The little taxpaying piano player in the Big judicial whorehouse!
Ever sometimes feel like a piano player in a cathouse? You kind of suspect what's going on behind those closed doors but your job is to keep playing, pay your taxes and not asking any embarrassing questions. As aficionados of the Douglas Inquiry can tell you there have already been multiple examples so far of how the process for federally appointed judges has failed miserably.
Why's that?
Are taxpayers so apathetic they're disinterested? Has the media failed to give adequate coverage to the judicial appointments process or perhaps the judiciary lacks sufficient transparency and citizen overview/ accountability?
So taxpayers, in the meantime while you're awaiting Mr Nadon's fate keep playing that piano with your head down and don't be looking under those black robes you see emerging from the back doors.
Sincerely,
Clare L. Pieuk
Postscript
See CyberSmokeBlog didn't use the "R-word" once.
Sean Fine - Justice Reporter
Tuesday, October 8, 2013
One day after being sworn in, Justice Marc Nadon has stepped aside temporarily from his duties at the Supreme Court of Canada in the face of an unprecedented legal challenge to his appointment from Toronto lawyer Rocco Galati. It is believed to be the first time a Supreme Court judge has stood down before, in effect, sitting down.
The move “throws the Supreme Court into disarray at the beginning of a very big term,” said Adam Dodek, a University of Ottawa law professor. Next month, the court is to hear a reference case on Senate reform that includes a question about the possible abolition of Parliament’s Upper House. If Justice Nadon is unavailable, the court would probably hear the case with seven members instead of the full nine.
By stepping aside, Justice Nadon deprives Prime Minister Stephen Harper of the bench he sought to create for this week, when a national-security case involving terrorism suspect Mohamed Harkat reaches the country’s most influential court. Justice Nadon, in a terrorism case involving Omar Khadr, was a passionate voice for the government’s position.
Mr. Galati contends that Justice Nadon was not eligible to take a vacant Quebec seat on the Supreme Court. Section 6 of the Supreme Court Act says a judge on the Quebec Court of Appeal or Superior Court, or from among that province’s lawyers, may sit in one of the court’s three chairs reserved for Quebec judges. It does not mention the Federal Court.
“The composition of all the courts should be in accordance with the statute and the Constitution,” Mr. Galati said in an interview, explaining why he filed a notice of application in Federal Court in an attempt to put the appointment on hold while he seeks a permanent order against it.
He has long been a thorn in the side of Federal Court judges – and Justice Nadon has spent the past 10 years on the Federal Court of Appeal.
Two years ago, Mr. Galati brought about an end to the Federal Court’s practice of using former superior-court judges older than 75, the mandatory retirement age, to hear cases at the request of the court’s chief justice. The Federal Court of Appeal upheld his challenge. (Justice Nadon was not involved in that case.)
Hugo Cyr, a law professor at the University of Quebec at Montreal, said the Harper government clearly anticipated the possibility of a challenge, as it showed by asking Ian Binnie, a retired Supreme Court judge from Ontario, to look into the legal questions surrounding an appointment from the Federal Court. Mr. Binnie reported that such an appointment is legal. It would not make practical sense, he said, to ask a judge from that bench to resign, then rejoin the Quebec bar for a day or two to qualify. Another retired Supreme Court judge, Louise Charron, and constitutional expert Peter Hogg, affirmed that opinion.
Citing those findings, Paloma Aguilar, press secretary to Justice Minister Peter MacKay, said the government will “defend the rights of Quebeckers who are appointed to the Federal Court to also sit on the highest court in Canada.”
Justice Nadon, 64, practised law for 20 years in Quebec and was a judge on the Federal Court’s two divisions for another 20.
Mr. Galati argues in his court filing that the government should have referred the issue to the Supreme Court for a ruling on the legality of the appointment.
Professor Cyr said the decision to step aside is “sad for Justice Nadon,” but wise because “no judge wants to have his legitimacy questioned when he hands in decisions.”
Then along came Justice RoadKill .....
Wonder how much RoadKill charged for this?
Suite 2600
Toronto, ON
Canada M5H 3P5
T 416-865-9500
F 416-865-9010
www.litigate.com
Hon. Ian Binnie, C.C., Q.C.
Direct line: 416-865-3737
Direct fax: 416-865-9010
Email: ibinnie@litigate.com
September 9, 2013
VIA EMAIL AND COURIER
RE: Eligibility of Federal Court Judges for Appointment to the Supreme Court of Canada
You have asked for my opinion on the following:
1. Is a sitting judge of the Federal Court qualified for appointment to the supreme Court as a Quebec member, pursuant to Supreme Court Act ss. 5 and 6, assuming that the judge had been a member of the Quebec Bar for ten years prior to appointment to the Federal Courts?
Answer: Yes
2.Based on the same explicit assumption as question one, if a Federal Court judge resigns and is forthwith readmitted to the Quebec Bar, would he or she be eligible for appointment ot the Supreme Court as a Quebec member, pursuant ot the Supreme Court Act ss. 5 and 6?
Answer: Yes
The questions have their origin in an alleged dissonance in the meaning of the French and English text of section 5 and 6 of the Supreme Court of Canada Act, RSC 1985 c. 5-26, which currently provide as follows:
5. Any poerson may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.
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6. At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province.
Clearly the Federal Court is not one of the Courts named in sections 5 and 6 and the issue therefore is whether it can be said that a Federal Court Judge who spent at least 10 years at the Quebec bar qualifies for appointment to the supreme Court as an advocate of at least ten years standing even though not a current member in good standing of the Quebec bar.
There does not appear to be any jurisprudence at any level of court addressing the precise quesitons you have posed, although Justices Gerald LeDain, Frank Iacobucci, and Marshall Rothstein were appointed directly to the Supreme Court form the Federal Court of Appeal without any s. 5 controversy.
In addition, Louise Arbour was appointed ot the Supreme Court of Canada directly from the post of Chief Prosecutor of the International Criminal Tribunal for Rwanda in Arusha and the International criminal tribunal for the former Yugoslavia in The Hague prior to which she had been a member of the Ontario Court of Appeal and prior to that a law professor. She was therefore neither a judge of a court specified in s. 5 nor a practicing member of a provincial bar at the time of her appointment.
Notwithstanding past practice it is necessary to approach the problem of statuatory interpretation from first principles.
Applicable Principles of Statutory Interpretation
The "golden rule" is that the text of particular sections is not to be read in isolation.
The Supreme Court of Canada has repeatedly endorced as correct the Driedger approach forumlated as follows:
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the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament (E. S. Driedger, Construction of Statutes (2nd ed. 1983), at p 87)
See, for example, Stubari Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536, at p. 578, per Estey J.; Quebec (Communaute urbaine) v. Corp. Notre-Dame de on-Secours, [1994] 3 S.C.R. at p. 17; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para 21; R. v. Gladue, [1999] 1 S.C.RT. 688, at para 25; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, at para 26; R. v. Sharpe, [2001] 1 S.C.R.45, 2001 SCC 2, at para. 33; and Bell ExpressVu Limited v. Rex [2002] 25 SCR 559 at para 29.
Any interpretation that leads to an absurd result is to be avoided.
When dealing with issues of bilingualism:
1. The English and French version of a statute are equally authentic and authoritative.
2. If the French and English texts are in apparent dissonance, the court searches for a "shared meaning."
3. If one version is ambiguous and the other clear, the clear version provides the shared meaning, and is to be adopted.
See Canadian Charter of Rights and Freedoms s. 18; The Official Languages Act, RSC R.S.C. 1985, c. 31; R. v. Mac, [2002] SCJ 26, [2002] 1 SCR 856 at para 5, 6; R. v. Daoust, [2004] S.C.J. No. 7, 2004 SCC 6 [2004] 1 S.C.R. 217 at para 27 to 29 (S.C.C.); Bastaradhe, Metallic, Morris, Essert The Law of Bilingual Interpretation (LexisNexis 2008) at pp 21, 24, 38, 47, 56, and 70.
Application of the Principles
The Driedger approach is often canvassed in terms of text and context of the statutory provisions under consideration and the "scheme and object" of the Act itself.
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(i) Text
Eligibility for appointment to the Supreme Court of Canada is governed, as stated, by sections 5 and 6 of the Supreme Court of Canada Act. Section 5 presently reads as follows (with emphasis added):
5. Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.
The argument against appointments from the Federal Court is that s. 5 requires a potential nominee to the Supreme Court to be either a judge of one of the named courts, or an advocate currently practicing at the bar, and that a Federal Court Judge meets neither criterion.
In the English version the words "is or has been" refer grammatically to both judges and advocates. If an individual has "at least ten years standing at the bar of a province" he or she "is or has been" such a member, and despite a lapse of time while serving on the Federal Court, the s.5 requirement is met.
In the French text, an advocate who was "inscrits pendant au moins dix ans" does not lose that experience or status or qualification when appointed to the Federal Court. The word "inscrits" does not point unequivocally to past or present membership. Grammatically the text embraces both possibilities.
The rationale for excluding Federal Court judges therefore has to be that use of the words "barrister or advocate" (ou "avocat") itself connotes current membership in good standing in a provincial law society at the time of appointment.
While it is true that the French text taken in isolation, could be interpreted to mean current membership, any ambiguity in the French text is to be resolved by seeking a "shared meaning" with the English text. The english text, in my opinion, is clear and
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unambiguous. The shared meaning, according to the rules governing bilingual statutory interpretation, is satisfied by an individual "who is or has been... a barrister or advocate of at least ten years standing at the bar of a province."
If Parliament had intended to specify current membership in the bar it could easily have said so in both official languages.
Accordingly, in my view the text of s. 5 does not require current bar membership.
(ii) Context
The danger of reading sections in isolation is illustrated by reference to s. 6 of the Supreme Court of Canada Act, which, as stated earlier, provides
6. At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.
Read in isolation, a Quebec advocate of zero years standing would be eligible to be appointed to the Supreme Court of Canada the day after his or her call to the bar. This would clearly be a nonsensical result. Sections 5 and 6 have to be read together.
An important contextual consideration is legislative history. Attached as Appendices hereto are the relevant legislative histories of sections 5 and 6. The historical evolution of the sections indicates, in my opinion, that Parliament's concern has never been with current membership but with a minimum length of experience at the bar.
The "inscrit" was introduced into s. 5 by the 1952 Consolidation of the Statutes of Canada. In the prior 1927 text neither the French or English versions of s.5 contemplated current membership. The 1927 versions of s. 5 read as follows:
5. Any person maybe appointed a judge who is or has been a judge of a superior court of any of the
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provinces of Canada, or a barrister or advocate of at least ten years' standing at the bar of any of the said provinces.
It cannot reasonably be contended that the formulation "a exerce" points unequivocally to current bar membership.
The 1952 Consolidation introduced into the French text the word "inscrit" which, together with the comma after the words "provinces du Canada," is said to give rise to the requirement of "current standing." However, if such a substantive change were intended a corresponding change would have been made in the English text, but there was no change at all in the 1952 English text.
1927 Text
5. Any person may be appointed a judge who is or has been a judge of a superior court of any of the provinces of Canada, or a barrister or advocate of at least ten years' standing at the bar of any of the said provinces.
1952 Text
Any person may be appointed a judge who is or has been a judge of a superior court of any of the provinces of Canada, or a barrister or advocate of at least ten years' standing at the bar of any of the said provinces.
This observation is not surprising. The argument against appointment of Federal Court judges places too much emphasis on "statutory consolidations" which generally deal with legislative housekeeping not changes in meaning. Section 4 of the Revised Statutes of Canada, 1985 Act so provides:
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 and portions of Acts repealed by section 3 and for which the Revised Statutes are substituted.
The Supreme Court of Canada has held that in cases where (as here) the revision only modifies one of the two linguistic versions of a provision of a statute, the presumption of continuity of meaning is even stronger:
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R. v. Popovic, [1976] 2 S.C.R. 308; see also Flota Cubana de Pesca (Cuban Fishing Fleet) v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 303 (C.A.) and Cote, Pierre Andre, The Interpretation of Legislation in Canada, 4th ed. (Toronto: Carswell, 2011) at 61.
At the time of the 1952 consolidation neither the Federal Court nor the Federal Court of Appeal existed. It is not surprising these courts were not referred to in the 1952 Consolidation. Membership in the predecessor court, the Exchequer Court of Canada was never considered a bar to appointment to the Supreme Court of Canada.
The "context" therefore reinforms the textual reading of ss. 5 and 6 that current membership of the Quebec bar is not a requirement of eligibility for appointment to the Supreme Court.
(iii) Scheme and Object of the Act
The Supreme Court of Canada Act established a final appellate body for Canada. Parliament's obvious concern in ss. 5 and 6 was to exclude from consideration men and women who lack the appropriate skills and experience. Exclusion from possible appointment of the talent pool of Federal Court judges conflicts with this purpose. Take for example a lawyer who practices for 15 years in Montreal from 1970 to 1985, then sits as a Judge of the Federal Court of Appeal from 1986 to 2000. Such an individual is clearly better qualified in 2000 after 14 years on the bench than he or she was in 1985 prior to the initial appointment. Yet the objection to the appointment of Federal Court judges attributes to Parliament the view that Federal Court experience is a detriment not an asset. Equally on the contrary view, an appointment to the International Court of Justice at the Hague would present an insurmountable barrier to appointment, despite decades of earlier practice at a provincial bar. Any interpretation of ss. 5 and 6 of the Supreme Court of Canada Act that leads to such an absurd result should be rejected.
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Question 2: Resignation, Rejoining the Bar, Making an Appointment
Clearly a judge of the Federal Court who resigned and rejoined the Quebec bar is eligible to be appointed subsequently to the Supreme Court. However, any hypothesis that requires of a person who starts the week as a Federal Court judge to rejoin the Quebec bar mid-week for a day or two in order to "qualify" for appointment to the Supreme Court by the end of the week, makes no practical sense. Parliament's manifest intent in the Supreme Court of Canada Act was to identify minimum qualifications for an important job. Accordingly, the answer to Question 2 is yes but with the caveat that such a two-step expedient is neither required nor compatible with the dignity of the office being filled, in my opinion.
Conclusion
In my view there is nothing in the Supreme Court of Canada Act that would prevent the direct appointment to the Supreme Court of Canada of a judge of the Federal Court of Canada or the Federal Court of Appeal.
I would be glad to discuss any aspect of this matter with you at your convenience.
Yours truly,
Hon. Ian Binnie, C.C., Q.C.
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posted by Clare L. Pieuk at 11:11 PM
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