Friday, October 27, 2006

Pharmascience Inc. v. Binet, 2006 SCC 48 -- Who's in charge of handing out leave here?

In Pharmascience, the Supreme Court of Canada decided whether the word "on" in s. 122 of Quebec's Professional Code means every governed professional or everybody. If it's the former, then syndics (officials in charge of professional discipline) can order the production of documents from anyone, whether they are part of the profession the syndic has jurisdiction over or not.

The Quebec Court of Appeal thought the grammatical meaning of "on" in context was ambiguous, and invoked the principle that legislated search power must be clear to prefer the more restrictive interpretation. Justice LeBel, with a majority of the Supreme Court of Canada, disagreed.

The Pithlord speaks what can be gently referred to as "Western Canadian High School Francais." I can follow Stephen Harper in full oratorical flight, and could tell you the score in a game carried only by Radio-Canada. But I am not going to pronounce on the proper reference of the pronoun "on", especially since I suspect it is a Gallic plot to confuse Anglos in revenge for Agincourt. If the Quebec Court of Appeal think the linguistic issue is murky, I have no reason to disbelieve them. But it's LeBel's native language too, so what do I know?

But you don't get to be a contender in the "Best New Canadian Blog"* category by being shy to offer an opinion on a subject just because you don't know anything about it. And, after some reflection, I found I did have an opinion after all: this decision should never have existed in the first place because leave shouldn't have been given.

As the Canadian legal blogosphere's most prominent ectomorph has pointed out, all is not well with the mix of cases the Supremes take. Bar association meetings and Continuing Legal Education events across the country are filled with moaning about how the Nine don't resolve the pressing issues of somebody's practice, except when they are about how the Nine screwed everything up in their latest unfathomable pronouncement.

Now, to be fair, the time of the Nine is a scarce thing. They have to refuse to hear more cases than they can hear. So if we are going to be constructive critics, we have to bitch about what they are hearing, as well as what they're not.

And that is one of the things that makes Pharmascience so mystifying. If there is one type of litigation that can safely be left to provincial appellate courts, it is litigation that turns on the interpretation of ambiguous provisions in provincial statutes. No one else cares, and if the court has really screwed it up, the legislature can fix it relatively easily.

So no thumbs this time, but a blank stare of incomprehension.

Case Comment of Pharmascience Inc. v. Binet, 2006 SCC 48

Photo of Mr. Justice LeBel from Supreme Court of Canada collection. Credit Phillipe Landreville

*By the way, how's that going, L? You remember the deal...

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