Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 1, Evidence - November 27, 2013


OTTAWA, Wednesday, November 27, 2013

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:26 p.m., in public, 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, and in camera for the consideration of a draft report.

Senator Bob Runciman (Chair) in the chair.

[English]

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

We're meeting today to continue our study into the subject matter of Bill C-4, the 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 public hearings and then to report our findings to the Senate by November 29, 2013 so that both the Senate and our colleagues on the Senate's National Finance Committee can consider the evidence and comments that we will gather on this part of the budget bill.

To conclude our witness testimony on the study, I would like to welcome to the committee today the Honourable Peter MacKay, Minister of Justice and Attorney General of Canada. The minister is accompanied by Jonathan Shanks, who is Counsel with the Constitutional, Administrative and International Law Section of Justice Canada.

I'm not sure, minister — do we still have an hour of your time?

Hon. Peter MacKay, P.C., M.P., Minister of Justice and Attorney General of Canada: Absolutely, yes, Mr. Chair.

Thank you, Mr. Chair and honourable senators. I begin with an apology. I was literally coming from the chamber where we were introducing another bill that will be making its way here shortly, I hope — Bill C-13, cyberbullying and other amendments related to electronic communications.

But to the issue before us, this is my first occasion to appear before you in this new capacity as Minister of Justice and Attorney General of Canada, and I'm here to speak about the declaratory provisions of the Supreme Court Act proposed by Division 19, Part 3 of Bill C-4, as outlined by your chair.

Canada, as we know, is a very rich and diverse country with a unique legal landscape, the history of which you are familiar; and of Canadian federal law, which benefits not only from the advantage of bilingualism but also bijuralism, which is the co-existence of two of the world's leading traditions, the civil law and the common law. This diversity is, I suggest, at the very core of the provisions you are analyzing today.

These declaratory provisions have been introduced to facilitate the clearest interpretation of the Supreme Court Act and, more precisely, to clarify that the most basic criteria for the appointment to the Supreme Court of Canada are the same, regardless of an appointee's province of origin. These provisions will ensure that all future governments will draw from the ranks of the most talented, intelligent and experienced jurists who sit on Canada's federal courts, in filling vacancies in the highest court in the land. Legal excellence and merit remain the criteria to appointment to the highest court.

[Translation]

I am hopeful, honourable senators, that public consideration of these provisions in Parliament will also help the public to better understand the crucial role played by the federal courts, and remove any doubt as to the eligibility and suitability of its judges for appointment to the Supreme Court of Canada, including the members of the Court of Quebec.

[English]

I'm hopeful that public consideration of these provisions in Parliament will allow the public to better understand the work of the federal courts and remove any doubt as to the eligibility and suitability of its judges for appointment to the Supreme Court, including members of the Court of Québec.

In the government's view, the eligibility of federal court judges to fill any vacancy on the Supreme Court is not in doubt. It is solidly supported by a legal opinion prepared by respected former Supreme Court Justice Ian Binnie, who I believe appeared before your committee. His opinion was supported by his former colleague, the Honourable Louise Charron and leading constitutional expert and emeritus professor, Peter Hogg. Prominent legal experts in Quebec such as former Justice Décarie and former Quebec minister Benoît Pelletier have been clear on the interpretation that must be given the Supreme Court Act. I would like to quote Professor Pelletier, a former minister of intergovernmental affairs.

He said:

[Translation]

It was never the intention of the legislator to exclude as candidates to the Supreme Court, justices of the Federal Court or of the Federal Court of Appeal.

[English]

However, as you are aware, despite the considerable weight of legal opinion and expert opinion, some have continued to question the eligibility of the Federal Court judges as to the appointment to the Supreme Court, particularly as members of the court representing Quebec.

This challenge was launched, as many would know, by a Toronto lawyer in September, thus delaying the process of appointments thus far.

In order to resolve this critical matter as soon as possible, the government is proceeding on two fronts. First, the matter has been referred to the Supreme Court itself to confirm, first, the meaning of the statute and, second, Parliament's authority to enact legislation which requires that a person be or has previously been a barrister or advocate of at least 10 years' standing of the bar of a province as a condition of appointment as a judge of the Supreme Court of Canada or to enact the declaratory provisions under consideration here today.

On the other front, Bill C-4 was determined to be the most expeditious and efficient way of introducing declaratory provisions and ensuring that they are enacted on time to guarantee that federal court judges can be considered in the process of filling upcoming Supreme Court vacancies, the first of which will arise early next year.

These declaratory provisions clarify, without making substantive changes to existing law, that individuals with at least 10 years at any bar in Canada, including the Quebec bar — and these are the operative words — at any time during their career are eligible to sit on the Supreme Court of Canada.

It is really in essence those simple words and phraseology ``at any time'' that we're here discussing as part of the declaratory provisions.

Mr. Chair, I want to stop here and just take a moment to make a point that may appear a bit technical, but it is of central importance to this committee's consideration of clauses 471 and 472 of this bill. The provisions that these clauses introduce differ in quality and consequently in effect from the types of statutory amendments that are generally considered and debated in Parliament and presented to committees like yours.

The provisions are declaratory in nature and as such they do not amend the legislation, the Supreme Court Act. They do not amend it in any way that a standard statutory amendment would. Typical statutory amendments, I need not tell you, enact new provisions or changes to existing provisions and they do so in a way that makes a different result or a substantive interpretation from provisions that they would replace or modify.

The nature of the proposed declaratory provisions is intended to explain or to reinforce or to provide certainty for the proper interpretation of the law from the time that the law first came into force. So in other words, what we're attempting to do is put ourselves in the place of the legislature as it was initially presented to ensure that every proper interpretation is put in place.

[Translation]

The Supreme Court of Canada recently explained the impact of declaratory provisions in its 2013 decision in Régie des rentes du Québec v. Canada Bread Company. The court stated in that case:

The interpretation imposed by a declaratory provision stretches back in time to the date when the legislation it purported to interpret first came into force, with the effect that the legislation in question is deemed to have always included this provision.

[English]

In keeping with the purpose of declaratory provisions, clauses 471 and 472 confirm the basic requirement that judges must meet to be appointed to the Supreme Court of Canada. These provisions make it clear that the current wording of these sections does, in fact, allow judges at the Federal Court to fill Quebec vacancies on the Supreme Court of Canada as long as at some point in their legal career they have been members of the Quebec bar for a minimum of 10 years. This ensures that current and former members of the Quebec bar are treated the same — and this is again a founding principle here — as they would be had they come from any other province in Canada.

And so in conclusion, I want to point out as well that the appointment of Federal Court judges to the Supreme Court of Canada is in no way novel. Many of this committee are practicing or formerly practicing members so this is the precedent part of my presentation. Mr. Justice Marshall Rothstein, a current member, an esteemed member of the court was a member of the Manitoba bar, appointed to the federal court then to the federal Court of Appeal and ultimately to the Supreme Court of Canada in 2006.

Prior to him, Mr. Justice Frank Iacobucci and Gerald Le Dain, both members of the Ontario bar, followed the exact same route, having gone through federal court and federal appeal court and ultimately Supreme Court, albeit not from the province of Quebec.

In that aspect, this is breaking new ground. I would also point out, and it should not be surprising or unexpected, that Supreme Court vacancies in the past have been filled from the ranks of Federal Court judges. Experience on the Federal Court, in my estimation, enhances rather than negates a long-time advocate's qualifications to serve on the Supreme Court.

The Supreme Court regularly hears appeals from decisions of federal courts. In 2012 alone, the Supreme Court heard 10 appeals from the decisions of the Federal Court, compared to 15 from the much larger Quebec Court of Appeal.

Now, as I mentioned at the outset of my remarks, it has been suggested in particular that judges of the Federal Court ought not to be appointed to satisfy the requirement under section 6 of the Supreme Court Act — that three of the nine judges of the Supreme Court of Canada be appointed from Quebec.

The argument is that since Quebec is a civil law jurisdiction, where the Quebec Civil Code applies, only those who practice in Quebec at the time of the appointment must be filled or who sit on the Quebec Superior Court are qualified.

I would suggest that this argument is demonstrably without merit not least because it reflects a fundamental misunderstanding of the nature of the work of the federal courts. Judges of the federal court have jurisdiction over a wide and diverse and pan-Canadian area of the law.

The principle of bijuralism means they must regularly provide federal laws in accordance with legal rules and principles in force in from the province from which the matter arises. That includes Quebec. For matters arising from Quebec, this means that judges of a court like the Federal Court of Appeal must routinely interpret Quebec Civil Code matters in deciding issues that arise in a complex and diverse area of law. Areas of tax, copyright, bankruptcy, all coming from Quebec, routinely wind up in the Federal Court and Federal Court of Appeal.

That is why, like the Supreme Court Act, the Federal Court Act requires that there be a minimum number of judges on the Federal Court and Federal Court of Appeal from the province of Quebec. So, at any time, ten on the Federal Court and five on the Federal Court of Appeal come from Quebec. The objective of this statutory requirement is precisely the same as that of section 6 of the Supreme Court Act: to ensure that the courts have the requisite bijural capacity to deal with matters that arise from both civil and common law systems that define our system of administrative law in Canada.

To exclude eminent Quebec jurists appointed to the Federal Court in satisfaction of such a requirement from consideration for appointment to the Supreme Court in satisfaction of essentially similar requirements evidently makes no sense. Indeed, it would only serve to weaken the guarantee provided by section 6 of the Supreme Court Act.

[Translation]

Moreover, as the Honourable Robert Décary, former Justice of the Federal Court of Appeal, has recently and eloquently observed in La Presse on October 26, 2013, to suggest that a judge of the Federal Court trained in civil law does not have the level of expertise in civil law that section 6 is intended to protect is to ignore the practical reality of Canada's, and the world's, legal landscape.

[English]

Mr. Chair, in addition, taking a restrictive interpretation of section 6 of the Supreme Court Act would exclude not only judges from the Federal Court but also many other candidates for appointment to the Supreme Court of Canada. For example, judges of the Quebec Court would be excluded as they are neither judges of a superior court or Court of Appeal, nor are they current advocates. Quebecers who are judges on an international court, I suggest, would also be excluded, and we have examples where this has occurred. This has been noted by Professor Benoît Pelletier in an interview he gave to Radio-Canada on October 23. According to him, the provisions should be interpreted not only on the letter of the law, but, as we have often heard, on the spirit of the law.

Mr. Chair, by taking this legislative step and also referring this question to the Supreme Court of Canada, our government is defending the eligibility of members of the bar of all provinces and territories to sit on the highest court of Canada. Members of the Quebec bar should be and, under law, will be treated the same as lawyers in any other province and territory. We view this as the most expeditious way to proceed and provide clarity for future appointments.

Our government looks forward to a prompt and conclusive resolution of these questions, ensuring the continued eligibility for appointments to the Supreme Court of eminent jurists of Canada's federal courts so they can help to ensure that our Supreme Court will also maintain the long tradition of independence and excellence that has made it the envy of both developed and undeveloped democracies.

This concludes my remarks, and I look forward to your questions.

The Chair: Thank you, minister.

Senator Joyal: Welcome, Mr. Minister, in your new capacity. We will be happy to see you more often, especially at this committee.

I followed your reasoning quite attentively. I still have certain elements of questions in relation to the study that Justice Binnie has been providing to you. I will start with the fact that he didn't take into account that there is a discrepancy between the original Supreme Court Act of 1875 and the Consolidated Act of 1886. As you know, according to the Revised Statutes Act:

The Revised Statutes shall not be held to operate as new law, but shall be construed and have effect as a consolidation of the law as contained in the Acts . . .

The principle is that when you do consolidation, you can't change the substance of the act. I think it is a principle that is well known and respected generally by the initiative of consolidation. It seems to me this has not been reconciled in the opinion of Justice Binnie. Would you care to comment on that?

Mr. MacKay: As I said, what we're seeking to achieve practically here is, yes, the reconciliation of the legislation but, most importantly, I would suggest, provide clarity within the act itself.

I think the discrepancy, if we're talking about the same elements here, is attributed in two ways. It is partly in the language itself, and that is why this declaratory provision to insert ``at any time'' for the purposes of that requisite period of 10 years at the bar in the province of Quebec and elsewhere. The second is the interpretation of the two sections read in unison, so sections 5 and 6.

Again, in the province of Quebec, perhaps more than any other province, there is a profound appreciation of the need for clarity. That is why we have chosen this two-track approach to bring it in in legislation through a declaratory provision, while at the same time seeking the wisdom of the court.

Senator Joyal: In other words, you are not troubled by the fact that the present act, the one on which we base our interpretation of sections 5 and 6, is in fact a change to the original act that happened through the consolidation initiative?

Mr. MacKay: I'm not troubled by it because I think the wording that we seek through this declaratory provision will, for all future interpretation, provide the necessary instruction and clarity on the subject of eligibility.

I don't want to lose sight of what we're trying to achieve here, which is to ensure that Quebec is on par with every other province in terms of the eligibility of excellent jurists, whether they come from the practice of law, as advocates of 10 years or more, or whether they follow the route that others have from other provinces. I cited the precedent-setting example of a current serving justice and others who went through the Federal Court.

I think, quite frankly, and I think importantly, it would really disadvantage Quebec if we have already accepted the judges who came from other provinces, Ontario in the west and the east, who have followed this route to the Supreme Court of Canada, and yet, based on a Toronto lawyer's submission, that Quebec lawyers, advocates of the same quality, would be barred from pursuing that same route and disadvantaged, in my view.

Senator Joyal: I think you will recognize, Mr. Minister, that the point in debate at the Supreme Court, because I was listening to your answer in the context also of the reference that you made to the Supreme Court yourself, is not only the substance of the bill, because the court will have to look into the original statutes,

Mr. MacKay: Yes, of course.

Senator Joyal: It is a matter of interpretation that is at stake here. We have to recognize the objective is not only to make sure that lawyers from Quebec or judges come from Quebec are at par with judges and lawyers coming from the other provinces. Any one of us will recognize that.

The problem is, essentially, to make sure that there is a capacity of expression of the civil law tradition, which is, as you said quite properly in your opening remark, the protection of bijuralism in the country. This principle, in my opinion, is very well entrenched in section 41 and section 42(d) of the Constitution. That was the objective, to entrench the Official Languages Act in 41 and to entrench the principle of bijuralism. The principle of bijuralism expresses itself through the civil law tradition. That's why, when I think we have to balance the law qualification of lawyers, we have also to balance their capacity to express the civil law tradition in the life of the court. That is when the court is faced with an issue involving the civil law tradition. That's where I think there is another element to the one you propose, which is to put all the lawyers at par and all the judges at par, be he or she a judge of the Federal Court or a lawyer with 10 years or past years of professional experience.

This is the key element, in my opinion, that is at stake in the reference that you have made to the court, and that's why I am concerned. In section 30(2) of the Supreme Court Act, and maybe Mr. Shanks will have it handy, when there is the need to appoint an ad hoc judge for the hearing of an appeal, and I'm reading from paragraph 2 of section 30:

. . . 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).

It doesn't speak of a judge of the federal court that would have training, for instance, in the civil law, as you said, that properly occupies seats in the federal court.

It seems to me that this section should be read in sync with section 6. It is more or less the duplicate of section 6 in terms of substance, because when you have to appoint an ad hoc judge, it has to come from the Court of Appeal of the superior court of the province and from no other court. In other words, somebody with immediate training, present training, in the civil law tradition.

How would you reconcile that section with the interpretation that you propose to widen the pool of judges among, as you said, judges of Quebec, the federal court and so on? In this section of the Supreme Court Act, it is strictly restricted to the superior court and court of appeal of the province.

Mr. MacKay: If I could respond to a very good question, senator. The first is the historic context. As you would know, the federal court did not exist at the time of the drafting of this legislation.

Again, I come back to the original premise that we want to be able, in modern times, to draw from the deepest and most intelligent pool of Quebec jurists in order to, if I can use the expression, have the intellectual horsepower at maximum capacity in our Supreme Court.

In order to do so, I come back to this element of Federal Court and Federal Court of Appeal in the current context, and when you examine the way in which the requirements in those courts mirror the intent and the spirit of the Supreme Court Act to draw specifically from advocates from the province of Quebec to ensure that they have that very specific and unique element of the practice of law in Quebec, civil law expertise, and the requirements that, within the Federal Court, as in the superior court, the Supreme Court of Canada, they will have that capacity, which is why I made the point of setting out — and you are certainly well aware — that the federal court and the Federal Court of Appeal routinely deal with matters of civil jurisdiction. So any suggestion that a jurist, because they have served in the Federal Court, is somehow disadvantaged or unable to grasp the concepts of civil law and civil jurisdiction is simply folly.

I would point out, as well, that the description of ad hoc judges is not as broadly interpreted as a full judge in the current context.

Senator Joyal: Yes, but on the other hand, it could be very determining in a case involving civil law, because that's where it would happen. In a case that involves civil law, there's a need for an additional judge, and then, in which pool will we be fishing — I know you like fishing — to get a learned justice to help to break the deadlock of two judges that might be closed in in a civil law issue?

Mr. MacKay: I wish I could think of a clever quote from Mr. Justice Fish to respond to you, but I would suggest, honourable senator, that the bigger picture here is very much the intention to have the broadest pool from which to draw, and the reading of the two sections together, the examination of the Federal Court and Federal Court of Appeal, which encompasses the civil law, expands our ability to maximize that depth of talent and intelligence that we need in the Supreme Court.

To do otherwise, to take the interpretation which has been argued or will be presented by those who have issued the challenge, would disadvantage Quebec jurists. When looking at the scales of justice, that is what, I think, we are most required to undertake, to ensure that Quebec jurists, Quebec lawyers, advocates are treated on par with those in the rest of the country who aspire. As you know, it is already a very limited pool who will ever be considered to reach that pinnacle of law in Canada.

Like athletes, like business, like politics, we want the very best serving in that capacity.

[Translation]

Senator Boisvenu: Good afternoon, minister, welcome to the committee, to what appears to me to be a debate among constitutional and legal experts. I am going to try to ask some perhaps more practical questions.

At the outset, it appears somewhat illogical to me that a judge who would be appointed to the Federal Court, perhaps from Quebec, for instance, would as a prerequisite lose the right to be appointed to the Supreme Court. That seems somewhat illogical to me. I think you would lose some very good candidates if the fact of being appointed there meant that they stood no chance of being appointed to the Supreme Court, that they would have no access to that opportunity. This makes no sense to me.

I would like to go back to your testimony, where you referred to Professor Benoît Pelletier, who is, I believe, recognized as a noted constitutionalist, especially given the role he played within the Department of Intergovernmental Affairs, where he represented the Government of Quebec for many years. His testimony last week was to me the most convincing that in this file, the current government is not mistaken.

He did, however, raise certain points that seem interesting to me and I would like to ask you about them. First, he stated that it made no sense to interpret the Supreme Court Act as disqualifying, right from the outset, all of the judges of the Federal Court. This is an interpretation which, according to Professor Pelletier, does not hold water.

He raised another argument, stating that the bill that is before us may not be necessary. Regarding the decision made by the federal government to appoint Judge Nadon to the Supreme Court, Professor Pelletier said that the government was not mistaken in discharging its responsibility in this way. The current act allows the government to appoint a judge from the Federal Court. He also said that this bill may not be necessary.

So my question is the following, Minister: is the purpose of the bill to provide greater certainty, to ensure that you are really well protected? Is that your position?

[English]

Mr. MacKay: I think that's a fair characterization. I think what we want to do in all instances — and it is the wont of lawyers to interpret and read in, in some instances, different interpretations — but I think what left some confusion here was that we had the 10-year eligibility of advocates and the Supreme Court. There was no specific reference of Federal Court anywhere in the legislation because, as I said previously, it didn't exist, and there was this anomaly that had to be addressed.

The way in which to do that is either have a court read in the interpretation, which will happen, but at the same time, we have also taken the step to use these declaratory provisions, which simply add for context ``at any time'' that the 10- year period of service — and I would suggest and I would defer to, in fact, the expertise of those who have practised in Quebec, but if someone has practised civil law in Quebec for 10 years and then — and I use the hypothetical example, but it has application here — an individual then leaves the practice of civil law in Quebec, in fact, for 20 years, serves on the Federal Court, which also deals with civil matters, for 20 years, and then is told in this instance that somehow that individual should be deemed ineligible to serve on the Supreme Court because he or she does not fit the technical definition of having served 10 years at the time of his or her appointment, and that individual is coming from a court that isn't described in technical language as a supreme court, while it has many of the same elements and the same mandate, I would suggest that would be prohibitive and unfair — profoundly unfair — particularly given the current knowledge that we have individuals who have come from that exact scenario from other provinces in Canada. But specifically the Province of Quebec, for reasons that I think are technical anomalies, would be barred from doing so.

That puts Quebec advocates and jurists at a distinct disadvantage. We're trying to reconcile all of this and leave not a shaft of daylight between what is interpreted and what is found in statute. We have taken specific steps to do that through the declaratory provisions, but also seeking, from the highest court itself, interpretation which we are quite confident will support this position.

Senator Baker: I would like to welcome the minister once again to the committee.

Minister, when you look at this provision in this massive bill, we find that at the end of Bill C-4, this provision called Division 19 is added, and it's added after section 470, which is the coming-into-force provision. In other words, there is nothing after this matter that says when it will come into force.

Do you have anything to say about that?

Mr. MacKay: Well, I would only say that upon examination by both the House of Commons and the Senate, and receiving fair examination by both and passage through both that it becomes part the Royal Prerogative for the bill as written to receive Royal Assent, even after the provisions that you have outlined, with the full knowledge that this was added, as you are well aware, after the fact, to expedite and to address this particular anomaly that we discovered.

Senator Baker: Minister, it's not part of a classic budget bill, I will give you that.

Mr. MacKay: No.

Senator Baker: The thing that struck me, when I read the provision, is the change in wording that normally accompanies for-greater-certainty provisions, for greater certainty, for the purpose of section 5, a purpose may be at any time.

The French doesn't say ``Il est entendu'' — ``It is understood''; as is normally, but not always, the case, it says ``Il demeure entendu'' — ``It has always been understood.''

So you read the English, and the English is something that would take effect from the time the measure is implemented, comes into force. And you read the French, and it says that it was always understood.

I'm wondering, in your mind, was the intent of this provision to be retrospective — in other words, something that applies to the past but would only be in force for the future — or is the provision, in your estimation, retroactive in that it would be changing the law backwards, and applied to some point in the distant past? Does it matter whether or not it is retroactive or retrospective in nature?

Mr. MacKay: I would answer this way, senator, and not being the linguist of your calibre, from the province of Newfoundland and Labrador, I would suggest it's both.

I would suggest that when you have a declaratory provision such as this, the intent is very much to interpret the law as it was intended at the time — thus taking a retrospective view to clarify — but also the intent is it was always thus, and always will be, looking ahead.

I want to narrow in on the language itself and the provision that we are attempting to clarify. The intent was that an individual served 10 years at the Barreau du Québec. Having done so, they have achieved what was set as a minimum qualification, or a minimum threshold that had to be met. To read it otherwise would be to suggest that somehow having achieved that level, that you can somehow lose or diminish that familiarity and that expertise of 10 years practising civil law if you went to another court, if you went to another province, and you would somehow negate or take away that 10-year experience, if it was not preserved and frozen in time.

If you practised law for 10 years in Quebec, at any time, you meet the threshold. Not if you practised law for 10 years in Quebec, left the province, didn't practise law for five years and went back. You can imagine all sorts of anomalies if the interpretation isn't — you've reached the threshold, you're there, you did it at any time, you achieved that proficiency, and you are therefore eligible.

That is my interpretation both then, in the past, and going forward.

Senator Baker: The opinion of a Supreme Court of Canada judge before this committee in our last committee hearing was that this provision should not be before us today, or it could be before us today with a coming-into-force provision at a distant time after the Supreme Court of Canada has made a judgment on this matter.

I think, Mr. Chair, this is what he said: He could not recall an instance in the past where a piece of legislation was before Parliament, and at the same time a reference was made to the Supreme Court of Canada.

Do you have any comments on his opinion?

Mr. MacKay: Far be it from me to dispute a former or sitting Supreme Court justice, as Justice Minister; I don't say that facetiously.

I don't recall, certainly in my experience, a situation such as this. However, because it deals with the Supreme Court itself, it makes it an even more unique moment in time.

It's very rare, I would suggest, and certainly I can't recall an instance where the Supreme Court arguably was sitting in judgment of itself and its own eligibility criteria.

We find ourselves here examining the path forward, but I return to the principle of why this is so critically important for the province of Quebec. What we want to do is ensure the widest eligibility on par and on exact, equal terms with other provinces in order to establish that legal excellence in supporting terms. We want the deepest pool of athletes, jurists, businesspeople, politicians to aspire to reach those positions.

By putting in place prohibitions, based on what I would describe as interpretations of language, that are limiting rather than enabling, what we seek to do here on both tracks is to clear that path for jurists and advocates from Quebec.

[Translation]

Senator Dagenais: Thank you, minister, and thank you, Mr. Shanks. For your information, minister, I sat for three years on the judicial advisory committee. You know how the committee works; there were seven members, and we examined applications from lawyers who wished to be considered for appointment to various positions. Some were applying to sit on the Superior Court, others to the Court of Appeal and others to the Federal Court. According to what we have heard today, it seems that if a Quebec lawyers wants to sit on the Federal Court, they would be disqualified, to all intents and purposes. When we recommended candidates, we recommended the most competent people, naturally, without regard to the court they wished to accede to.

That being said, certain critics in Quebec — and I am sure they are mistaken — have stated that you did not consult Quebec authorities in previous appointment processes. What would you answer to this statement from Quebec?

Mr. MacKay: Thank you for that question, senator. What you say is correct; in the judicial appointment process, regarding eligibility, our government has shown more openness than all other governments.

[English]

As a government, we have undertaken a process that, I would suggest, is far more open, transparent and consultative than any government in the past, so much so that we now have the nominee himself or herself appear before the parliamentary committees. That process, to be completely frank, did begin under a previous government. I remember, in opposition, sitting in awe as a young lawyer, cross-examining a future candidate for the Supreme Court. Yet, this is the process that I think has now been accepted.

We've gone further in including in that process not only the appearance of the judge before the committee. The eligibility process now includes members of the opposition as well, who vet and narrow down the list, and I note that, without naming the individuals, there were members from the Barreau du Québec. So, as we have seen and as we know in this particular challenge, the Province of Quebec, the Attorney General of Quebec and the government take issue with and have joined in this challenge. We respectfully disagree. We believe, coming back to your initial interpretation, that, to bar eligibility to a jurist because they have been chosen to go to the Federal Court as opposed to the Superior Court of the Province of Quebec, to me, limits career choice. It limits, perhaps, an individual's decision to go to the Federal Court prior to being selected. I remind everyone that, of course, there are only nine judges at the Supreme Court of Canada, so one could make an argument that we wouldn't be getting the best judges on the Federal Court. I think that, if the decision were to stand that they were prohibited, by virtue of going to the Federal Court, from ever being considered as judges at the Supreme Court of Canada, we wouldn't be getting the best judges at the Federal Court and the Federal Court of Appeal because people would say, ``I'm not going to serve there because I might, at some future date, aspire to be a Supreme Court judge.''

So it has that consequential knock-on effect. It goes far beyond simply limiting the pool in Quebec for the Supreme Court of Canada. I suggest it could have that chilling effect for our Federal Court as well, which would be a shame.

[Translation]

Senator Rivest: You have explained with great conviction the need for these declaratory provisions to allow judges of the Federal Court to have the same rights as other members of the bar to represent Quebec judges. Aside from legal issues, there is a serious political problem that involves the very credibility of the Supreme Court of Canada.

My first question is simple: if these provisions are that positive, necessary and effective, why did you wait until Judge Nadon was appointed to the Supreme Court to introduce them, thus putting him in an untenable position in the present, and one which is worrisome for his credibility as a judge in the future? If it was that important and necessary to introduce this, why not have adopted the declaratory provision first, and then appointed someone like Judge Nadon?

[English]

Mr. MacKay: To be clear, we anticipated that there could be difficulty, and, hence, we sought the legal opinion of Mr. Justice Binnie, Peter Hogg and Madame Charron, which you are familiar with. But, in terms of the point in time in which this became a problem, it was not until the lawyer in Toronto launched his objection that we realized. We anticipated it could be a problem. We sought to get a legal opinion to address any suggestion around the eligibility of Mr. Justice Nadon, but, until the time that there was an objection filed, it was clear sailing. Mr. Justice Nadon could have taken his place on the court. In fact, to be correct, he could take his position on the court, but he has chosen voluntarily to recuse himself. That was his decision. That was not at the request of the federal government or of me, as Justice Minister. He made that personal decision, and I respect that decision. To use your words, there would have been a cloud over him, but I think what we have before us now, honourable senator, is the opportunity to prevent any such anomaly or any such analogous barrier to a future Federal Court judge from Quebec facing a similar challenge. This is a point in time where we can clarify this issue, both from the executive branch and from our court simultaneously, a rare moment in time indeed. It emphasizes the importance of getting it right.

As for suggesting that we should have gone to the Supreme Court and waited before we amended the legislation or amended the legislation and then waited to put the question to the Superior Court, I would suggest we can do it simultaneously, with the goal — and I come back to the endgame, not a game but a goal — that we have a full complement of justices. There are only nine. There are very important questions, questions that affect the very existence of the Senate, so, to have a full complement of judges is, I would suggest, as important as having a full complement of senators or members of Parliament. They are decision-makers of great importance to our country, and they are shorthanded at the moment.

[Translation]

Senator Rivest: The fact remains that for a part of public opinion, this provision, rightly or wrongly, appears to be an attempt to correct an error or a blunder that was made by appointing a judge from the Federal Court for the first time, when people expected someone from the Court of Appeal. This is the interpretation that is being made of that. There is a political problem.

However, aside from that, the fact remains that Quebec has three judges on the Supreme Court, as you pointed out earlier, because of its civil law legal tradition. Are you not concerned about the appointment of the judge in question? That said, we are not questioning his competency in any way whatsoever.

You quoted Mr. Pelletier and other Quebec legal experts, even the Bar. The actions of the Canadian government in this matter were criticized not only by the Government of Quebec, which happens to be a sovereignist government, but also by the Liberal opposition and the Coalition.

I am putting the question to you for the following reason: as Minister of Justice, and you know Quebec well, you know that Supreme Court decisions regarding national unity deal with extremely sensitive topics, and language issues that have a considerable impact on Quebec. The credibility of the Supreme Court is already often called into question by a part of Quebec public opinion, and now, if a controversial decision is handed down, you can imagine what the reaction of a large part of Quebec public opinion will be. They will immediately want to know what the opinion of Judge Nadon was. Are you not concerned about appointing someone to the Supreme Court — and this is absolutely not his fault — who will be exposed to political debate?

Would it not have been preferable, for the sake of the credibility of the Supreme Court, to cancel the judge's appointment, to pass your declaratory provisions, and to then appoint either Judge Nadon or someone else from the Federal Court, who would then have been in compliance? The government is taking a big risk that may jeopardize the credibility of an extremely important institution in this country, the Supreme Court.

[English]

Mr. MacKay: It's a very interesting hypothesis. I would respond this way: Number one, I think we would be playing into the hands of what I don't believe is the majority of Quebec, and I say that having just come back from the federal, provincial and territorial meeting in Whitehorse, where the minister responsible for justice in Quebec did not raise this issue. There were many issues discussed; this issue was not among them.

I would suggest, as well, that it would have caused even more problems to simply ignore this issue and have it sidelined for future consideration of Federal Court judges from the province of Quebec. When the problem arises, when the issue is identified, in my estimation, it is incumbent upon us to act, to fix it, to fill the gap, to answer the hard questions and to move on regarding the subject of eligibility. As I said, this is a moment in time. There will be future judges considered, deemed eligible or ineligible, so we have to deal with this issue now. It is very much in the interests of Quebec, I would suggest.

And I believe very strongly in the position that we have put forward; that this is about enabling, expanding and being inclusive when it comes to the eligibility of capable jurists and advocates from your province, and also recognizing the very real, significant contributions to civil law that occurred daily in our Federal Court, both the appeal and trial division.

There is somehow — and this is my word — a ``marginalization'' of the Federal Court, were we to succumb to the demands of this lawyer from Toronto who began this challenge.

Senator McIntyre: Thank you, minister, for being with us today.

As you have indicated, on October 12, the government decided to follow two paths: It introduced Bill C-4 and referred two questions to the Supreme Court. I note that a tentative hearing for the reference to the two questions has been scheduled to be heard by the Supreme Court on January 15 next year.

My question is this: How important are these declaratory provisions in order to preserve the presence of Quebeckers in the composition of the Supreme Court? Why are these provisions important in order to achieve this goal?

Mr. MacKay: Thank you for the question. I believe they are important because they entrench it in legislation. Of course, we want the Supreme Court's endorsement and we await their decision early in the new year.

But as I said, for future consideration and future examination of this very section, on the subject and the implications of Federal Court jurists' eligibility, the very essence of this declaratory provision is to ensure that this wording, ``10 years,'' ``at any time,'' is interpreted in the broadest way, and interpreted in such a way that it will ensure the eligibility of Quebec advocates to meet that standard, and to broaden the pool.

Now, most jurists, we know, practically speaking, have more than 10 years of experience. It is because most judges — in fact, all judges, to my knowledge — are no longer practising members of the bar when they are elevated. So it's very few. In fact, I think there is only one, and perhaps Senator Baker can refresh us in terms of our memory. I think it was only Justice Sopinka, at least in recent years — there were others, going back in time — who was taken from private practice and elevated to the Supreme Court of Canada.

Having said that, and answering your question, I would suggest these very important provisions for clarity and for future interpretation.

Senator Frum: Minister, thank you very much for your time today. I think you've done an excellent job helping us understand this bill before us.

But as has been discussed, the Supreme Court will be hearing this reference, I think, starting January 15. And do you think there is any chance we could end up with the Supreme Court answering the question before them in a way that will clash with the proposed declaratory provisions, and, if that happens, what next?

Mr. MacKay: Well, that's a very interesting scenario, and I'm going to choose my words carefully because I don't want to be seen to in any way attempt to presume or pre-empt what the Supreme Court will do with this.

It is simply our contention that providing these declaratory additions, if you will, or interpretations to this legislation that we're doing our job as legislators, as the executive branch, bringing forward these provisions for which there is precedent — the Régie des rentes du Québec v. Canada Bread Company Ltd. case I mentioned. And the Supreme Court itself has ruled on the issue of declaratory provisions in law.

They will do what they will do. They will examine precedent, look at the legislation in considerable detail, apply the very keen mind that is the Supreme Court in every way, and listen to the arguments of learned counsel.

But I would suggest it is very much our prerogative — the prerogative of the Parliament of Canada, the executive branch, but the Senate — to do its job in passing laws that are for the governance, for the inclusion and for the fairness of enabling the court itself.

So again, it is a very interesting scenario that the court is looking inward in determining its own eligibility. We are going back literally to the time of Confederation when we're examining this bill. And it is quite remarkable that it has taken this long. It is the advent of the Federal Court that has more or less created this scenario in which we find ourselves.

But I will not prejudge what the judges will say. I will suggest that the fact that we have taken these two tracks should be seen as a reflection of the seriousness that we place on our position, which is that Quebec should be given equal opportunity to have its representatives serve on the high court.

Senator Frum: Thanks for that thoughtful answer.

Senator Plett: Thank you, chair, and thank you, minister.

Again, I'm not a legal mind, and so I have a couple of very practical questions, just to help me understand this. If proposed section 6 were to be interpreted the way the challengers are interpreting it, tell me: Would that not then mean that an individual with 10 years' experience at the bar would better qualify for the Supreme Court appointment than somebody with 10 years' experience at the bar and then 10 years' experience at the Federal Court?

Mr. MacKay: Well, what we have in the current scenario is somebody who has both; they have experience as a judge, albeit not a judge from the superior court in the Province of Quebec, but they have, in fact, 20 years as a member of the Quebec bar and 20 years having served at both the Federal Court and Court of Appeal.

So it is even more demonstrable of the talent and the considerable weight that was placed upon this committee who deemed him eligible. So I for one think his qualifications are beyond reproach.

It is because of this anomaly that he, upon joining the Federal Court, was no longer an advocate, and because the Federal Court is not a superior court, by definition of the act, he falls in this very narrow space of no man's land, I guess. And we're simply saying that by clarifying the words of having served 10 years, at any time, he's eligible by virtue of that criterion.

I am still very much of the belief that the Federal Court is on par when it comes to the inclusion of the experience that a judge would have. Arguably, there are judges who might be at the Federal Court who would never have any occasion to deal with civil law. Because of the composition of that Federal Court, those who assign the cases will inevitably look at individuals like Mr. Justice Nadon and assign them to cases that would involve the interpretation of civil law. Their experience is analogous to if he had continued to serve in a Quebec superior court.

I may be going further afield, but my short answer is that certainly the criteria of one or the other or both, and reading the two sections together, in our view, meets that criteria.

Senator Plett: Let me then just ask this: If Justice Nadon had never become a judge and had been practicing at the bar these 20 years in Quebec, he would have been eligible to have been appointed at that time.

Mr. MacKay: Absolutely.

Senator Plett: And now because he left and went and sat as a judge, he is now, according to the critics, not eligible.

Mr. MacKay: Correct. That is their position, yes.

Senator Plett: Why would the legislators want to specifically — and I know this may be opinion — but why would legislators in Quebec specifically want to narrow the scope through which Quebec candidates would be appointed?

Mr. MacKay: I honestly cannot answer that question. I find it strange that the Attorney General, the Government of Quebec, would deem provisions and interpretation of the act in narrow scope to exclude Quebecers, to be, quite frankly, counterintuitive to what advocates from Quebec would seek to obtain for their citizens, for their jurists, for their bar.

I don't understand why they would take that position, other than to pick a fight with Ottawa, I guess. But that again is a political view.

Senator Plett: Thank you.

The Chair: Our final questioner, Senator Batters.

Senator Batters: Minister, thank you for coming today. Earlier, you spoke about the FPT meeting, the Federal- Provincial-Territorial Ministers of Justice meeting that was recently held, and from my experience, being the Saskatchewan justice minister's chief of staff for almost five years, typically those meetings would be probably at least a full day of meetings with yourself involved with the provincial and territorial ministers, and sometimes even a day and a half, plus typically some private dinners with just the ministers.

Was that the case at this most recent one?

Mr. MacKay: That's correct, senator. In fact, it was two days. We were accompanied by the Ministers of Public Safety as well from all provinces and territories.

Senator Batters: So in that entire time, the Quebec justice minister didn't raise this matter with you?

Mr. MacKay: At no time was this issue raised or presented as a problem.

Senator Batters: Thank you.

Senator Rivest: Why don't you ask the question of the minister of Quebec?

Mr. MacKay: I don't typically kick hornets' nests.

Senator Batters: Could you explain in more detail why the Federal Courts Act requires a minimum number of judges on the Federal Court and the Federal Court of Appeal who have been members of the Quebec bar?

Mr. MacKay: I'm sorry. Could you repeat the last part?

Senator Batters: I'm sorry. The Federal Courts Act requires a minimum number of judges from the Federal Court and the Federal Court of Appeal who have been members of the Quebec bar. Could you just explain to us in a little more detail about that?

Mr. MacKay: That is correct. While the numbers differ from the Supreme Court composition, because the Federal Court is, of course, larger, one can presume it is for the exact same reason, to have representation specific to the Province of Quebec on the Federal Court and Federal Court of Appeal.

So there are positions that are reserved specifically for Quebecers on that Federal Court, as is the case with three of the nine on our Supreme Court of Canada coming from Quebec.

I raise that issue because, again, I wanted to emphasize that the Federal Court has this same pan-Canadian inclusive criteria and mandate, frankly.

So it is quite out of step with this compatibility of courts and requirements and pan-Canadian approach to suggest that because a person had pursued the route of appointment through the Federal Court, this would somehow deem them ineligible at the Supreme Court level, because they do serve the entire country, including Quebec and including the practice of civil jurisprudence.

Senator Batters: Thank you, minister.

The Chair: Thank you, minister. We appreciate you giving us even more than the allotted time to respond to senators' questions.

Mr. Shanks, the minister kept you out of the hot seat, but we very much appreciate you being here as well.

We're going in camera to deal with this. Can I have a motion to move in camera? Moved by Senator Baker. All in agreement?

Hon. Senators: Agreed.

(The committee continued in camera.)