Official Languages Committee on March 7th, 2017

[Prof. Sébastien Grammond]

It's undoubtedly the closest example to a bilingualism requirement for Supreme Court judges.

[François Choquette, NDP, Drummond, QC]

If we take into account the Official Languages Act and understand the federal court obligations, don't we have the right, according to the Constitution and the charter, to have access to judges who understand our arguments?

[Prof. Sébastien Grammond]

That's another issue. In the text that I published, I didn't consider the issue from a constitutional rights perspective. In the current situation, as a result of decisions rendered by the Supreme Court in 1986, there's no constitutional right to be heard by a judge without the help of an interpreter. The decision was controversial at the time. However, at this point, it hasn't been overturned. That's why I'm presenting the argument mainly from a public policy perspective, rather than a constitutional rights perspective.

[François Choquette, NDP, Drummond, QC]

Have you had the chance to consider which legislation would be the best to amend to make sure bilingual judges are appointed to the Supreme Court?

Is it the Judges Act, Official Languages Act or Supreme Court Act?

[Prof. Sébastien Grammond]

I think it's the Supreme Court Act, which lists the eligibility requirements for the Supreme Court. It may be the Judges Act, but I don't see why a provision concerning only the Supreme Court would be included that act. That said, either case would be possible.

Regarding the Official Languages Act, I imagine you're referring to the amendment—section 16, I believe—that exempts the Supreme Court from the person being tried's right to be heard in their language by a court created by Parliament. It would be a possibility, but it could lead to the following situation. If a court judge doesn't hear cases in French, the judge wouldn't be able to hear cases from Quebec, including constitutional cases argued by a francophone party. This may be undesirable, in the sense that, for the parties arguing before the court, the door could be opened to strategic choices related to the language used. The parties could see an opportunity to control which judges hear their case. This is undesirable.

[François Choquette, NDP, Drummond, QC]

Thank you.

[The Chair, Liberal, Denis Paradis]

Thank you.

Mr. Vandal, you have the floor.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Thank you.

Mr. Grammond, I understand that a self-assessment is used to assess the language skills of Supreme Court judges. However, there's also the possibility of having them undergo an objective assessment to determine whether they're functionally bilingual.

[Prof. Sébastien Grammond]

Exactly.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Do you know what constitutes an objective assessment?

Do you know whether this process is used frequently?

[Prof. Sébastien Grammond]

I don't know what process the Commissioner for Federal Judicial Affairs used. I also don't know what level was required. I would have trouble commenting on the topic. I know that there are standardized forms of language tests and that various levels are identified as part of the language skills assessment. However, I don't know what the Commissioner for Federal Judicial Affairs used for the process last summer.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Does the self-assessment consist of the survey mentioned by Mr. Généreux?

[Prof. Sébastien Grammond]

I think so. At that point, the candidate says he's bilingual. Based on the information he submits to support his statement, the people reviewing his appointment can say whether they're satisfied.

I gave the example of a person who has degrees from a francophone university and an anglophone university. There's also the example of a person who, as everyone knows, argues in both English and French before the courts, or the example of a federal court judge who regularly hears cases in both languages. In these instances, I don't think it would be necessary to give the person in question a language test.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

What does “functionally bilingual” mean?

[Prof. Sébastien Grammond]

My own definition relates to the goal of this requirement. Francophone lawyers must be confident that they are understood in their language, both orally and in writing. I think it's called “passive” bilingualism. It means that people don't need to be able to have a detailed conversation, but they must fully understand everything said and written.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Do you have statistics or reports on the past 30 years, since the 1980s?

What is the percentage of bilingual Supreme Court judges?

[Prof. Sébastien Grammond]

I don't know the percentage. However, I think it can be fairly easily calculated, because currently one judge isn't bilingual.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Right now?

[Prof. Sébastien Grammond]

Yes. One judge isn't bilingual. There were two from 2011 to 2015, and before that, there was one from 2006 to 2011.

In recent decades, seven or eight Supreme Court judges have been bilingual.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Are there examples of unilingual judges who became bilingual?

[Prof. Sébastien Grammond]

It's sometimes said that the current chief justice wasn't bilingual when she was appointed to the Supreme Court, but that she has acquired the skill since then. I don't know whether she took tests and I can't say more. However, yes, there have been cases of that nature.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

What would you say to the Assembly of First Nations, who would say that they would like a first nation judge, and we're never going to get one if—

[Prof. Sébastien Grammond]

This is a very important consideration. Now, I think the assumption behind the question is that aboriginal persons do not speak French. This is an assumption that is not borne out in many cases. I would say, without going to much into detail, that several of the names of first nations individuals or aboriginal individuals who were mentioned as potential candidates for the Supreme Court are indeed bilingual.

I have great sympathy for the idea that one day there should be an aboriginal judge on the Supreme Court of Canada. I don't think the requirement of bilingualism precludes such an appointment.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

We have many Métis from Manitoba who are very bilingual.

[Prof. Sébastien Grammond]

That's a very good example.