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Speech in Senate Chamber: Judicial Appointment Process—Inquiry—Debate Adjourned

 

Judicial Appointment Process 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 disturbing media accounts respecting the failed appointment process to the Supreme Court of Canada of a Federal Court Judge, the Honourable Justice Marc Nadon, and;

(c) to the spoiled selection process that has so afflicted Justice Nadon, by which he had been selected for appointment to the Supreme Court, pursuant to the ancient section 6 of the Supreme Court of Canada Act, which section, jealously held by the people and province of Quebec, prescribes that the three Supreme Court judges appointed from Quebec must possess current mastery of the civil law, and be selected from among the current judges of Quebec's superior courts, or, from among the current members and practitioners of the Quebec bar, of which Justice Nadon is not, and;

(d) 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,

and;

(e) to the constitutional constancy of section 6 of the Supreme Court of Canada Act, which section has remained the same in text and substance as originally enacted in 1875 in section 4 of An Act to establish a Supreme Court, and a Court of Exchequer, for the Dominion of Canada, which prescribed the eligibility requirements for judicial appointment to the Supreme Court, being current membership of the Quebec bar, which is a law that was well known to many, resulting in unfair and tragic consequences to Justice Nadon, both professionally and personally

She said: Honourable senators, I just spoke about Chief Justice McLachlin. I speak now about the government's failed selection process in Federal Court Justice, the Honourable Marc Nadon's case. I speak to the mischief and excess, so hurtful to him, and so inconsistent with judicial independence, owed to him as a superior court judge, by the two houses of Parliament and the Supreme Court Act, section 6.

The Senate had a duty to protect him from this public ordeal of executive bungling. It is incredible that this act's well-known and restrictive section 6 could be so misunderstood and misused in the selection process that had him appointed and sworn in to the Supreme Court, as one of its three Quebec judges. It is incredible that some thought they could defeat section 6, which had been section 4 in the original 1875 act, An Act to establish a Supreme Court, and a Court of Exchequer, for the Dominion of Canada. Section 4 restated the 1864 Quebec Conference federating agreement, the 72 Quebec Resolutions, mainly those on the selection of judges from the provinces. The key word "selection" is distinct from "appointment." The Constitution Act, 1867, section 98, had been Quebec Resolution 35, that:

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

This notion was restated in the 1875 act creating the Supreme Court, and the Exchequer Court, now the Federal Court.

Honourable senators, currency in Quebec's French civil law, and currency in practice and membership of the Quebec bar, have been, for a long time, the quid pro quo for selecting persons for appointment, as Quebec's three judges pursuant to section 6, once section 4 of the 1875 act. Both had granted a proprietary interest to the lawyers, people and government of Quebec, in the selection of persons for appointment as their three judges on the Supreme Court, the appellate court to which Quebec civil law decisions would be appealed. These are just concerns. The 1875 Commons House debates reveal Quebec members' just concern about bijuralism, and the administration of justice by Quebec's own French civil law. Quebec concerns caused amendments to the 1875 act, expressly in section 4, that of the six judges:

. . . two of whom at least shall be taken from among the Judges of the Superior Court or Court of Queen's Bench or the Barristers or Advocates of the Province of Quebec.

There are now three of nine. Currency in the civil law is ever present. This same selection idea for Quebec is found in the current Tax Court of Canada Act and in the current Federal Courts Act, section 5.4. The Fathers of Confederation enshrined that Quebec's biculturalism, bilingualism and bijuralism would be embodied and personified in the selection of persons to serve as judges from Quebec. This was also true for the selection of senators.

Honourable senators, on December 12 last, to validate Justice Nadon's appointment, the Senate adopted a retrospective amendment to the Supreme Court Act, adding new eligibility sections 5.1 and 6.1. This too failed, raising more and new doubts. This change was the final clauses of the large and unrelated budget bill, Bill C-4, Economic Action Plan 2013 Act, No. 2. Many senators objected but, like Chief Justice McLachlin, were not heard. The government, doomed to failure, persisted in their goal to overcome section 6. They desired change in the Supreme Court's composition, but the Constitution Act, 1982, amending section 41(d) is clear. It states that unanimous provincial agreement is required to change matters in relation to:

(d) the composition of the Supreme Court of Canada.

Honourable senators, many government bills have been moved here to validate judicial appointments, but nothing as serious as this. Formerly inferior court judicial officers, such as provincial and family court judges, were ineligible for selection for both the Supreme Court and the Federal Courts.

On June 19, 1996, here, we adopted a government retrospective bill to correct disqualifying errors in two judges' appointments, both fine men. One had been a family court judge and the other a provincial court judge. This was Bill C-48, An Act to Amend the Federal Court Act, the Judges Act and the Tax Court of Canada Act. It amended the above named acts' eligibility sections to validate those judges retroactively, but they were not hurt as Justice Nadon was. Good government and governance dictate that changes to the law on selecting persons for bench appointment should proceed by open debate, not as afterthoughts.

Court composition and selection from the provinces is vital to our federal administration of justice. It would be far better if the government had simply accepted our Constitution. Their first duty is to uphold the Constitution and abide by the Supreme Court Act.

Honourable senators, I note Sean Fine's able Globe and Mail article last May 23 titled "The secret short list that provoked the rift between Chief Justice and PMO." This piece records the government's troubled selection process to place Justice Nadon in the vacant Quebec seat. I add — and this is important, colleagues — that the ad hoc committee of members of Parliament, before which Justice Nadon appeared last October 2, is a fiction. It is not a House of Commons committee. It is not a delegated authority from the House of Commons. It is not authorized by its privileges, immunities and powers of the house; it is an outlaw, or it is outside of the law. To question or examine a superior court judge in such circumstances is unfair and exposes him to grave dangers, absent the protection of privileges.

Honourable senators, our two houses were constituted by the BNA Act 1867, sections 17 and 18. Queen Victoria's May 22 proclamation of this act contained the first senators' names. Our houses' have constitutional duties in judicial independence to protect the judges from executive excess. They received the full powers of the lex et consuetudo parliamenti of Britain's ancient High Court of Parliament, with its full curial and judicial powers, to create courts and judgeships.

The Senate also received high powers in "the control of the public purse," limited only by the "financial initiatives of the crown" that appropriation and tax bills begin in the House of Commons. "Control of the public purse" commands that no judgeship may be created, nor judge appointed, without the houses' agreement, and also their agreement to pay their salaries. Alpheus Todd, in his 1889 book On Parliamentary Government in England, second edition, volume II, wrote, at page 856:

. . . the commissions of the judges shall remain in force, during their good behaviour, notwithstanding the demise of the crown: . . .

Honourable senators, you can see the Constitution developing over the years to protect the judges. Our Constitution commands that we fix and provide the judges salaries, create courts, create judges, and adjudicate all house actions to remove them from office for misbehaviour, named forfeiture. Judicial independence is enforced by the Senate and House of Commons judicial and curial powers. The judges have no means to protect themselves, save their contempt of court power. The Senate's curial powers are great, limited only to Britain's House of Commons.

The 1864 Quebec Resolutions had intended that the Senate limit would be the House of Lords' powers. This was changed in the 1866 London Conference to be clear that the House of Lords' Judicial Committee of the Privy Council, the appeal to the foot of the throne, was the final court of appeal for the dominions and colonies. They did not want any mistakes. Canada chose not to establish a permanent Senate appellate court, headed by our speaker in his judicial capacity, and created its own Supreme Court. Ever mindful not to wound or antagonize American sensibilities, Canada chose to forego the Senate privy council judicial committee in the same way that we chose the term "Dominion of Canada" over the term "Kingdom of Canada." These were all changed in London.

This government invoked our houses' judicial and curial powers to validate their flawed judicial appointment of Justice Nadon. The real problem before us is our Constitution's prohibition that Crown ministers express no public criticism or scorn towards our judges nor put judges into unwarranted public controversy or shame. Constitutional independence and comity apply to the relations between the monarch's Crown servants and ministers who govern, and her judges who administer justice in her mercy and who adjudicate the subject's causes in civil and criminal cases as against pacem domini regis, the peace of the lord King, now Lady Queen. Independence and comity order the exchanges between the ministers and the judges. To violate judicial independence is a sin that provokes irreparable constitutional crisis.

Honourable senators, judicial independence entered the British constitution in the 1701 Act of Settlement, being An Act for further Limitation of Crown, and better securing the Rights and Liberties of the Subject. This act established both security of tenure and security of judges' salaries, and it took effect in 1714. This era — one of the greatest, most important in human history and liberation — was bent on judicial independence. In the Quebec Resolutions, these notions are the BNA Act, Part VII, Judicature, sections 99 and 100. Section 100 states:

The Salaries, Allowances, Pensions of the Judges of the Superior . . . Courts . . . shall be fixed and provided by the Parliament of Canada.

Honourable senators, we fulfill this by our "control of the public purse" powers, by which we charge the judges salaries directly by bill to our consolidated revenue fund, which is what Senator Day was dealing with earlier. This single fund was Adam Smith's idea and was established in 1787 in Britain and later in Canada.

This direct charge to the consolidated revenue fund takes the payments for judges' salaries out of the annual supply process. Done as an integral part of responsible government, this avoided annual debate and votes on the judges' salaries during the annual supply process, with its large political problems. This was to avert ministerial defeats on confidence votes and the fall of governments on the fragile question of judge's salaries.

First achieved by individual judge's bills, after 1906 in Canada, it was by a single Judges Act with an enabling clause ordering the payment of judges' salaries. In his 1869 Parliamentary Government in England, Vol. II, Alpheus Todd wrote at page 726 that:

. . ., the judges' salaries are now made payable out of the Consolidated Fund, which removes them still more effectually from the uncertainty attendant upon an annual vote in Committee of Supply.

Honourable senators, I speak now to our houses' role in removing judges and the protection offered to judges. The British North America Act, 1867, section 99(1) states:

. . . the Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and the House of Commons.

This section enacts the Senate's duty to protect and secure the judges from executive displeasure and to superintend justice itself. This vests us with the profound duty to protect them from the mischiefs that arise if they engage the disfavour or favour of those with executive power, whose powers are large to remove them by the Governor General's royal writ to vacate their commission — the writ of scire facias.

Section 99 gives a curial power to the two houses in judicial mode to adjudicate charges against a judge, by a private member or a minister. Such charges must be proved in each house. Section 99 is an appeal to the houses for the afflicted judge as against the ministers or the Crown itself. It deters judges' removal by executive writ alone and puts such charges to the independent judgment of each house. Each house proceeds with its own separate judicial inquiry, with full opportunity for the affected judge to answer the charges and to make full defense with counsel, at the bar or in committee.

In his 1935 fourth edition of The Law and Custom of the Constitution, Volume II, Sir William Anson wrote on the removal of office-holders with life tenure. At page 234:

The Judges, . . ., hold office during good behaviour, 'but upon the address of both Houses of Parliament it may be lawful to remove them' . . . . if, in consequence of misbehaviour in respect of his office, or from any other cause, an officer of state holding on this tenure has forfeited the confidence of the two Houses, he may be removed, although the Crown would not otherwise have been disposed or entitled to remove him. Such officers hold, as regards the Crown, during good behaviour; as regards Parliament, also during good behaviour, though the two Houses may extend the term so as to cover any form of misconduct which would destroy public confidence in the holder of the office.

Honourable senators, the Governor General's role in addresses of the houses to remove judges is absolute, final and telling.

May I have a few more minutes, please?

The Hon. the Speaker: It is agreed.

Senator Cools: In his 1946 sixth edition of Chalmers and Hood Phillips' Constitutional Laws of Great Britain, The British Empire and Commonwealth, Owen Hood Phillips wrote at page 392 that:

The King would be bound by convention to act on such an address.

If it's in a statute, the king is already predisposed.

The two houses may proceed by bill, resolution or impeachment to remove judges with tenure during good behaviour. Removal by the houses is most rare for the good reason that such removals are confidence votes. A government minister's failure to obtain agreement in one or both houses is a government defeat, subject to the government's retirement. This loss of confidence is the inevitable result that attends failure in their exercise of the royal prerogative in judicial appointments and the administration of justice. This is why governments sometimes unduly and unfairly pressure certain judges to resign.

Honourable senators, on May 4, 1933, in the House of Commons, Prime Minister Richard Bedford Bennett spoke on this consequence of government failures in addresses to remove high officers pursuant to the power of a statute's clause. At page 4586 of the Commons Debates, he said:

The question must be submitted to the high court of parliament, and the government of the day having submitted its cause, not to this house alone but also to the other branch of parliament which may not conceivably support the government, and that has very often happened, if it is unable to secure the approval of that other branch of parliament, as well as the approval of the commons, it fails and the government must go.

And at page 4587 that:

When a joint address is to be agreed upon, if one party does not agree to it, there is no joint address, and the government which initiates it must accept the responsibility for it. That is the difference between that and a statute. A government's measure may be defeated in the Senate, and that is the end of it. But that is not this case. The government has risked its fate by dismissing a man from his job. It has risked its all on that dismissal, and it has made that dismissal subject to the joint approval of two branches of parliament.

That is why it is rarely used. The last one was in the U.K. and it was Sir Jonah Barrington for a malversation. A government risks all to unseat a judge. Prime Minister Bennett was clear in the exchange with William Daum Euler, the former Minister of National Revenue, at page 4587 as follows:

Mr. Euler: I cannot conceive that the life of the government, for any reason, can be dependent upon the action of the Senate of Canada. The Prime Minister laughs at that, as he so often does.

Mr. Bennett: The Senate put the Macdonald government out.

It's a beautiful exchange and very instructive.

In any event, colleagues, I just wanted to put some of the rich constitutional history of our country in respect of these large questions that seem not only now unknown but not even thought about. As I read the massive press coverage on these two incidents, I thought, "What a sad thing that had happened to Justice Nadon."

What's more important, too few people seem to have a handle on the fact that the two houses have a role in these matters.

I invite colleagues to take a closer look at these very grievous matters that have transpired and the consequences for the persons and for the Government of Canada. It was a very embarrassing thing for the government. These matters are Senate business. It may not be well understood, but this place truly is a high court. I thank you all for your attention. It was quite a mouthful. This has been a lot of work.

Honourable senators, I love the system that we live in. I worship at the altar of Sir John A. Macdonald and the great thinkers who fashioned a document because they felt strongly that their unity was the only way they could overcome American expansion. They set aside personal differences and came to agreement.

Our Constitution has lasted 150 years, which is unusual. I add that all future constitutional amendments should endeavour to last another 150 years. Thank you, colleagues.

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

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