OTTAWA - A bill to disqualify unilingual judges from appointment to the Supreme Court of Canada appears likely to die in the Senate, the MP who authored it fears.
Yvon Godin, the NDP MP who introduced it, says a Conservative cabinet minister told him his bill “will be brought down in the Senate.”
“I don’t want to be a pessimist, but when the government is not pleased with a bill, they just defeat it,” Godin tells Law Times.
Bill C-232 would amend the Supreme Court Act to require that all justices understand both French and English without the aid of an interpreter.
Opposition MPs passed the bill 140-137 over Conservative objections in the House of Commons on March 31. In the Senate, where the Conservatives hold a working majority, hearings have yet to be scheduled on the measure and are “undetermined,” an official said.
But Godin says Heritage Minister James Moore told him privately that his bill would languish in the upper house. “It was right after the Commons vote. I was happy; I won my vote. I was passing James Moore’s desk and I said, ‘Pretty good, eh?’ And he said, ‘It won’t go far when it goes to the Senate.’”
“To me, this is totally undemocratic,” Godin says.
Moore’s office refused to comment on the issue. “We do not comment on private conversations,” a spokesperson for the minister says.
Sen. Marjory LeBreton, Conservative leader in the upper house, also declined comment on whether the bill had been stalled. Since its arrival in the Senate eight months ago, the chamber has met 56 days and passed 12 bills into law, including three budget measures.
“The agenda has been pretty light,” says Liberal Senate opposition leader James Cowan. “The government doesn’t seem to want to move that bill forward.”
According to Cowan, Liberal senators were anxious to consult the legal community on the bill’s impact. “We’re trying to get that to committee,” he says. “We want to hear from the Canadian Bar Association, from advocates, and the general public.”
Suspicions the bill will lapse followed Conservative senators’ rejection last month of the climate change accountability act, another NDP bill that cleared the Commons with opposition support. The Senate vetoed the climate bill without hearings or lengthy debate.
“The Senate has a responsibility to give these bills proper consideration,” says Cowan.
But Conservative senators have questioned bill C-232 as an unreasonable measure that would disqualify unilingual nominees to the court regardless of judicial competence.
“Bilingualism is not part of the study of law,” B.C. Tory Sen. Nancy Greene Raine tells Law Times. “What we’re looking for at the Supreme Court is the best legal minds in the country.”
Greene Raine earlier told the Senate that “to make bilingualism compulsory would change something that is useful into something that would diminish the court over time by depriving it of far too many worthy candidates.”
Elaine McCoy, a Progressive Conservative senator and former senior counsel for the Alberta Energy and Utilities Board, says that “as someone who has been to the Supreme Court,” she considers the bilingualism requirement unnecessary.
“Trial courts are a whole different game, when facts are at issue and there may be five different versions of an event,” McCoy, who prepared a utilities board factum for an appeal in Atco Ltd. v. Calgary Power Ltd., tells Law Times.
“At the Supreme Court, everything is in writing. A case has been to trial; it’s been through appeal. There is nothing spontaneous. There are no nuances.”
In fact, McCoy says a retired English-speaking Supreme Court judge told her recently that “his being unilingual did not prejudice anybody.”
“The number of times that a legal argument is studied, hashed over, reviewed, revisited, and discussed among the justices, their researchers, and law clerks does not allow for very many, if any - I would argue if any - missing of subtleties or arguments or jurisprudence,” McCoy previously told the Senate.
She added: “It seems to me the bill negates the very flaw that it allegedly corrects: that there is an opportunity and a necessity for a judge not to miss a nuance in argument. I do not think that happens or is based on linguistic ability.”
The Supreme Court Act currently requires at least three of nine judges to be from Quebec. Under other provisions, appointees must be under age 75, have at least 10 years’ standing at the bar, and reside within 40 kilometres of Ottawa.