The bilingual judges debate: records reveal constitutional quandary

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.

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