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Speech in Senate Chamber: Supreme Court of Canada—Inquiry—Debate Adjourned

Supreme Court of Canada Inquiry—Debate Adjourned

Hon. Anne C. Cools rose pursuant to notice of June 3, 2014:

That she will call the attention of the Senate to:

(a) the constitutional code and practices called judicial independence, the legal and political concepts, enshrined in our constitution, most particularly in the British North America Act 1867 sections 96-101, which prescribe the constitutional position of the superior court judges of Canada, and the duty of our houses of parliament to protect them, and to superintend judicial independence, and, justice itself, and;

(b) to the unsettling public circumstances in which the vice regal of Her Majesty, who is also the distinguished Supreme Court of Canada's Chief Justice, the Right Honourable Beverley McLachlin, P.C., was placed, consequent to unfair and unjustified insinuations by some in the Prime Minister's Office, which insinuations distorted the Chief Judge's proper actions in a telephone communication with the well- respected Attorney General Peter Mackay, which communication was about her proper and dutiful purpose of compliance with the law on the selection and eligibility of the three judges from Quebec, pursuant to the Supreme Court of Canada Act section 6, and;

(c) to the clearly drafted section 6 of the Supreme Court Act which dictates that,

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,


(d) to the undesirable insinuations and distortions, which had the consequence of exposing Madame Chief Justice to potentially ugly controversy and turmoil, which potential compelled the Court, in the person of its Executive Legal Officer, Mr. Owen Rees, to issue a statement to clarify the facts and the propriety of the Chief Justice's most dutiful actions, which statement was well received by the public, and;

(e) to Madame Justice McLachlin's diligence in her dutiful endeavours as Chief Justice, and the well- established principle that all judicial officers and lawyers have a duty, if having the knowledge, to take action to prevent breaches of the law and legal wrongs and sins.

She said: Honourable senators, I rise to speak to my inquiry on the Right Honourable Beverley McLachlin, P.C., Chief Justice of the Supreme Court of Canada, and this court's proper response to some improper acts. In May, there were copious media reports that some in the Prime Minister's office had insinuated that Chief Justice McLachlin had improperly sought a meeting with the Prime Minister about Federal Court Justice Marc Nadon, wrongly appointed as one of Quebec's three judges to the Supreme Court, her court.

These insinuations were attended by such clamour that they jolted the public sensibilities. This compelled the court on May 1 to issue a short and welcome statement to clarify the facts. I shall read Executive Legal Officer Owen Rees' statement about the Chief Justice's proper actions:


In response to recent media reports, the Office of the Chief Justice of Canada, the Right Honourable Beverley McLachlin, P.C., is releasing the following statement.

At no time was there any communication between Chief Justice McLachlin and the government regarding any case before the courts. The facts are as follows:

On April 22, 2013, as a courtesy, the Chief Justice met with the Prime Minister to give him Justice Fish's retirement letter. As is customary, they briefly discussed the needs of the Supreme Court of Canada.

On July 29, 2013, as part of the usual process, the Chief Justice met with the parliamentary committee regarding the appointment of Justice Fish's successor. She provided the committee with her views on the needs of the Supreme Court.

On July 31, 2013, the Chief Justice's office called the Minister of Justice's office and the Prime Minister's Chief of Staff, Mr. Novak, to flag a potential issue regarding the eligibility of a judge of the Federal Court to fill a Quebec seat on the Supreme Court. Later that day, the Chief Justice spoke with the Minister of Justice, Mr. MacKay, to flag the potential issue. The Chief Justice's office also made preliminary inquiries to set up a call or meeting with the Prime Minister, but ultimately the Chief Justice decided not to pursue a call or meeting.

The Chief Justice had no other contact with the government on this issue.

The Chief Justice provided the following statement: "Given the potential impact on the court, I wished to ensure that the government was aware of the eligibility issue. At no time did I express any opinion as to the merits of the eligibility issue. It is customary for Chief Justices to be consulted during the appointment process, and there is nothing inappropriate in raising a potential issue affecting a future appointment."

For further information contact:

Owen M. Rees

Executive Legal Officer

Phone: (613) 996-9296

Honourable senators, third in precedence, the Chief Justice is well respected as judge, vice regal and Deputy Governor General. By the 1947 Governor General's Letters Patent, our Sovereign King George VI decreed that she is Our Administrator, who, in the Governor General's incapacity or absence from Canada, is Her Majesty`s representative. Clause VIII states:

And We do hereby declare Our pleasure to be that, in the event of the death, incapacity, removal, or absence of Our Governor General out of Canada, all and every the powers and authorities herein granted to him shall, until Our further pleasure is signified therein, be vested in Our Chief Justice . . . or, in the case of the death, incapacity, removal or absence out of Canada of Our Chief Justice, then in the Senior Judge . . . of the Supreme Court of Canada . . . such Chief Justice or Senior Judge . . . while the said powers and authorities are vested in him, to be known as Our Administrator . . . .

Our Administrator has full constitutional powers to dismiss prime ministers and governments; likewise, in the provinces, the chief judges act in the stead of their lieutenants general.

Honourable senators, offence to a Chief Justice offends the administration of justice and the Queen, the supreme magistrate and the fount of justice, mercy and honour. The Commander-in- Chief of the Canadian Forces, she is head of government, head of state and head of Parliament.

William Blackstone's Commentaries on the Laws of England, Book I at page 149, states that the monarch and the houses of parliament:

. . . together form the great corporation or body politic of the kingdom, of which the king is said to be caput, principium, et finis.

The Queen is the head, the beginning, and the end. Our Constitution Act, 1867, Part III, Executive Power, section 9, states:

The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.

Honourable senators, the Queen is the actuating power in our constitution. All law is by her consent. The notion that the Governor General is an automaton is a great mischief. In the Governor General's stead, the Chief Justice exercises the monarch's full and absolute powers.

The Senate, the upper and royal house of the Parliaments, has a duty in allegiance and judicial independence to uphold and protect the Chief Justice. Justice McLachlin acted properly in her duty to advise the Governor General and his ministers on legal questions on judicial appointments to her court. She has a duty and right to timely meetings with the ministry on the administration of justice and the court's needs. She has a sworn duty to advise the Prime Minister on the law selecting persons for Governor General's commissions to her court. Sometimes she can appoint them herself.

It is a principle of law that all judicial officers and lawyers, when informed, have a duty to prevent legal and judicial wrong. The Chief Justice was noble and calm facing unfair and unprecedented offence to hers and the court's integrity by some who acted poorly. Cordial relations in constitutional comity between Crown ministers, Attorneys General and the Chief Justice is the pillar of our social order. The Attorney General is the attornatus rex, the king's attorney, and the senior of the three law officers of the Crown.

Canada's first Attorney General, also first Prime Minister, Sir John A. Macdonald, drafted the 1868 Department of Justice Act. This act united, in one single person, the two offices of Attorney General and Minister of Justice. Its section 2.(2) read:

The Minister is ex officio Her Majesty's Attorney General of Canada, who holds office during pleasure and has the management and direction of the Department.

I have great respect and esteem for our Justice Minister and Attorney General, Peter MacKay. Senators owe a duty in judicial independence to protect and uphold our judges and Chief Justice. The legal community has done so in public statements from the bar association's presidents, the law school deans and advocate societies.

Honourable senators, the law of judicial independence and judges, liberty's cornerstone, did not apply in early Canada when judges served in politics, in legislatures and executive councils. The Reformers fought hard for responsible government with judicial independence. With Lord Durham's support, it made great progress.

Top of mind at the 1864 Quebec Conference, the Federating Fathers agreed on it and on the need for a court of general appeal and other courts, which are now the Supreme Court and the Federal Court. The Quebec Conference adopted 72 resolutions, of which Attorney General West John A. Macdonald drafted most. Amended and perfected, these became the British North America Act, 1867.

Joseph Pope recorded them in his 1895 book, Confederation: being a series of hitherto unpublished documents bearing on the British North America Act. Quebec Resolutions 31 to 37 and 29. (34) were the Fathers' judicial items. These became sections 96 to 101 of the B.N.A. Act, 1867, Part VII, headed "Judicature." These are the law on judicial independence. They replicate the political impulse of the 1689 and 1701 post civil war settlement statutes, which defined the relationship between king, parliament and the judges, the coordinate institutions of the Constitution.

In 1875, our new Parliament passed An Act to establish a Supreme Court and a Court of Exchequer, for the Dominion of Canada, pursuant to section 101, which said, in part:

The Parliament of Canada may . . . provide for . . . a General Court of Appeal for Canada, and for . . . additional Courts . . . .

Honourable senators, these "Judicature" sections were born in the federation agreement, the Quebec Resolutions. The Fathers were careful about Quebec's French civil law, French language and full partnership in the new Canada. For this, the Fathers shaped the administration of justice in their new constitution. They intended that the Dominion's section 101 courts would be superior courts, whose judges would be superior court judges and who, like section 96 superior court judges, would be appointed by the Governor General. They intended that the dominion courts' judges, like the continuing superior courts' judges, would be selected from the bars of the respective provinces. Very important.

Canada's B.N.A. Act, 1867 enacted that the federation agreement with Quebec's unique civil law, customs and French language would be embodied in the bench in the selection of its judges. Note their verb "select" in the act's section 98. Headed "Selection of Judges in Quebec," it says:

The Judges of the Courts of Quebec shall be selected from the Bar of that Province.

Colleagues, that was Quebec Resolution 35, which said:

The Judges of the Courts of Lower Canada shall be selected from the Bar of Lower Canada.

Likewise, section 97, headed "Selection of Judges in Ontario etc.," said, partly:

. . . the Judges of the Courts of those Provinces appointed by the Governor General shall be selected from the respective Bars of those Provinces.

There is a consistent theme of the selection of judges.

Honourable senators, the Fathers formed and shaped two distinct powers: The appointing power and the selecting power, if you read carefully you see these words develop and recur through the law and the system. Their plan was that the judges, in their physical bodies, their persons, and in their civil law caste of mind would personify the federation on the bench.

Colleagues, our Fathers achieved our federal union and its masterpiece statute, the British North America Act, at a time when a failed constitution, with its civil war carnage and American annexationist intent, were pressing at their door. This is the genius of the British North America Act and the men who made it. I would love to share more of this, theirs was the most fantastic piece of constitutional work we know.

Their constitution plan was that Quebec and its people, like my friend over there, Senator Nolin, its peoples, civil law and language would be entrenched forever in our federal institutions. They did the same for the senators.

Quebec Resolution 14 said:

The first selection of the Members of the Legislative Council shall be made . . . from the Legislative Councils of the various Provinces . . .

The word "select" is also found in the Constitution Act, 1982, section 42.(1)(b), that requires the general amending formula to alter:

(b) the powers of the Senate and the method of selecting Senators;

Honourable senators, Canada's constitution is a single cohesive conceptual framework from 1759 to now. This is seen in the unity of its sections that select persons for life tenure appointment, mostly judges and senators, who serve during good behaviour, and during life.

Quebec Resolution 11 said:

The Members of the Legislative Council shall be appointed . . . and shall hold Office during Life;

Colleagues, the federating Fathers were selective about selecting persons who hold life estate in office, that unique constitutional independence granted by the Queen`s ancient letters patent, now to age 75. This appointment form was reserved for those in the administration of justice, whose distinct feature is that they cannot delegate their work.

No judge may delegate giving judgment, no senator can delegate voting. Life estate in office, or life tenure, treats the office as a parcel of land in freehold. Its origin is the feudal common law of property, tenure and tenancy in land and in offices held for a time, like land, but are not the land.

The 1573 judgment in the King's Bench Division, in Walsingham's case, is clear, at page 9:

the land itself is one thing, and the estate in the land is another thing, for an estate in the land is a time in the land, or land for a time, and there are diversities of estates, which are no more than diversities of time . . .

That was a most brilliant statement, hundreds of years old.

Honourable senators, Sir William Blackstone records these tenures in his Commentaries on the Laws of England in Four Books. In his 1766 Book II at page 20, he treats of tenancy in property and offices, and life estate in office. He wrote of hereditaments, from the Latin hereditas for inheritance, meaning types of property that could be inherited.

There are two kinds of hereditaments: Corporeal and incorporeal. Corporeal is the tangible land itself. The incorporeal are those intangible rights issuing from the land, and annexed to, but are not the land. They include offices and dignities.

Blackstone said at page 21:

Incorporeal hereditaments are . . . of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.

Honourable senators, holding office is the fifth sort of incorporeal hereditament and dignities the sixth.

Blackstone wrote at page 36:

V. Offices, which are a right to exercise a public or private employment . . . are also incorporeal hereditaments: whether public, as those of magistrates; or private, as of bailiffs, receivers, and the like. For a man may have an estate in them, either to him and his heirs, or for life, or for a term of years, or during pleasure only: save only that offices of public trust cannot be granted for a term of years, especially if they concern the administration of justice.

I would love a few more minutes.

Hon. Senators: Agreed.

Senator Cools: Thank you, honourable senators. I will continue:

Especially if they concern the administration of justice, for then they might perhaps vest in executors or administrators. . . . but ministerial offices may be so granted; for those may be executed by deputy.

The terms "hold office" and "officeholder" reveal their ancient property roots. On judges' life tenure, the B.N.A. Act, section 99. (1), headed "Tenure of Office" states:

. . . the Judges of the Superior Courts shall hold office during good behaviour . . .

Similarly, section 29, headed "Tenure of Place in Senate" states:

. . . A Senator shall . . . hold his place in the Senate for life.

Honourable senators, "during good behaviour" means life tenure, now 75 years, for mental health reasons. This phrase is from the 1701 Act of Settlement, which, with the 1689 Bill of Rights, found the modern British constitution. It is important to understand that the phrase "during good behaviour" relies on the 1692 U.K. Court of Kings Bench judgment in Harcourt v Fox. This ruled that during good behaviour is "absolutely an estate for life in his office," subject to forfeiture for misbehaviour.

Chief Justice Holt noted the great push for judicial independence, at page 734:

. . . I knew the temper and inclination of the Parliament, at the time when this Act was made; their design was, that men should have places not to hold precariously or determinable upon will and pleasure, but have a certain durable estate, that they might act in them without fear of losing them; we all know it, and our places as Judges are so settled, only determinable upon misbehaviour. . . .

Honourable senators, my intention today was not to accuse or point fingers, but merely to record the duties that the houses of Parliament and this Senate owe to the judges, which I shall continue in my next speech.

Our Constitution prescribes that we must pursue to destruction corrupt judges who should meet their just desserts in our High Court of Parliament, but our first duty is to protect judges from executive displeasure or abuse. The distinguished Chief Justice McLachlin has acted well, and consistent with her office. This is clear to the legal practitioners, legal scholars, journalists, to us senators and the public. We must uphold her and her offices as Chief Justice and vice regal of the Queen. The Senate's watchful eye must be vigilant about justice and injustice in our land. The problem is that too many no longer know of the duties they hold in respect of the judges and the treatment of the judges. This is the pillar and the cornerstone of our system of governance in the name of the public good and peace, order and good government.

I thank you so much.

(On motion of Senator Cools, for Senator McCoy, debate adjourned.)

The remainder of this day's Senate Debates are available here.