:
Yes. Thank you very much, colleagues, and Mr. Chair.
I'm pleased to be here with Laurie Wright to speak to you about the declaratory provisions to the Supreme Court Act proposed in division 19, part 3 of Bill C-4, and the Economic Action Plan 2013, No. 2.
Colleagues, these declaratory provisions have been introduced to clarify the most basic criteria for appointment to the Supreme Court and are the same regardless of the appointee's province or region, and to ensure that any future government can continue to draw from the ranks of the most talented and experienced jurists who currently sit on Canada's federal courts in filling vacancies on the highest court in the land, the Supreme Court of Canada.
[Translation]
Mr. Chair, esteemed colleagues, I am hopeful that public consideration of these provisions in Parliament will also help 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 of Canada, including as members of the court for Quebec.
[English]
Colleagues, in the government's view, the eligibility of the federal court judges to fill any vacancy on the Supreme Court should not be in doubt. It is solidly supported by legal opinion prepared by respected former Supreme Court Justice Ian Binnie, which itself was supported by his former colleague, the Honourable Louise Charron, as well as by noted constitutional expert, Professor Peter Hogg.
However, as you are no doubt aware, Mr. Chair, colleagues, despite the weight of legal expert opinion, some have continued to question the eligibility of federal court judges for appointment to the Supreme Court, particularly as members of the Court for Quebec. In order to resolve this critical matter as soon as possible, the government is proceeding on two fronts.
As you know, the matter is referred to the Supreme Court of Canada to confirm, first, the meaning of the statute, and second, Parliament's authority to 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 to enact the declaratory provisions under consideration here today before you.
On the other front, the Economic Action Plan 2013, No. 2 was determined to be the most expeditious and most 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 arises next April.
These declaratory provisions clarify—without making substantive changes to the existing law—that individuals with at least 10 years at any bar in Canada, including the Quebec bar, at any time during their career, are eligible to sit on the Supreme Court of Canada.
It's very straightforward language.
Mr. Chair, I would like to stop here for a moment and make the point that it may appear a bit technical, but it is of central importance to this committee's consideration of clauses 471 and 472 of Bill . The provisions that these clauses introduce differ in quality and, consequently, in effect from the types of statutory amendments generally considered and debated by Parliament or by a committee such as this. These provisions are declaratory in nature and, as such, they do not amend the Supreme Court Act in the way that a standard statutory amendment would.
Typically, statutory amendments enact new provisions or change existing provisions in a way that makes the result different in substance from the provisions they would replace, modify, or amend. The nature of the proposed declaratory provisions is to explain the proper interpretation of the law from the time it came into force and effect.
Essentially, it is language that adds to the meaning in a way that will bring about greater understanding.
[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 Ltd. The court stated in that case:
The interpretation imposed by a declaratory provision stretches back in time to the date when the legislation it purports to interpret first came into force, with the effect that the legislation in question is deemed to have always included this provision.
[English]
In keeping with the purpose of a declaratory provision, clauses 471 and 472 confirm the basic requirement that judges must meet to be appointed to the Supreme Court of Canada. These provisions will make it clear that the current wording of these sections does, in fact, allow for judges of the Federal Court to fill Quebec vacancies on the Supreme Court of Canada, as long as at some point in their legal career they had 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 in the same way as current and former members of any other province. So it is to keep consistency and parity with all provincial bar associations.
I should explain, Mr. Chair, that the wording of these provisions has changed very slightly over the course of the past century as a function of legislative revision and consolidated exercises performed for all federal statues. However, there have been no substantive changes. We're talking about changes here after a considerable period of time for the purposes of clarification.
Successive pieces of legislation empowering Parliament have established that any changes that occur during these revision exercises are not intended to be substantive. The rule reflects an important principle. Given Parliament's role in enacting the laws of Canada, it should be inappropriate for mere housekeeping matters to change the law.
This principle is reflected as well in long-established rules of statutory interpretation that routine statutory revision and consolidation do not result in substantive legislative amendments.
That's what we're talking about here today. It is not a substantive change but a declaratory statement to clarify existing law.
[Translation]
Mr. Chair, 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. Mr. Justice Marshall Rothstein, a current and 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. Before him, Justices Frank Iacobucci and Gerald Le Dain, both members of the Ontario Bar, followed the same route to the Supreme Court.
[English]
It should be neither surprising nor unexpected that Supreme Court vacancies have in the past been filled from the ranks of Federal Court judges. This is not without precedent.
Experience in the Federal Court enhances rather than negates a long-time advocate's qualification to serve on the Supreme Court of Canada. I say that because the Supreme Court regularly hears appeals from decisions of the federal courts. In 2012 alone, the Supreme Court heard 10 appeals from decisions of the Federal Court of Appeal, as compared to 15 from the much larger Court of Appeal of Québec.
As I mentioned at the outset, Mr. Chair, it has been suggested in particular that judges of the Federal Court ought not to be appointed given the requirement under section 6 of the Supreme Court Act that three of the nine judges of the Supreme Court be appointed from Quebec.
The argument is that since Quebec is a civil law jurisdiction where the Quebec civil code applies, only those who practise law in Quebec at the time the appointment must be filled or who sit on a Quebec superior court are qualified. However, Mr. Chair, this argument is demonstrably without merit, not least because it reflects a fundamental misunderstanding of the nature of the work of the federal courts.
Let me explain. Judges of the Federal Court have jurisdiction over a wide and diverse area of law, and the principle of bijuralism means that they must regularly apply federal law in accordance with legal rules and principles in force in the province from which it arises.
For matters arising from Quebec this means that judges of courts, like the Federal Court of Appeal, must routinely interpret Quebec's civil code in deciding matters arising in complex and diverse areas such as tax law, copyright, and bankruptcy. 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 the Federal Court of Appeal who have also been members of the bar from Quebec at any time. There are ten on the Federal Court and five on the Federal Court of Appeal. In essence, it's the same type of composition. There is mandatory membership on the Federal Court and the Federal Court of Appeal from Quebec.
The object of this statutory requirement is precisely the same as that of section 6 of the Supreme Court Act. It is to ensure that those courts have the requisite bijural capacity to deal with matters that arise from both civilian and the common law systems that define our system of administration of justice. To exclude the eminent Quebec jurists appointed to the Federal Court in satisfaction of such a requirement for consideration for appointment to the Supreme Court of Canada, and satisfaction of an essentially similar requirement, evidently makes no sense. Indeed, it could only serve, in my estimation, to weaken the guarantee provided by section 6 of the Supreme Court Act.
[Translation]
Moreover, as the Hon. Robert Décary, former justice of the Federal Court of Appeal, has recently and eloquently observed (in La Presse on October 25, 2013), to suggest that a judge of the federal courts 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. In his words, Quebec's civil law:
…has made its mark in the world. It borrows from common law and it lends to common law.
Which lawyer or judge in Quebec can claim today to live exclusively in the world of classic civil law? Divorce law is federal. Our administrative, criminal and penal law is Anglo-Saxon in inspiration. Commercial law is increasingly international. Human rights are global rights.
[English]
In addition, Mr. Chair, and to conclude, 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 from appointment to the Supreme Court of Canada. For example, judges of La Cour du Québec would be excluded as they are neither judges of the Superior Court or the Court of Appeal, nor are they currently advocates. This restrictive interpretation would lead to an absurd result that has been noted by other constitutional experts. Later this morning, I understand, you'll hear from Professor Benoît Pelletier. In an interview on Radio-Canada on October 23, he stated:
[Translation]
The interpretation that prevails, I believe, or should prevail, when one looks at the spirit of the provision is that you just need to have been a member of the bar for 10 years, but you do not have to still be one today.
[English]
Mr. Chair, by taking this legislative step and also by referring this question to the Supreme Court of Canada, our government is defending the eligibility of members of the bar in all provinces and territories to sit on the highest court of the land. Members of the Quebec bar should be, and are under law, treated the same as lawyers in other provinces and territories in Canada.
Our government looks forward to a prompt, conclusive resolution of these questions ensuring the continued eligibility for appointment to the Supreme Court of eminent jurists of Canada's federal courts. This could only help ensure that the Supreme Court will maintain the long tradition of independence and excellence that has made it the envy of both the developed and developing democracies.
Mr. Chair, I thank you for your indulgence.
I'd be pleased, of course, to answer your questions.
:
Thank you for the question, Mr. Goguen. You are right: Justice Décary's decisions are clear. He said that the civil code is part of the legal system in Quebec.
[English]
He's very definitive in that particular decision. Our government recognizes that there is a crucial role of the civil law at every level of the court system, particularly at the Supreme Court itself, so these interpretative amendments that we're presenting are intended, as I've stated a few times, to clarify the existing law. They will ensure, in my view, the right of Quebec judges at the Federal Court level to sit on the Supreme Court and bring their expansive experience, which also involves dealing with the civil law, and which also involves, of course, being inclusive of the province of Quebec.
It's necessary, in my view, that we ensure there is a positive evolution and influence of bijuridisme at every court level. In fact, Mr. Justice Décary illustrates this: that growing the place of bijuridisme is already happening in our courts.
He affirms that. He wrote a letter, as you're probably aware and as you've alluded to, in La Presse, about these two declaratory provisions. He wrote, “I was a civil law practitioner when I was appointed and I have continued to be one.” So whether you're appointed to the Supreme Court of Canada or whether you're a federal jurist or an appeal court jurist, it doesn't somehow cease your attachment to the civil law, because the civil law is still under contemplation by both of those courts.
That principle that Justice Décary established in this case of
[Translation]
St-Hilaire v. Canada (Attorney General)
[English]
was very much recognized by Parliament in the , so I would suggest to you that your assertion is correct.
Thank you for having me here today, hon. members.
I would first like to say that, from a legal and constitutional perspective, I am convinced that sections 5 and 6 of the Supreme Court Act must be read together, meaning that they must be read in connection to each other. Furthermore, I am convinced that we must look at both the English and the French versions of section 5 and section 6. Clearly, I am talking about the sections of the Supreme Court Act.
Grammatically, I note that section 5 talks about judges that must be appointed “parmi les avocats inscrits pendant au moins dix ans au barreau d'une province”. The word “inscrits” can be interpreted in two ways: either as referring to the lawyers currently standing at the bar of a province or referring to lawyers who have already stood at the bar of a province. In itself, the word “inscrits” as written can take on either of the two meanings. It can either refer to the current situation or the current form, or to the previous form or a past situation.
Furthermore, the French version of section 5 uses the word “pendant”. It says that judges must be appointed “parmi les avocats inscrits pendant au moins dix ans au barreau d'une province”. It does not say “depuis au moins dix ans”. If it had said “depuis au moins dix ans”, that would have meant that the judges are to be appointed from among the current members of the Quebec Bar.
Since the word used is “inscrits”, which, as I just said, can have two meanings, either a meaning in the present or one in the past, and since the word “pendant” is used, I feel that the legislator wanted to have, among the appointed judges, some who have previously been members of the bar of a province for 10 years, even though they are no longer members when appointed, and some who are still members of the bar of a province when they are appointed.
When we read sections 5 and 6 together, we get the following result in French. Three judges must be appointed from among the current or former judges of the Superior Court of Quebec or the Court of Appeal of Quebec or from among “les avocats inscrits pendant au moins dix ans au Barreau du Québec”. That takes into account the potential double meaning of the word “inscrits” and the potential meaning of the word “pendant” in our grammatical context.
In English, reading the sections 5 and 6 of the Supreme Court Act together gives the following result.
[English]
Three judges shall be appointed from among the people who are or have been a judge of the Superior Court of Quebec or of the Court of Appeal of Quebec and who are or have been advocates of at least ten years' standing in the Quebec bar.
[Translation]
So when we combine sections 5 and 6 and we try to bring the text together, that is what we get. That is what I just read. The English version is a lot more flexible. It suggests that someone who has previously been a member of the Quebec Bar for 10 years can be appointed to the Supreme Court, even though that person may no longer be a member of the bar at the time of the appointment.
The first part of my analysis was more literal or grammatical. In terms of the spirit of the provision, I think it is clear that the legislator never intended to deprive the Supreme Court of the talent, skills and knowledge of the judges from the Federal Court and the Federal Court of Appeal. Nor could the legislator have intended to deprive the Supreme Court of the knowledge, talent and skills of judges of the former Exchequer Court of Canada. Based on the spirit of the provision, I don’t think the legislator wanted to exclude the members from what used to be the Exchequer Court of Canada, which then became the Federal Court and the Federal Court of Appeal.
Furthermore, I will say that, based on the spirit of the provision, it is important that at least three judges on the Supreme Court of Canada be trained in civil law. That is the reason behind having judges who have sat on the Quebec Superior Court or the Quebec Court of Appeal or who are members of the Quebec Bar. The idea is to have at least three civil law judges on the Supreme Court, because civil law cases sometimes come before the court. Right now, five judges on the Supreme Court can make a decision, including three civil law members, who are a majority on the court bench.
The Supreme Court of Canada, described as a general court of appeal under section 101 of the Constitution Act, 1867, hears civil law cases. It was therefore a good idea to have at least three judges with solid enough civil law training to hear civil law cases from Quebec. As a result, the court could rule in those cases with five judges, instead of nine judges, thereby giving the majority to the three judges trained in civil law.
Mr. Chair, I know our time is limited. Furthermore, there will be an exchange with the members of the committee in a few moments. I will end by saying that we cannot interpret these provisions as a requirement to appoint to the Supreme Court only people who have practised civil law or who still practise it. The idea is to appoint people who have been trained in civil law. Also, if we were to appoint only people who have practised civil law on an ongoing basis, we would not be able to appoint criminal lawyers, trade law or maritime law experts, or even constitutional experts, which would be terrible.
We must look for this civil law training, this connection with Quebec for at least 10 years as members of the Quebec Bar or as judges on the Quebec Superior Court or the Quebec Court of Appeal. However, interpreting those provisions as excluding the appointment to the Supreme Court of judges from the Federal Court or the Federal Court of Appeal goes much too far, in my view.
As I just said, that means that the provisions can be interpreted by the Supreme Court of Canada based on the reference it receives, and I think the additions that the Government of Canada intends to make to the Supreme Court Act are not necessary.
I think the Supreme Court of Canada can interpret sections 5 and 6 both grammatically and teleologically as allowing the appointment of judges from the Federal Court or the Federal Court of Appeal to the Supreme Court of Canada. I think this can be done in line with the purpose and spirit of the provision. These declaratory provisions are therefore not necessary. Are they desirable as additional safeguards? That is something we could discuss in a few moments.
:
Mr. Chair, hon. members, thank you for inviting me to give testimony before you today on clauses 471 and 472 of Bill .
In order to stay on time, I will first look at the scope of the proposed amendments and then briefly talk about why sections 5 and 6 of the Supreme Court Act cannot be amended on a purely legislative basis.
Last October 22, the Minister of Justice of Canada introduced declaratory amendments to the Supreme Court Act. According to those amendments, a barrister or advocate with at least 10 years standing at a bar can be appointed to the Supreme Court of Canada. In terms of Quebec, barristers or advocates who have been members of the Barreau du Québec for more than 10 years can also be appointed to the Supreme Court. It should be noted that this is not a formal amendment to sections 5 and 6 of the Supreme Court Act, but rather a declaration by the Government of Canada and subsequently by the Parliament of Canada if Bill is passed. That is how those two sections will be interpreted.
As Professor Pierre-André Côté explains, the legislator sometimes passes declaratory legislation. This is what he says:
No formal constitutional provisions prevent the legislature from at times interpreting its own legislation, although this is in principle the responsibility of the courts. Interpretive or declaratory acts serve “...to remove doubts existing as to common law, or the meaning or effect of any statute”.
Furthermore, it is important to point out that a declaratory piece of legislation applies retroactively. In fact, the Supreme Court of Canada has recently ruled on the Régie des rentes du Québec v. Canada Bread Company Ltd. case. This was in 2013. Justice Wagner, who is from Quebec, wrote the following for the majority:
It is settled law in Canada that it is within the prerogative of the legislature to enter the domain of the courts and offer a binding interpretation of its own law by enacting declaratory legislation...
In enacting declaratory legislation, the legislature assumes the role of a court and dictates the interpretation of its own law...As a result, declaratory provisions operate less as legislation and more as jurisprudence. They are akin to binding precedents, such as the decision of a court...Such legislation may overrule a court decision in the same way that a decision of this Court would take precedence over a previous line of lower court judgments on a given question of law.
It is also settled law that declaratory provisions have an immediate effect on pending cases, and are therefore an exception to the general rule that legislation is prospective. The interpretation imposed by a declaratory provision stretches back in time to the date when the legislation it purports to interpret first came into force, with the effect that the legislation in question is deemed to have always included this provision. Thus, the interpretation so declared is taken to have always been the law...
Chief Justice McLachlin points out the impact of declaratory provisions. She agrees with Justice Fish on this point, although she disagreed with him in this decision. She says:
I agree with my colleague Wagner J. that the legislature has the power to enact declaratory provisions which have a retroactive effect, and that such provisions apply to all pending cases.
With respect to those who think differently, I feel that Parliament is fully entitled to pass declaratory provisions. In that regard, I think clauses 471 and 472 of Bill are perfectly valid.
The second issue I would like to address is the amendment to sections 5 and 6 of the Supreme Court Act, the amendment to section 6 in particular.
This section has been amended seven times since 1875, basically because of technicalities, with the exception of the 1949 amendment, which increased the number of judges from Quebec to three. In 1985, when the last amendment was made and when the legislation was revamped mostly with technical amendments, the words “Court of Appeal” replaced “Court of Queen's Bench”. Let me draw your attention to two unsuccessful attempts at making major amendments in 1987 and 1992.
With the advent of the Meech Lake accord in 1987, an amendment to the Constitution Act, 1867 was proposed to incorporate sections 5 and 6 of the Supreme Court Act by adding something about the territories and federal courts. Subsection (1) of the new section 101B stated:
Any person may be appointed a judge of the Supreme Court of Canada who, after having been admitted to the bar of any province or territory, has, for a total of at least ten years, been a judge of any court in Canada or a member of the bar of any province or territory.
Subsection (2) stated:
At least three judges of the Supreme Court of Canada shall be appointed from among persons who, after having been admitted to the bar of Quebec, have, for a total of at least ten years, been judges of any court of Quebec or of any court established by the Parliament of Canada, or members of the bar of Quebec.
This constitutional amendment was supposed to clarify the situation of federal court judges. It also meant that the legislator or the constitutional constituent did not intend to exclude territory and federal court justices from being appointed to the Supreme Court. Unfortunately, this provision never came into force, because the Meech Lake accord was not duly ratified by the legislative assemblies of Newfoundland and Manitoba within the required timeframe.
The same provision was reconsidered in the Charlottetown accord, to no avail. This time it was because of the October 1992 referendum when Canadians and Quebeckers said no.
However, those attempts at amending the Constitution enable us to draw two conclusions about section 6 of the Supreme Court Act.
First, it is not unreasonable to think that this is a constitutional provision. However, we must point out that the doctrine is divided. Professors Peter Hogg and Benoît Pelletier, my colleague, feel that the composition of the Supreme Court of Canada can be amended through legislation by the Parliament of Canada, basically because the Supreme Court Act is not mentioned in the schedule referred to in section 52 of the Constitution Act, 1982.
In their work entitled Droit constitutionnel, professors Brun, Tremblay and Brouillet feel that the composition of the Supreme Court, including the civil law component, is protected under the Constitution. That is also the opinion of Professor Monahan and of Warren Newman, a Government of Canada lawyer who has expressed his personal view in a scholarly article published a few years ago. Mr. Newman's conclusion was that the civil law component of the Supreme Court is protected and that an amendment to section 6 of the Supreme Court Act would require the consent of the 10 provincial legislative assemblies and of the Government of Canada.
As a result, I feel it is accurate to conclude that federal court judges could be appointed to the Supreme Court of Canada. In our view, that is an accurate interpretation, whether teleologically speaking, as my colleague Benoît Pelletier pointed out, or broadly speaking, as a constitutional provision must be interpreted.
I would be happy to answer any questions you may have in the next few minutes.
Thank you.
:
Thank you, honourable members.
My presentation will basically cover two types of issues. First, I will look at the interpretive issues. I will look at the meaning of the act before the bill being discussed is passed, as well as the possible meaning of the act should the bill be passed. I will then look at the constitutional issues that may arise from this proposal. I will cover two aspects. The first one is the possibility that the bill discussed here is an amendment to what section 41 of the Constitution Act, 1982, calls the composition of the Supreme Court. The second is the possibility that proposing the amendment to the Supreme Court Act in a budget bill undermines the constitutional principle of a democratic parliamentary system recognized by the Supreme Court in the New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) case.
In case I run out of time, I will provide you with my three recommendations before I start my analysis.
Conditional to my second and third recommendations, my first recommendation is to be more explicit in this provision in order to state more clearly the declaratory nature of those provisions. The main reason for this recommendation is that a declaratory piece of legislation or provision is possible, but it is not assumed. Courts require declaratory provisions to be very clear in order to be able to use them. For instance, it should say “this is declaratory provision”, or use the past and present tenses to say something along the lines “this was and still is the case”.
My second recommendation is the following. Since it is possible that the amendments proposed are covered by section 41 of the Constitution Act, 1982, which means that the consent of the provinces may be required, it would be wiser to obtain the consent of the provinces before proceeding. If section 41 does not apply to the provision, there is no issue. However, if it does and it is found to be unconstitutional, it would be a major risk to appoint a judge to the Supreme Court using unconstitutional procedures, and it is not really clear what the next step would be. It would not be possible to dismiss a judge, because it wouldn’t be a question of misconduct.
Here is my third recommendation. Since the provisions are in the budget bill, there is a risk that the Supreme Court would have to look into the procedure used to adopt the declaratory provisions when it receives the reference of appointment for Justice Nadon. Since the Supreme Court might need to determine the constitutional validity of the procedure to include disparate provisions in the same act, and since the Supreme Court might find those provisions invalid, it would be wise to pass the provisions in question in a separate legislative instrument.
Let’s turn to the interpretive issues right away. I will not spend a lot of time on section 5. I share the interpretation of Justice Binnie, who was my mentor. I was also his clerk in 1999. As a result, I have a lot of respect for his opinion. Furthermore, my opinion on section 6 is different from his.
I would simply like to point out something about section 5 that has not been discussed. There is this presumption in law that the legislator does not speak for nothing. As members of Parliament, you fully understand the essence of this principle. However, when you read section 5, you might get the impression that, to be appointed, a person must have either been a judge on the Superior Court or on the Court of Appeal, or a member of the bar of a province for 10 years.
It would seem redundant to say that you need to have been a Superior Court or Court of Appeal judge, if being a member of the bar for 10 years is a necessary criterion for being a member of the Superior Court and Court of Appeal. But the requirement of being a member of the bar for 10 years to be appointed to the Superior Court and the Federal Court appeared only in 1912, 40 years after the Supreme Court Act was adopted. It originally set out a 10-year requirement. That requirement was entirely logical. At the time, when we adopted the predecessor to section 5, which required 10 years at the bar, you could be a Superior Court judge who did not have 10 years of experience at the bar. So it was not redundant.
The title of section 6 is another aspect that has often been overlooked. Section 6 is not aimed at the representation of civil law judges. The official title of the provision is “Représentation du Québec”. It is important to know that section 6 does not establish a maximum number of judges from Quebec. Instead, it qualifies section 5, meaning that to be qualified under section 6, titled “Représentation du Québec”, you must first be qualified under section 5. Therefore, the maximum number of civil law judges isn't three. Let's keep in mind that the Supreme Court had five judges in the 2000s that came from the civil law tradition. Justice Arbour and Justice Bastarache, both graduates in the same class from the Université de Montréal, had civil law training and were not from Quebec.
In fact, section 6 covers representation in Quebec. The legal criterion that judges should consider for the qualification involves reviewing particular skills. For example, the individual studied civil law, but is he or she familiar enough with civil law to qualify? It's a very difficult criterion to meet. We are arriving at clear, fixed and objective rules. The clear, fixed and objective rule that was adopted here is that you need to be a member of the Quebec Bar, a member of the Superior Court of the province or a member of the Quebec Court of Appeal.
This doesn't mean that a Federal Court of Appeal justice from Quebec, for example, could be appointed to the Supreme Court; it is just that he could not be considered a judge under section 6.
Basically, no matter how section 6 is interpreted, a risk remains. There is a dispute, as the minister mentioned. Therefore, adopting a declaratory provision could solve that problem. A declaratory provision is different from an interpretive provision. An interpretive provision is only predictive, while a declaratory provision is retroactive, where there is no presumption that a provision is declaratory. That is why I suggest you clarify the declaratory nature of the provision.
During the question period, I can come back to the issues involved in the possibility for Parliament to unilaterally amend the composition of the court in the Supreme Court Act. I would be pleased to go into more detail about the constitutional issues that were raised to a lesser degree by my colleague, Adam Dodek, during his remarks. I think he raised constitutional issues that are more serious than he let on in his presentation.
Thank you.