If I understood you correctly, the appointment of a judge to the Supreme Court cannot be invalidated because the judge does not reside in Quebec. I understand that it would be enough to be a member of the Barreau du Québec. I completely agree with you, but I wanted to clarify that thought with you.

We know very well, and Mr. Pelletier has described this very well, that the Government of Quebec is perhaps making a political issue out of this. Perhaps one should live in Quebec in order to be appointed a Supreme Court judge. I understand that being a member of the Quebec bar would be enough. You yourself mentioned that you are a member of four bar associations.

Mr. Bastarache: As you know, the Supreme Court judges who represent Quebec do not live in Quebec.

Senator Dagenais: I am pleased to have that clarification, Mr. Justice. Thank you very much.

[English]

Senator Jaffer: Thank you both very much for your presentations. They were really interesting. I have one narrow question and then a wider question.

For you, justice, my question is this: While you were on the bench, did you ever have a situation where you both had a reference and then Parliament was studying that same issue at the same time?

Mr. Bastarache: No.

Senator Jaffer: So this is an unusual situation?

Mr. Bastarache: But I might remark that when I was on the bench and Louise Arbour was on the bench, we were five judges with training in civil law. Quebec was not under-represented.

Senator Jaffer: That was my second question. But my first question was whether you ever had a situation of a reference in a bill in Parliament at the same time while you were a judge.

Mr. Bastarache: No.

Senator Jaffer: I guess it is difficult for the judges to be in this kind of position, but I won't have you comment on that.

My larger question is because I come from a certain part of Canada and certain representation that is not at all represented in the court systems, and has never been. The ethnic community has never been represented in the Supreme Court of Canada. I very much respect Quebec's legal culture and the civil law. I respect that. I'm not talking about that. But in a way, we are tinkering with this, because we really need to look at the Supreme Court of Canada is really not representative of the new Canada.

I would like either of you to comment. If you are really looking at changing the way the Supreme Court works, definitely to protect the civil, but there are other communities that need protection as well. Because it talks about legal culture, so I would like both of your views on that.

Mr. Bastarache: I think that question was raised in the Victoria Conference, in the different conferences that led to the amendment to the Constitution in 1982. But then that raises a lot of questions. It raises the question, of course, of regional representation, and you may remember at the time that the Western provinces thought that they were greatly under-represented.

Senator Jaffer: We still do.

Mr. Bastarache: Of course, there is no representation for the territories either, so that is a question. But it couldn't be raised without raising the other question, which was politically very difficult, which was the participation of provincial governments in the appointment process, or whether you would have an appointment process that would take out of the hands of the Prime Minister total discretion in the appointment.

But all of this means that you would have to have a constitutional amendment to deal with the issues you raise, and of course this is not the issue in front of us now. It's only a question of determining whether the interpretation of this act has to be what it is.

Why I disagree with my colleague here is that I think that the Supreme Court Act is not a constitutional provision, and you shouldn't use constitutional norms of interpretation to interpret general legislation.

The Chair: Ms. Mathen, do you wish to respond, as well?

Ms. Mathen: I would simply say that the larger question of how to ensure that the Supreme Court of Canada meets the needs of the country as a whole and responds to feelings of inclusion or alienation is an important one. It is interesting to note that decades ago there was a suggestion that British Columbia be guaranteed a judge. Western alienation reaches far back.

I would say that it is clear that this legislation is a response to a particular situation that is being narrowly construed and, you know, it leaves many other questions unanswered.

Senator Batters: Thank you both for attending today. I have to say, to be able to review the opinion of one former Supreme Court judge and then to have another one testifying before us today is very much an honour, so thank you for coming.

Mr. Justice Bastarache, I have one comment and then a question for you. First of all, I thought the point you made in your opening statement about how section 6 can't be read in isolation because we need to view it in the general context and because it also refers directly to section 5 — so you can't disqualify someone who is already qualified by section 5 — I thought that was a very important point that we need to remember here.

Here is my question for you, sir: I think that I read in the materials that this particular reference is being heard by the court in January. Given your experience on the court — I'm not asking for a precise time — what would a normal time frame be before a judgment would be rendered on that sort of a matter?

Mr. Bastarache: I think this is a very unusual reference, and the time will be very short. I don't think it will be more than a few weeks.

Senator Batters: A few weeks, okay.

Mr. Bastarache: A few weeks. Because the other references were very different, like the succession of Quebec or something like that, well —

Senator Batters: Or the Senate.

Mr. Bastarache: Or the Senate. You would need a lot more consideration. But here it is a very technical issue, and I think people probably have a view and will test it against the representations that are made.

Senator Batters: Yes, because Mr. Justice Nadon — I believe he was appointed in the late summer; is that correct? Given the circumstance right now, he can't hear cases until this is resolved. So until this is resolved, the court is hearing cases with eight members. There's always the prospect, I guess, of a 4-4 tie in that sort of a situation.

The Chair: We have a few minutes left if there are any additional questions. Senator Joyal, briefly.

Senator Joyal: You qualify the Supreme Court Act as being non-constitutional on the basis — we heard from Professor Pelletier that it is not in the list of 52, but we all know the decision of the Supreme Court is very clear about this — that the list of 52 is not exhaustive. They are legislation, and I remember to have read some very eloquent decisions coming from you that qualify the Officials Languages Act as being quasi-constitutional, considering they refer to basic principles underlying the Canadian constitution, like the protection of minorities, and linguistic minorities, of course, being at the core of the federal structure that we have.

I am tempted to conclude that the Supreme Court Act is quasi-constitutional legislation, being mentioned specifically twice in Part V of the Constitution under sections 41 and 42. And if you read the marginal notes of the framers in 1981, they wanted to give substance to those two sections, because they clearly spell them out of the power of section 44 for the federal government to unilaterally change the constitution of Canada in relation to the executive government: the Senate and the House of Commons.

My reading of Part V in relation to the Supreme Court would seek to give it substance, because the legislator speaks for a purpose, and it was not put in under subsection 42(1)(d) for the sake of adding to the list. Section 42 says any amendment in relation to the Supreme Court of Canada. It is a very broad approach to the Supreme Court Act.

I'm more concerned about the interpretation of the Supreme Court, especially in relation to the principles that are at stake in sections 41 and 42; they call upon the intervention of the provinces, either in unanimity — 41 — or 7/50. In other words, it calls upon what I call the federal amending formula. And if the legislator has put the Supreme Court of Canada — anything in relation to the Supreme Court of Canada — under the federal approach, that is, a concurrence of seven provinces, it has to mean something.

It also has in section 41(d), to me, the composition is not only three seats from Quebec; it is three seats with a civil law capacity. Otherwise, it would mean three seats to be occupied by anybody. That's not the purpose of the composition of the Supreme Court.

It is essentially because one of the key fundamental principles of our federal structure is that we have two legal traditions: the common-law and the civil law tradition.

It seems to me that it is very fast concluding to say that in section 41 the composition is only the three seats. To me, the civil law tradition is enshrined under subsection 41(d), as much as the essential characteristic of the Supreme Court of Canada is functioning in its essential characteristic — are enshrined under 42(d), that is, 7/50. Otherwise, it would mean nothing.

That's why I'm not of the view that the Supreme Court Act is merely another Canadian statute. It is a statute with a quasi-constitutional substance, because it is formally recognizing the amending formula under the federal amending formula; that is implying the concurrence of provinces at various degrees. Don't you think —

Mr. Bastarache: I agree with you, but not with regard to the whole act. If you read the whole —

Senator Joyal: I said ``the essential characteristic.'' I didn't say the daily functioning.

Mr. Bastarache: When we say that some legislation is quasi-constitutional, it is because, as you said, it refers either to the implementation of charter rights or because of the fundamental principles of the constitution.

Now, the Supreme Court, of course, is an essential part of the constitution in the sense that it has the power to invalidate legislation. It is part of the democratic guarantees for the nation, so those aspects of the Supreme Court Act — I think you're right — could be seen as constitutionally protected and couldn't be changed unless there was an amendment to the constitution.

But I don't think you can say that for the whole act or everything that's there.

Senator Joyal: I'm not contending that.

Mr. Bastarache: And I think, for instance, that the amendment to provide that the judges be bilingual could be adopted without any kind of constitutional amendment.

I think I lost my train of thought. I wanted to address some other issue that you raised there.

The Chair: We're going to have to wrap up, in any event. I want to thank Professor Mathen for appearing here today and providing her input on this issue, as well as Justice Bastarache. As Senator Batters indicated, it was a real honour.

Mr. Bastarache: I will just add one thing. I remember now. You say that the guarantee of three seats is mostly a guarantee that there will be competency in the civil law, but that is guaranteed by the fact that you either have to be a judge from Quebec or have practised civil law in Quebec — or under the civil law system in Quebec — for 10 years.

In that sense, you will necessarily have, within the three members of Quebec, someone who has civil law training.

The Chair: I'm glad you had the opportunity to get that on the record. Maybe Senator Joyal would like to discuss it further with you after the meeting.

Again, it has been a real honour to have a former Supreme Court justice appear before us. It is very much appreciated. Your input will assist us in our deliberations. Thank you very much.

We will meet next Wednesday, when we will have the minister and officials appear before us.

(The committee adjourned.)


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