Evidence of meeting #50 for Official Languages in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was judge.
A recording is available from Parliament.
Prof. Sébastien Grammond
It's undoubtedly the closest example to a bilingualism requirement for Supreme Court judges.
NDP
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.
NDP
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.
Liberal
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.
Liberal
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.
Liberal
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.
Liberal
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.
Liberal
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.
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.
Liberal
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.
Liberal
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.
Liberal
Dan Vandal Liberal Saint Boniface—Saint Vital, MB
We have many Métis from Manitoba who are very bilingual.
