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Retrospectives and Perspectives on the Federal Court of Appeal

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Educational Seminar, “Retrospectives and
Perspectives on the Federal Court of Appeal”
Thursday, June 25, 2009
Conference Centre
2 Rideau Street
Ottawa, Ontario

Alice Desjardins J.A.
Federal Court of Appeal

It was not the best of times, it was not the worst of times, it was Ottawa. It was the year of our Lord one thousand nine hundred and sixty nine. It was February of sixty nine.

It was winter. The canal was closed for navigation. The canal, the safe military supply route to Kingston, still stood as the symbol of Britain’s firm resolve to defend the interior of British North America against possible invaders from the south.

The National Capital Commission was working to complete the skate way which finally opened on January 18, 1971. The National Art Center was under construction.

I arrived in Ottawa.
There were lots of new things to learn. The exhilaration of learning in my professional career was ever present.

I was on a two years’ leave from my law school at the Université de Montréal, where I was teaching constitutional law since 1961, being the first woman to hold a teaching position in a law school in Canada. I was offered a position in the Constitutional Review Section of the Privy Council Office. I then worked for Justice Canada till 1981. Constitutional review matters brought me precisely in this room where numerous First Ministers Conferences and Meetings of High Officials were held. In those days however, I was not the one standing in the limelight.

In 1981, I was appointed to the Québec Superior Court. After six years on the bench, soldiering my way through the work of the civil and criminal courts and learning the ropes in the delivery of justice, came the year 1987 and with it my appointment to the Federal Court of Appeal on July 29.

The first years at the Court were grandiose in protocol. Entering through the main door into the 1938 art deco building designed by the Montreal architect Ernest Cormier, where our court was then located, was an event, every morning.

I remember distinctively my first day of sitting. The usher of the Court, in a tailcoat, came to escort me to the office of the presiding judge and from there to the courtroom.

I honestly thought, for a moment, that he was taking me to the ball.

But, of course, the courtroom, with its shining brass and African and Australian wood panels, was no ballroom at all.

The name of the game was to make sure I understood not only the issues and the arguments but, more importantly, the point.

I was expected to assist in finding not just any solution but the solution, the one that would settle the case and flourish the law since there would rarely be a precedent like the one to be crafted.

In those days, there was no colleague specifically assigned as a mentor although they all offered generously to assist.

I soon discovered that to seek assistance, one must know what one should know. One does not seek assistance if one does not know what one needs to know.

The following example will clarify my statement.

I had no worry when I circulated my first draft, considering I had six years of experience as a trial judge.

A colleague soon came back and told me that since I was sitting on a panel of three, I did not know for sure whether any of the two others would share the views expressed in my draft although we had earlier discussed the general lines. Therefore, my conclusion could only be written in the conditional tense “I would allow this appeal …” or “I would dismiss this appeal …” It was only after having read my reasons in draft that my colleagues could decide for sure what course of action they would take. If at least two agreed on the draft, we had a judgment.

If on the other hand the judgment was delivered from the bench, the verb should be in the future tense since, at that stage, the members of the bench would have made up their mind on the draft reasons. I could then write with confidence “This appeal will be allowed …” or “This appeal will be dismissed …”
Nobody had told this to me in advance of my circulating the draft.

I learned as I went. This, today, is characterized as “experience”.

Thanks to Three Rivers Boatman Ltd. v. Conseil canadien des relations ouvrières,[1969] S.C.R. 607, and section 101 of the Constitution Act, 1867, we were in existence. But two years after my appointment, the maintenance of the Federal Court as an institution was questioned by the Honourable Bud Smith, Attorney General of British Columbia, in a document published in 1989 and entitled “A Proposal for Merger of the Federal Court of Canada into the Provincial Superior Courts”.

The Canadian Bar Association, British Columbia Branch, wrote a “Report on Proposed Abolition of the Federal Court of Canada”, Vancouver, 27 November 1989. A year later, the Canadian Bar Association published its “Report to Council on the British Columbia proposal for merger of the Federal Court into Provincial Superior Courts” (Legislation and Law Reform, September 1990).

This is the last we heard on this proposed abolition or merger of the Federal Court. Amendments to the Federal Courts Act (Bill c-38) were introduced on September 28, 1989 and proclaimed in force on February 1, 1992. On the one hand, they were meant to solve the jurisdictional issues between the Federal Court and the Provincial Superior Courts. Prior to February 1992, the Federal Court had exclusive jurisdiction to entertain actions against the Crown in Right of Canada, subject to express statutory and implied constitutional exceptions. The reform of 1992 made concurrent jurisdiction the rule and exclusive jurisdiction the exception. Other amendments were made to improve the effectiveness of the Federal Court particularly in the area of judicial review as between the two divisions of the Court.

Things remained stable.

Then came the 2009 decision of the Superior Court of Ontario in Her Majesty the Queen v. Ahmad et al., dealing with the constitutional validity of sections 38-38.16 of the Canada Evidence Act where leave to appeal has now been granted by the Supreme Court of Canada (No 33066). This matter is of course for another day and fort the next generation.

In retrospective, administrative law in my early days with the Court looked much simpler than it is today. We proceeded under the guidance of the then section 28 of the Federal Court Act and the New Brunswick Liquor Case (Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp.,[1979] 2 S.C.R. 227 (C.U.P.E.)). The rest was common sense. We intervened when we were convinced the decision could not stand considering the specialization of the tribunal and the patently unreasonable interpretation given by it to the relevant legislation.

We applied these tests with a reasonable peace of mind. But as more issues arose, more tangible form was given by the Supreme Court of Canada to the framework articulated by Dickson J. Consequently, my peace of mind was of short duration. It has not returned, even with the help of Dunsmuir v. New Brunswick, 2008 SCC 9. It may have been revived with Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, where the Supreme Court of Canada applied deference with the result that the minority view I expressed prevailed over that of my two learned colleagues!

We are a bilingual Court.

The judges of our Court and counsel appearing before us have the special task of dealing constantly with federal legislation and with both the French and English versions of the statutes.

In my early days with the Court, we reproduced in our reasons for judgment only the version of the statute or regulation which corresponded to the language of the case. Counsel reproduced in their memoranda generally, the version they had been working on.

In 1989, a panel of this Court, of which I was a member, heard in Montreal the cases of Vigneault v. Canada (Canada Employment and Immigration Commission), [1989] 1 F.C. 294 and Giroux v. Canada (Canada Employment and Immigration Commission,) (1988) 86 N.R.147, where we had to determine the meaning of the word “ earnings” under the terms of section 57 of the Unemployment Insurance Regulations, C.R.C. c. 1576, s. 57(3)(h) as amended by SOR/85-288, s. 1. One of the authorities cited to us was the case of Vennari v. Canada (Canada Employment and Immigration Commission),[1987] 3 F.C. 129 (C.A.), an earlier decision of our Court rendered by an English speaking panel sitting in Toronto.

We, the French speaking panel, noted that Vennari had been decided by our Court on an interpretation of the word “earnings” based exclusively on the English version of the provision and the meaning given to it was absolutely inconsistent with the French version. We explained in our decision that the only possible interpretation of the French version was easily reconcilable with the English version, whose meaning it clarified, and that, if the French version of the provision had been brought to the attention of the English speaking panel, the decision would have been different. Pratte J.A., speaking for the Court,determined that Vennari had been wrongly decided and we reversed it.

This inaccuracy of the English speaking panel of our Court had been noted and commented in on their judgments by two eminent, I should say, members of the Trial Division of the time sitting as Umpires, Justice Barry L. Strayer, later a member of our Court, (John W. Smith, CUB14380, 9 October 1987), and Justice Barbara Reed (James Leckie Walter Aird, Vito Desilvio, CUB14478, 10 November 1987).

Our present Rule 348(3) of the Federal Courts Rules requires that extracts of federal statutes and regulations in a book of statutes, regulations and authorities shall be reproduced in both official languages. This is meant to avoid possible errors of the sort. Now both official versions of federal statutes and regulations are brought to the attention of counsel and judges alike and the burden in on both in the road to attain perfection.

We are a bijural court.

Interpreting a federal statute often results in our judges dealing with common law or civil law matters, whether or not they have legal training in only common law or civil law or both. This flexibility is essential for the Court to operate effectively. Sometimes we have to put on the hat or walk in the shoes of a civil law judge or a common law judge to rule on a case.
I sat with two common-law colleagues, Chief Justice Isaac and Mr. Justice Stone, in a case where we had to consider a point in civil law. They had to walk in the shoes of a civil law judge to determine the issue (Beloit Canada Ltd. v. Valmet-Dominion Inc. (C.A.),[1997] 3 F.C. 497, paras. 134 to 140). In addition, in Royal Winnipeg Ballet v. M.N.R. (F.C.A.), 2006 FCA 87, our Court had to decide whether the intention of the parties could be used to interpret a common-law contract. The opinions of my two common-law colleagues were diametrically opposed. I had to walk in the shoes of a common-law judge and search in the common law for the principles that enabled me to cut this Gordian knot.

We have jurisdiction throughout Canada.

Our country extends not only from east to west but also to the north. In 1991, for the first time in the history of the Federal Court of Appeal, a panel of our Court, of which I was a member, flew to Yellowknife to hear an application for judicial review of a decision by the Northwest Territories Water Board under section 24 of the Northern Inland Waters Act, R.S.C. 1985 c. N-25. This federal tribunal, created in 1972, is responsible for the conservation, development and utilization of water in the Northwest Territories. This board was one of some 120 federal tribunals at the time that I was unaware of.

At issue was the Board’s refusal to amend the licensing conditions for the Polaris mine on Cornwallis Island so as to increase the percentage of zinc and lead in effluent from the mine into Garrow Lake and subsequently into the Arctic Ocean. The case raised chiefly procedural fairness issues, which Mr. Justice Pratt ably resolved.

I did not know about this tribunal. However, I recognized the importance of the issues it decided. I am sure that we would have gone to Cornwallis Island if our services had been required (Cominco Ltd. v. Northwest Territories Water Board, [1991] 3 F.C. 177 (C.A.)).

Then came the Canadian Charter of Rights and Freedoms in 1982.

Human rights, regardless of the form in which they are expressed, are among the most difficult issues to deal with. It is important to first give them meaning by defining them; some of them, such as privacy, represent, under simple concepts, many and varied values from one group to another.

Other rights, such as the right to life, express a universal and fundamental value, but civilizations have often been unable to give these rights their full meaning.

But the most difficult phase is recognizing whether a Charter right exists in a given situation. This difficulty is a constant. 

I think we have all put a lot of time, effort and ink into writing about these issues. I used twice the amount of ink in the case of Lavoie v. Canada (C.A.), [2000] 1 F.C. 3, [1999] F.C.J. No. 754 (Lavoie). Just as we were about to issue our judgment, the Supreme Court of Canada was issuing its decision in the Law case, and Mr. Justice Iacobucci, for the Court, suggested a new way to analyze section 15. We had to rewrite our reasons in light of the new directions.

The Lavoie case concerned the constitutional validity, under the Charter, of the provisions of the Public Service Employment Act, S.C. 2003 c. 22,that gave preference to Canadian citizens in certain public service positions. The majority opinion of our Court, in which I participated, determined that the provisions were valid, and this opinion was confirmed by the Supreme Court of Canada.

There has been less emphasis on proclaiming human duties. The horrors of World War II inspired the 1948 Universal Declaration of Human Rights. Mrs. Eleanor Roosevelt, Chairperson of the United Nations Commission on Human Rights responsible for drafting the Universal Declaration, believed that it was more appropriate to proclaim the fundamental rights of human beings than to enumerate the obligations (René Cassin, “De la place faite aux devoirs de l’individu dans la Déclaration universelle des droits de l’homme” in Mélanges offerts à Polys Modinos, Paris, Pédone, 479 at page 481).

However, in the years prior to the proclamation of the Universal Declaration of Human Rights, the United Nations sought opinions from authorities about the rights that should be entrenched in the proclamation. Mahatma Gandhi was one of them.

After first apologizing for the little time he had to write and admitting, in particular, that life had given him very little time to read, Mahatma Gandhi wrote:

I have learned from my illiterate but wise mother that all rights to be deserved and preserved came from duty well done. Thus the very right to live accrues to us only when we do the duty of citizenship of the world. From this one fundamental statement, perhaps it is easy enough to define the duties of man and woman and correlate every right to some corresponding duty to be first performed. Every other right can be shown to be a usurpation hardly worth fighting for (United Nations Weekly Bulletin, Vol. 3, No. 17, October 21, 1947, p.521).

Duties are governed in large part by internal law rather than constitutional documents. They are indirectly recognized in the limits to these rights, limits that are governed by section 1, or in section 7 where fundamental justice must be weighed or again, in the sometimes necessary reconciliation of the rights of some that are guaranteed by the Charter in comparison to the rights of others that are also guaranteed by the Charter (Dagenais v. Canadian Broadcasting Corp.,[1994] 3 S.C.R. 835, para. 72, which dealt with the right to a fair hearing on the one hand and the right to freedom of expression on the other).

But no one seems to have directly addressed human duties. The only decision I am aware of is our Court’s decision in Band Council of the Abenakis of the Odanak v. Canada (Minister of Indian Affairs and Northern Development),2008 FCA 126, where I wrote, for the Court, that registered Indians who live off reserve and who have the right to vote in reserve matters as a result of the Supreme Court of Canada decision in Corbière, are responsible for reporting their change of address to the Registrar. Otherwise, their names do not count for purposes of establishing whether the “majority of the electors” of the band voted in favour of assuming control of its own membership under section 10 of the Indian Act, R.S.C. 1985, c. I-5, which is a prelude to a process of greater political autonomy for Indians.

That judgement was not appealed.

In the final analysis, what is the purpose of the law?

Not for the parties or for the ends of justice, but for the judge!

The purpose of the law is to form a judge’s character!

Dean Christopher Columbus Langdell, who was the dean of Harvard Law School from 1870 to 1895, insisted that students examine any text critically, using their own evaluation, that they scrutinize precedents closely and accept no one else’s judgment until they had judged its logic and soundness for themselves (Arthur E. Sutherland, The Law at Harvard, Harvard University Press, Cambridge, Massachusetts, 1967, p. 178).

Resolving a dispute through the courts is a mark of civilization provided that the institution that dispenses justice maintains quality, independence and impartiality.

I have had the privilege of serving in this Court for 22 years. My memories are indelible. I did not notice the time passing by.