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The bilingual judges debate: records reveal constitutional quandary

|Written By Tim Naumetz

OTTAWA - There has been plenty of political rhetoric in the public debate over a backbench MP’s bill proposing to legislate compulsory and perfect bilingualism on the Supreme Court of Canada.

But so far, the debate has featured few hard legal points from either side.

Deep in the annals of Parliament, however, lies the answer to at least one question that puzzles some of the debaters.

Why did Parliament write in an exclusion for the Supreme Court when it passed a law amending the Official Languages Act in 1988 requiring “every federal court” to ensure judges hearing cases could understand the official language chosen by the parties?

Like NDP MP Yvon Godin’s bill proposing to legislate a bilingualism requirement on the Supreme Court bench, the 1988 amendment enforced bilingual judicial availability to such a degree that interpreters weren’t an option.

The reason for the top court exemption, according to evidence from the House of Commons justice committee that studied the amending bill from March to June that year, is a mix of politics and law. But it was primarily an issue of law, it would seem, from then-justice minister Ramon Hnatyshyn’s point of view.

Hnatyshyn, who went on to serve a term as governor general, told the committee such a high threshold would likely violate the constitutional rights of some candidates for nomination to the Supreme Court under s. 133 of the Constitution Act, an 1867 British North America Act clause partly rolled into the Charter of Rights and Freedoms in 1982 that stated  that “either of those [English or French] languages may be used by a person or in any pleading or process in or issuing from any court of Canada established under this act, and in or from all or any of the courts of Quebec.”

The wording, Hnatyshyn told the committee, had been interpreted to mean that judges, as well as parties, “enjoy the right to choose their preferred language” under the Constitution Act.

“I do not think we can fetter the right of individual judges but we can impose an administrative duty upon a court to provide for the hearing of litigants in their own language.”

Hnatyshyn also addressed the unique character and practice of the Supreme Court, where all nine judges sit for important cases that are bound to be landmarks. In the Federal Court trial division, only one judge presides, while at the appeals level panels of three justices allow the court to meet official language requirements.

Politics had entered the picture the previous year, when then-prime minister Brian Mulroney convinced all 10 premiers to sign on to the ill-fated Meech Lake constitutional accord.

Among other concessions Mulroney made to obtain Quebec’s support for the 1982 Constitution Act was an allowance that the provinces would nominate candidates to the Supreme Court bench. The accord would also have enshrined Quebec’s statutory provision for three Supreme Court judges in the Constitution.

“So what we are saying then under our new regime is that there will be a nomination from each of the regions with respect to members of the court, and this would limit the candidates that may be proposed by, say, the province of Quebec,” Hnatyshyn said. “It seems to me that this [exclusion of the Supreme Court in the bill] is fair and reasonable.”

Hnatyshyn didn’t point it out at that hearing but he could have said the same thing about provincial nominations from the western provinces or Atlantic Canada.

“It could be argued, I think, that by having a requirement that judges on the Supreme Court of Canada be bilingual, this would negatively affect the right of a judge in Canada to be a member of the court and to use their own preferred official language,” he told the committee, whose members included Robert Layton, father of current NDP Leader Jack Layton.

Retired Supreme Court justice John Major, now with Bennett Jones LLP in Calgary, comes close in the debate over Godin’s bill to Hnatyshyn’s point of view, although he hasn’t expressed it in the same legal context.

“The problem is that when you start moving west of Toronto, as you move towards Vancouver, you’re not going to find many people that can meet that standard,” he tells Law Times.

Major and others point out the same can be said in Quebec where, although highly competent advocates and judges may abound in the Montreal region, top-calibre nominees from elsewhere might find themselves excluded.

“It just infuriates me how simplistic this argument is,” says Major. “When you get into selecting judges, I think the prime minister should really have a free hand and concentrate on competency.”

On the current bench, Major notes, all but Justice Marshall Rothstein are fluent in both languages or are able to understand, or have conversations in, English and French.

  • \"Point Final\"

    I don’t even think this should be an argument! Every supreme court judge should be fully bi-lingual “point final” … just like every Prime Minister and Governor General! It is a skill required of the job! You want job then you must meet the requirements! Eventually even the Albertan-cowboys will start learning it! Believe me French is not that hard to learn!

    It is obvious that most people on this forum have nooooo idea how the rest of the first world countries work (I refer to European ones); and I think that Canada should strive to keep its self on par with other respectable countries.

    In my opinion France is far more bilingual than Canada!!! Just an example … Here in France every political science university student is fully bilingual (if not tri)! That means that every newly formed judge here is also bilingual! They are required to spend one year in a foreign country or else for-fit their diploma. Virtually everyone chooses an Anglophone country.

    In French engineering schools (like mine) most students are tri-lingual. Everyone must take English and a third language (German or Spanish). Everyone must do a work placement in a foreign country. And guess what if you don’t get 800 points on your English test you … don’t get your diploma! Try that on for size!

    Times change and always need to change too! Welcome to a bilingual country and the 21 century! If you can handle it don't do it! "Point Final"
  • s.133

    If the Court (the Judiciary) is a branch of Government and Government as a whole has a duty to offer services in both official languages, how can a SCC judge invoke his/her constitutional right under s. 133 to hear cases/appeals in the language of his/her choice? Come on, let's be serious...enough with the legal fictions.

    If s.133 does give the Justices such a right, then all of the "bilingual" Justices could decide that they will hear cases in English (or French) only.....this interpretation does not make any sense and is out of touch with reality.

    In my opinion, the constitutional right in question belongs to the litigants not the Judges.

    If as a matter of policy the Government wants to appoint "bilingual" Judges, so be it....but let's not misconstrue the Constitution to give Judges a shield to avoid their responsibilities
  • SCC bilingualism

    The numbers of deserving judges and lawyers for SCC consideration in many parts of Canada including BC, Prairies and parts of Atlantic Canada are not high (don't kid yourself here). Nor are the numbers who are really that bilingual. The number who are both deserving and bilingual is small enough to be unduly restrictive. I am fairly bilingual and know the standard for bilingualism is not as high as you think.

    Some people obviously don't care about these facts on the ground; and don't mind a real SCC candidate pool nearing the single digits.

    If a few of the judges, and never a majority at the SCC, need to use interpretation, it does not matter that much (don't kid yourself here either). Many of those who are supposedly bilingual are not as bilingual as a trained legal interpreter. The oral presentation does not matter as much as the written and the written submissions can be translated very well. Judges can learn more of their second language on the job.

    People's exact right to be heard in the language of their choice is largely at trial; and then again in an appellate court. This makes it much less necessary to have it for all judges of the last and final appeal. There is certainly no right to an appeal in the SCC. All litigants getting there should consider themselves lucky; most people never get to be heard in that court as leave is not often granted. It seems to be an unreasonable requirement to impose on all the judges of any level of court. The SCC can and does decide many things with panels of 5 or 7 and only uses 9 for particular cases.

    That said, I do not buy anyone's constitutional right to be appointed despite their lack of bilingualism. If we want to make it a job requirement, I don't see a constitutional argument that we cannot. No one has a right to be a judge in any case (as much as they might think otherwise).
  • Dennis
    There is an interesting analysis in this week's edition of McLean's Magazine of the supposed increase in "efficiency" in running trials at the Supreme Court if this law is passed.
  • Judicial Corruption

    Better courts?

    Though much of the heavy lifting in giving direction to Canadian society in the last 3 decades is mostly done by courts not the parliament yet the credit for existing corruption in judicial appointments goes to politicians taking advantage of the confusion that lingers in constitution (Colonial document BNA Act) on points like age, language and tenure etc. to place their stuges in courts.

    And the end to this political corrution/game is not in sight - not in near future.

    I think it's time for learned legal community to grab this nation by the horn and place maritoriam on political optics tempering with existing system before they fix existing curves in constitution.

    To allow quacks to play with future/fire can be suicidal.
  • fair access to the Bench

    John G
    What Dave ignores about Mr Hnatyshyn's argument was his point about the court usually sitting with all its members. The lower courts can select from among its members the one or the three with the appropriate language ability. The SCC usually cannot.

    We are talking about a very high level of language ability here, recall - not just conversational - to appreciate the finer points of legal argument. Lots of very competent francophones outside Montreal may not be at that level or have any real opportunity to achieve it, and ditto for anglophones farther than 500 miles from Quebec, except in a few known communities.

    And one has to use it or one loses it. one has to work to use one's French in Toronto, much less Calgary or Victoria, or one's English in Quebec or Chicoutimi.

    The bill is a bad idea based entirely on political optics and not for a moment on what will produce a better Court.
  • Dave
    Of course, one can argue that there's a difference between the two cases, but it's hard to see how that difference is related to the wording of s. 133.

    Even in the lower courts, the government is subject to the necessity of hiring at least some bilingual judges, thereby perhaps "violating" other judges' s. 133 rights. Whether it is violating all the judges' rights or only some would be immaterial if we accept Hnatyshyn's reading of s. 133.

    Let's be honest, though. This is a bit of a far-fetched interpretation of s. 133. If everybody had a right to express themselves in whichever language - both judges and counsel - without either having a duty to understand both languages, then they might not understand each other at all. What good would s. 133 be? This is at odds with the purposive interpretation of language rights taken in R. v. Beaulac.

    If that's not enough, let's take it further. Underlying Hnatyshyn's argument seems to be some idea that, if it is believed a candidate judge might, once appointed, choose to exercise his s. 133 "right", then he also has a right to avoid any negative consequences attached to that choice, such as not being selected for that court.

    Now, what happens if we apply the same principle of not suffering any negative consequences to counsel pleading before the court? Clearly a lawyer who pleads in a language not understood by the judge will suffer consequences. We reach a paradox.

    How can one read s. 133 to say that it is permissible to place counsel at a disadvantage on the basis of their language choice, but that the government is not to subject candidate judges to any negative consequences due to their unilingualism?
  • Unlikely interpretation of s. 133

    The idea that judges have a right to use either language under s. 133 would seem to be contradicted by the fact that accused have the right to a criminal trial in the official language of their choice, and have had it since 1969.

    Also, as mentioned in the article, there is a right to be understood without an interpreter in all federal courts other than the Supreme Court.

    It is difficult to see how the State could have the obligation to appoint bilingual judges in some cases, but be constitutionally barred from selecting judges based on language criteria in other cases.

    Hnatyshyn's view seems to be more a case of political expediency than serious legal argument.
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