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QUESTION PERIOD - Justice - Prime Minister's Office - Chief Justice of the Supreme Court Appointments


Hon. Serge Joyal: Honourable senators, I have listened carefully to the Leader of the Government. He mentioned the opinions provided to the government by the Honourable Justice Binnie, the Honourable Justice Charron and Professor Peter Hogg.

The honourable senator was in this chamber when I spoke during the debate on clauses 370 and 371 of the budget implementation bill. I explained what I thought were the grounds for the unconstitutionality of appointing a Federal Court judge.

I relied on the 1982 constitutional debate to explain that a special status had been recognized for Quebec at the time. That was when the composition of the Supreme Court was enshrined in section 41 of the Constitution and other organic provisions for the Supreme Court were enshrined in section 42. I remember my explanation clearly. I think the Honourable Senator Nolin was here that day.

I pointed out that, as lawyers, if we want to maintain our licences to practice, as you yourselves know, we have to stay current in our knowledge of legislative provisions and participate in ongoing training. A candidate who is not a member of the bar and who cannot readily prove his knowledge of Quebec's civil law provisions as they exist today would not qualify, to my mind.

There was definitely a major debate in the legal community that prompted the government to do two things: first, it added two provisions to the budget bill to try to clarify the issue; and second, the government itself referred the matter to the Supreme Court of Canada. The court itself did not choose to study the matter.

When we look at the concerns and see where those concerns came from, I think it is clear that the government itself had concerns about the constitutionality of appointing a candidate from the Federal Court.

Dare I say that it might be a good idea as we debate this issue to review the sequence of events so that we can avoid further politicizing the debate and ensure that the Supreme Court, which is made up of the lawyers most qualified to sit on its benches, can continue to hear cases?

Senator Carignan: Senator, as I said earlier, when we found out about the possibility of a legal debate over whether Federal Court judges were eligible for Supreme Court appointments, the Prime Minister acted appropriately and asked the experts for their legal opinion. The possibility of a legal debate led directly to the request for an opinion.