Document Information

Date: 1980-09-08
By: Secretariat of the Conference
Citation: Federal-Provincial Conference of First Ministers, Report of the Continuing Committee of Ministers on the Constitution to First Ministers, Supreme Court, Doc 800-14 (Ottawa: 8-12 September 1980).
Other formats: On order.

DOCUMENT: 800-l4/

CONFIDENTIAL

FEDERAL-PROVINCIAL CONFERENCE

OF

FIRST MINISTERS

Report of the Continuing Committee of Ministers
on the Constitution to First Ministers

SUPREME COURT

Ottawa
September 8-12, 1980

SUPREME COURT

Areas of Agreement

The following appear to be matters on which
there is agreement:

– the Supreme Court be entrenched in the
Constitution;

– judges to hold office during good behaviour
until retirement age but the age of retirement
be reduced from seventy-five to seventy years;

– provincial governments as well as the federal
government have the right to make references
directly to the Supreme Court;

– there be a guaranteed right to appeal
constitutional issues to the Surpeme Court
with the leave of that Court: in the case
of appeals from references made by a provincial
government to its Court of Appeal or references
made by the federal government to the Federal
Court leave of the Supreme Court would not
be required;

– the Minister of Justice should consult with
the provincial Attorneys General before
Parliament enacts any law respecting
those aspects of the Supreme Court not entrenched
in the Constitution.

These are reflected in the attached draft text.

The following issues need to be focussed upon by Ministers.

1. Composition and Role

The Committee notes that there was broad acceptance
of the proposition that the Supreme Court should reflect
the principle of dualism arising from our two systems
of law. There is less agreement, however, on the precise
means by which this should be accomplished.

The proposal which is supported by a majority
of governments is an eleven-man court composed of six
common law judges and five civil law judges. Most of
those supporting this proposal expressed the view that while
it was not their preferred position, they were willing
to support the proposal to accommodate Quebecls particular
interests. A draft text of such a proposal is attached
as Appendix A.

A proposal which would provide for an eleven-
man court, seven common law judges and four civil law
judges was also discussed. There was less support
for this proposal. The lack of approval in most instances
was related to the aforementioned concern to accommodate
Quebec’s interest.

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A thirteen-man court, composed of eight common law
judges as proposed by Nova Scotia was also discussed. Nova
Scotia’s proposals in this regard, together with its’
proposals for an eleven-man court, are attached as Appendix 3.

A proposal tabled by British Columbia, which also
involves an eleven~man court, seven common law and four
civil law judges was discussed. A copy of that proposal
is attached as Appendix:C with a notation thereon respecting
an amendment subsequently suggested by British Columbia.

Issue:
Should the Supreme Court be composed of
eleven judges, with six common law and five
civil law judges? If not, how many judges.
should there be and how should the court be
structured?

2. Entrenchment of Principle of Alternating Chief Justice

Another issue related to the principle of
dualism is that of entrenching the principle of alternate
appointments of common law and civil law Chief Justices
in the Constitution.

Issue: Should the alternate appointment of Chief Justices
from among the common law and civil law members
be entrenched in the Constitution?

3. Appointment Procedure

It is generally agreed that the appointment
procedure should require the federal Minister of Justice
to consult with all provincial Attorneys General when
a vacancy is to be filled and to obtain the consent
of the Attorney General of the province from which the
appointee comes. An unresolved issue arising out of
this, however, is the requirement for a deadlock-breaking
mechanism to provide for cases in which the Minister
of Justice and the Attorney General fail to agree.

Issue: Which of the following options is appropriate
to deal with the situation where the federal
Minister of Justice and the provincial Attorney

General fail to agree on appointment:

(1) a variation of the Victoria Charter
formulation to allow provinces to also
nominate candidates for consideration by
the nominating council, but with specified
time periods significantly shortened;

(a copy of the relevant provisions of
the Victoria Charter are attached as
Appendix D)?

(2) a provision requiring the Chief Justice

to join with the federal Minister of

Justice and the provincial Attorney General

to decide the matter?

(3) a provision requiring the federal Minister
of Justice and the provincial Attorney
General to choose a third person to join
with them to decide the matter and if they
are unable to agree the Chief Justice to
choose such third person?

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(4) no mechanism?

4. Appointment of Superior, District and County Court
Judges (section 96)

At the Ottawa CCMC meeting nine provinces
supported the following proposition:

1) that a province may appoint the judges
of its Superior,District,and County Courts
and where it exercises that power, the
provisions of s.96 of the B.N.A. Act
would not be applicable to the province; and

2) that the constitution:

a) guarantee the existence of a superior»
court of general jurisdiction in each
province;

b) guarantee the independence of the
members of such courts;

c) enable a province to establish bodies
to administer the application of its laws;

d) enshrine the power of judicial review in
the superior court of general jurisdiction;
and A

e) provide that there shall not be a dual
system of courts.

The representative of Manitoba while in favour
of the principles in para (2) favoured the retention
of the federal appointing power.

The federal Minister of Justice stated that,
while he recognized the difficulties caused by the
judicial interpretation of s.96 for provinces attempting
to create administrative bodies, he did not believe that
it was necessary to change the whole judicial system in
Canada in order to solve that problem. In his view,
the matter required further consideration.

Issue: Should section 96 be repealed in accordance with the
proposal outlined above?

APPENDIX A
BEST EFFORTS DRAFT

CONFIDENTIAL

August 12, 1989

The Supreme Court of Canada

1. There shall be a general court of appeal for
Canada Called the Supreme Court of Canada.

2. The Supreme Court of Canada shall consist of
eleven judges, who shall be appointed by the Governor
General.

3. (l) A person is eligible to be appointed
as a judge of the Supreme Court if, after having
been admitted to the bar of any province, the person
has, for a total period of at least ten years, been.
a judge of any court in Canada or a member of the
bar of any province.

(2) Five of the judges of the Supreme Court shall
be appointed from among persons who, after_having been
for a total period
of at least ten years, been judges of any court of that
province or of a court established by Parliament or
members Of the bar of Quebec.

4. (1) A chief justice, to be called the Chief
Justice of Canada, shall be designated by the Governor
General.

(2) The Chief Justice of Canada shall be designated for
single term,alternatively,from among the judges appointgd
subsection 3(2) and from among the other judges of
the Supreme Court.

(3) The term of office of a judge as Chief Justice of
Canada expires seven years after the designation has
effect or upon the judge attaining the age of retirement,
whichever first occurs.

5. (1) Where a vacancy in the Supreme Court
occurs, the Minister of Justice of Canada shall consult with
the Attorneys General of all of the provinces and shall see
the consent of the Attorney General of the province
of the person being considered for appointment as
to the appointment of that person.

(2) Where consent is not forthcoming, the Minister
of Justice of Canada and the appropriate provincial
Attorney General shall, together with [a person chosen by
them or if they do not agree a person chosen by] the Chief
Justice of Canada, determine the person to be recommended
for appointment.

6. (l) The judges of the Supreme Court hold office
during good behaviour until they attain the age of
seventy years but are removable by the Governor General
on address of the Senate and the House of Commons.

(2) Parliament shall provide for the salaries, allowances
and pensions of the judges of the Supreme Court.

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7. The Supreme Court has exclusive ultimate
appellate civil and criminal jurisdiction.

8. An appeal to the Supreme Court lies with
leave of the Supreme Court from any judgment of the
highest court in a province, or a judge
thereof, in which judgment can be had in the particular
case sought to be appealed to the Supreme Court,
where any question involved raises a constitutional
issue.

9. An appeal to the Supreme Court lies from an
opinion pronounced by the highest court established
by Parliament on any constitutional question referred
to it by the Governor General in council.

10. Parliament may make laws authorizing the Governor
General in Council to refer questions of law or fact direct.
to the Supreme Court.

11. An appeal to the Supreme Court lies from an
opinion pronounced by the highest court in a province
on any constitutional question referred to it by the
Lieutenant Governor in Council of the province.

12. The legislature of a province may make laws
authorizing the Lieutenant Governor in Council to refer
questions of law or fact directly to the Supreme Court.

13. In addition to any appeal provided for by
Act, an appeal to the Supreme Court lies as may be
provided by Parliament.

14. Parliament may make laws providing for the
organization, maintenance and operation of the Suprere
Court, and the effective execution and working of this
division and the attainment of its intention and otjects.

15. The Minister of Justice of Canada shall consult
with the Attorneys General of the provinces in respect of
proposals for laws referred to in sections 13 and 14.

TRANSITIONAL

XX. (1) The court existing immediately before
the commencement of this Act under the name of the
Supreme Court of Canada is continued as provided in this
Act.

(2) The Chief Justice of Canada and other judges of
the Supreme Court of Canada shall continue in office
as though appointed and designated in the manner provided
in this Act except that they shall hold office as judges
Chief Justice until attaining the age of seventy-five years.

(3) Until otherwise provided pursuant to this Act
all laws respecting the Supreme Court of Canada and the
judges thereof that were in force immediately before
the commencement of this Act shall continue, subject
this Act.

APPENDIX B

CONFIDENTIAL

Nova Scotia

Discussion Paper

SUPREME COURT OF CANADA

WHEREAS:

1) There exists in Canada two legal regimes,
i.e. civil law regime in the province of Quebec and
common law regimes in all the other provinces; and

2) The workload of the Supreme Court has increased and
may be expected to increase substantially as a
result of the proposed changes in the jurisdiction of
the court (e.g. right of provinces to make direct
references) and the proposed constitutional changes in
the B.N.A. Act (e.g. inclusion of charter of rights, etc.)
and

3) The practise has been to select the members of the
court from the regions of Canada subject to the statutory
requirement that three members come from the civil law
regime of Quebec; and

4) Judges from the civil law regime should exercise the
appellate jurisdiction of the court in civil cases from
Quebec and vice versa in respect to civil cases from the
common law provinces; and

5) That constitutional questions or issues coming before
the court should be decided by a composition of the
members of the court which reflect the two legal civil
regimes of Canada;

THEREFORE:

Proposal #1

a) The Supreme Court be increased from 9 members to

13 members to be appointed as follows:

5 members from the civil law province of Quebec

3 members from the common law province of Ontario

– 3 members from the common law provinces of Manitoba,

Saskatchewan, Alberta, British Columbia
2 members from the common law provinces of New Brunswick

Nova Scotia, Prince Edward Island, Newfoundland;

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b) Civil law appeals not involving constitutional
issues he heard by a panel of the court comprising
all or a majority of civil law appointed members of the
court,

c) Common law appeals not involving constitutional issues
be heard by a panel of the court comprising all or
a majority of common law appointed members of the
court,

d) Constitutional questions or appeal raising constitutional
issues be heard by either

– an 11 member panel comprising 6 common law
appointed judges and 5 civil law appointed judges,

or

– a 7 member panel comprising 4 common law appointed
judges and 3 civil law appointed judges

as the Chief Justice considers appropriate

OR

Proposal #2

a) The Supreme Court be increased from 9 members to

11 members to be appointed as follows:
– 4 members from the civil law province of Quebec,
– 3 members from the common law province of Ontario
– 2 members from the common law provinces of Manitoba,
Saskatchewan, Alberta, British Columbia
– 2 members from the common law provinces of New Brunswick,
Nova Scotia,’Prince Edward Island, Newfoundland,

b) Civil law appeals not involving constitutional issues be

heard by a panel of the court comprising a majority of

civil law appointed members of the court.

c) Common law appeals not involving.constitutional issues
he heard by a panel of the court comprising a majority
of common law appointed members of the court;

d) Constitutional questions or appeal raising constitutional

issues he heard by either

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a 9 member panel comprising 5 common law
appointed judges and 4 civil law appointed judges

or

a 7 member panel comprising 4 common law appointed
judges and 3 civil law appointed judges ‘

as the Chief Justice considers appropriate.

CONFIDENTIAL

APPENDIX C
SUPREME COURT OF CANADA
B.C. PROPOSAL

When the Supreme Court of Canada becomes an instrument
of the Constitution as the final adjudicator of national
it will symbolize to Canadians a new era in
the life of the Court. If the Constitutional proposals meet
with the approval of all governments, it will mark the end of
an era where the Court has been viewed by some as an emanation
of just the central government.

British Columbia, therefore, views the Court as an
important element in the reform of the Canadian Constitution
and one which must be the subject of Continuing indepth consider-
ation in the remaining three weeks.

We make the following proposal which we believe will meet
the needs of all Canadians in forming the basis of an agreement
on the court.

We propose that the Court consist of eleven Justices whose
selection will be determined in the following way:

(a) Justices of the Supreme Court shall be appointed
by the Governor General in Council upon the recommendation
of a Council of Canadian Attorneys-General of; this
Council will be made up of the Attorney-General of
Canada and the Attorney-General of each province;

(b) Nominations of Justices by the Council will be
initiated by the Attorney-General of Attorneys-
General from the appropriate nominating area identified
by the Council;

(c) To reflect the legal duality of the Canadian nation
four Justices shall be nominated by the Attorney-
General of Quebec;

(d) to reflect the diversity of the nation, Justices
shall be chosen to ensure that the Court reflects
the collective experience and background knowledge
of all parts of Canada. Representation shall come from
all reas of Canada as was attempted in the Federal
Bill C-60; a model which British Columbia can accept.

CONFIDENTIAL

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This proposal ensures an immediate additional seat
for both the civil and common law jurisdictions. With
the changes in the Court which are forthcoming, the
Council of Attorneys General will be able to meet
regularly and begin the process of deciding how to
best reflect Canada’s duality and diversity through
court appointments.

August 26, 1980

Note: British Columbia agreed to consider an amend-
ment to the above saying that a nominating
council be constituted to select the area from
which the judge will come and then the appoint-
ment would be made by the Attorney General of
the appropriate province and the Attorney General
of Canada with a deadlock to be resolved by the
Council of Attorneys General.

APPENDIX D

Victoria Charter – Deadlock Breaking Mechanism

Art. 29. where after the lapse of ninety days
from the day a vacancy arises in the Supreme
Court of Canada, the Attorney General of Canada
and the Attorney General of a Province have not
reached agreement on a person to be appointed
to fill the vacancy, the Attorney General of
Canada may inform the Attorney General of the
appropriate Province in writing that he proposes
to convene a nominating council to recommend
an appointment.

Art. 30. Within thirty days of the day when the
Attorney General of Canada has written the Attorney
General of the Province that he proposes to
convene a nominating council, the Attorney
General of the Province may inform the Attorney
General of Canada in.writing that he selects either
of the following types of nominating councils:

(l) a nominating council consisting of the
following members: the Attorney General
of Canada or his nominee and the Attorneys
General of the Provinces or their
nominees;

(2) a nominating council consisting of the
following members; the Attorney General
of Canada or his nominee, the Attorney
General of the appropriate Province or
his nominee and a Chairman to be selected
by the two Attorneys General, and if
within six months from the expiration of the
thirty days they cannot agree on a
Chairman, then the Chief Justice of the
appropriate Province, or if he is unable to
act, the next senior Judge of his court,
shall name a Chairman;

and if the Attorney General of the Province fails
to make a selection within the thirty days above
referred to, the Attorney General of Canada may
select the person to be appointed.

Art. 31. when a nominating council has been created,

the Attorney General of Canada shall submit the
names of not less than three qualified persons to
it about whom he has sought the agreement of the
Attorney General of the appropriate Province .

to the appointment, and the nominating council shall
recommend therefrom a person for appointment to the
Supreme Court of Canada; a majority of the members
of a council constitutes a quorum, and a
recommendation of the majority of the members at a
meeting constitutes a recommendation of the

council