QUEEN’S UNIVERSITY
FACULTY OF LAW
Public Law
Law 142
Fall 2018
MID-TERM EXAM
October 17, 2018
Professor Grégoire Webber
Please note: Students with last names A-M will be writing the exam in room 202.
Students with last names N-Y will be writing the exam in room 400.
Student no.: ____________________
Instructions:
1. This examination paper has 2 pages, including this page.
2. This is an open book examination.
3. The duration of this examination is 1.5 hours.
4. The examination paper has one question. There are three aspects to this question.
Each of the three aspects is weighted equally. You are recommended to devote 30
minutes to each of the three aspects of the question.
5. As stated in the syllabus, this mid-term examination is “to assist only”, meaning that
it will only affect your final mark in the course if your grade on this mid-term is
better than your grade on the final exam. If that is the case, the exam is worth 25%. If
that is not the case, the exam is worth 0%.
6. Please note: proctors are unable to respond to queries about the interpretation of exam
questions. Do your best to answer exam questions as written. You may state any
assumptions you are making.
This material is copyrighted and is for the sole use of students registered in this course
and writing this exam. This material shall not be distributed or disseminated. Failure to
abide by these conditions is a breach of copyright and may also constitute a breach of
academic integrity under the University Senate's Academic Integrity Policy Statement.
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Question 1
This means that
you’re not
arguing the case
in court, but
writing a ‘memo’
to your client
stating whether
or not you think
they will have a
good case.
This is your client. This means that you need to think of
arguments that support your client (while also noting
where the other side has good arguments, but
concluding that your arguments are better). Sometimes
you might be a SCC judge, in which case you would
address both sides objectively.
The Prime Minister of Canada has retained your legal services. He wishes to obtain a
legal opinion in relation to bilingualism in the Supreme Court of Canada.
Currently, the Prime Minister has decided that the Government will only consider for
appointment to the Supreme Court of Canada persons who, in addition to satisfying the
legal requirements in sections 5 and 6 of the Supreme Court Act, are “functionally
bilingual”, that is: able to understand both official languages without the aid of an
interpreter.
The Prime Minister seeks your legal opinion on three questions:
(a)
Is the Prime Minister’s self-imposed decision that the Government will only
consider “functionally bilingual” persons for appointment to the Supreme Court
of Canada contrary to the constitutional requirements outlined by the Supreme
Court of Canada in the Reference re Supreme Court Act, ss. 5 and 6, [2014] 1
SCR 433?
(b)
If Parliament were to pass a law making it a legal requirement that the
Government only consider “functionally bilingual” persons for appointment to the
Supreme Court of Canada, would that law be constitutional or unconstitutional?
(c)
If it was thought desirable to amend the Constitution of Canada in order to
provide that the Government may only consider “functionally bilingual” persons
for appointment to the Supreme Court of Canada, which amendment formula
would be required to amend the Constitution of Canada to this effect?
For your reference, sections 5 and 6 of the Supreme Court Act provide as follows:
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.
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.
Eligibility for appointment can only be amended by
unanimous consent of the House of Commons, Senate
and all provincial legislative assemblies (Reference re
Supreme Court).
The Court held that the amendment to the Supreme
Court Act was not simply declaratory of the previous
law but an actual change to the composition of the
Court, and was therefore ultra vires federal Parliament.
A change to the composition of the Court can only be
made by a unanimous constitutional amendment under
s. 41 of the Constitution Act, 1982.
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