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.
12:20 p.m.
Prof. Sébastien Grammond
For the reasons I provided earlier, I think it's indeed possible.
12:20 p.m.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Okay.
I want you to summarize again what you explained earlier, because I didn't quite catch it.
12:20 p.m.
Prof. Sébastien Grammond
In my view, in the Nadon case, the Supreme Court realized that, when creating the formula for amending the Constitution in 1981-82, the governments in Canada didn't simply say how the Constitution could be amended.
In other words, they didn't simply provide a recipe. They also removed a small area from Parliament's jurisdiction. As a result, once the amending formula was adopted, Parliament could no longer do certain things alone. However, the area is more limited than we think. It must be established based on the goals that the governments at the time, meaning in 1981-82, were pursuing by identifying a certain number of characteristics in sections 41 and 42 of the Constitution Act, 1982. The Supreme Court told us that the goal of paragraph 41(d), the composition of the Supreme Court, is obviously to make sure Quebec is represented on the Supreme Court. The amendments proposed by Parliament at that time—I think they were adopted when the court heard the Nadon case—affected the eligibility requirements that helped determine who was a judge from Quebec and who wasn't. Therefore, the Court said that, in this case, it had touched the so-called limited area, the area that was removed from Parliament's jurisdiction.
My point is that the bilingualism requirement isn't related to Quebec's representation. In practice, the bilingualism requirement will particularly affect judges from outside Quebec, although the reverse is possible. Adding a bilingualism requirement doesn't in any way change Quebec's representation on the Supreme Court, which is protected by paragraph 41(d) of the Constitution.
I think we would give too much leeway to the Supreme Court's decision by saying that we can no longer touch the Supreme Court Act or anything related to sections 4, 5 and 6.
12:25 p.m.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Especially since the Nadon case wasn't the right time at all to study the possibility of having bilingual judges at the Supreme Court of Canada.
12:25 p.m.
Prof. Sébastien Grammond
Indeed.
12:25 p.m.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
It wasn't the right time at all. Do you know of any constitutional experts who agree with you and who have publications that could address this issue?
12:25 p.m.
Prof. Sébastien Grammond
Some people have expressed a contrary opinion, but it's still early. To my knowledge, none of the prominent constitutional experts, including Peter Hogg and Patrick Monahan, have ruled on this issue or expressed an opinion yet. I haven't seen anything from them regarding this issue.
12:25 p.m.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Earlier, you mentioned that you would publish an article in a journal.
12:25 p.m.
Prof. Sébastien Grammond
Yes. The article was submitted to a journal. I'm waiting for the assessments. The process is ongoing.
12:25 p.m.
Prof. Sébastien Grammond
The University of Ottawa's Revue générale de droit.
12:25 p.m.
Liberal
12:25 p.m.
Prof. Sébastien Grammond
I hope the article will be published in June. If it interests you, we can let you know.
12:25 p.m.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
We would appreciate it if you could let the committee know when the article will be published.
12:25 p.m.
Prof. Sébastien Grammond
Okay.
12:25 p.m.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
I know it's in the public domain, but we tend to forget.
12:25 p.m.
Prof. Sébastien Grammond
Okay.
12:25 p.m.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
What level of court has the greatest challenge when it comes to justice in the official languages? It's not all the courts.
12:25 p.m.
Prof. Sébastien Grammond
I would have a hard time commenting on that. I haven't looked at that. I mostly focused on the Supreme Court as a topic of study.
I didn't study this type of challenge in the provincial courts or the superior courts of the different provinces, for example. I suppose that, from the perspective of the person being tried, the important thing is the option of having a trial in their language.
I believe that, in certain provinces, this is still a challenge. However, I won't go further than that it terms of an overall assessment.
12:25 p.m.
NDP
François Choquette NDP Drummond, QC
Thank you, Mr. Grammond, for your explanation. You clearly set out why Supreme Court judges must be bilingual.
You mentioned that the interpretation issue isn't the only thing at stake. I know we focus on interpretation a great deal, but it's not the only aspect. You said so yourself. There's also the fact that many publications, which the judges would need to consult, are available only in French. There are also all the documents submitted as evidence that are in only one of the two official languages. The judges must read and understand the two written languages, because the two languages are equal. They must be able to compare the two languages to interpret things properly.
I know the Liberals, New Democrats and a number of Conservatives, I believe, also think only bilingual judges should be appointed to the Supreme Court. I think it's a fairly common view.
At this time, the difficulty is knowing whether we want legislation on the bilingualism of Supreme Court judges. You mentioned that people say that this could be unconstitutional. I don't have the Nadon decision before me, but I know it clearly states that, as you said, the focus is only on cases of judge eligibility in relation to Quebec. However, all other eligibility requirements remain discretionary. The judges haven't made any decisions on them.
Can you comment on this?
12:30 p.m.
Prof. Sébastien Grammond
In a justice system strongly inspired by common law, court decisions establish laws to the extent necessary to resolve the case before the court.
Obviously, the Supreme Court will make a slightly broader ruling. However, if we respect the philosophy of common law systems, we must still read the decision based on the question asked and the particular context of the question.
As you said, the particular context of the Nadon case is the protection of Quebec's representation on the Supreme Court. The court told us that a historic compromise was reached that helped establish the Supreme Court in 1875. Clearly, the authors of the 1982 Constitution still had this compromise in mind. Essentially, the text gives Quebec a right of veto with regard to its representation on the court.
This shows us the importance of paragraph 41(d). The Nadon decision must be read from this perspective. Obviously, the reasoning doesn't apply when we're no longer talking about Quebec's representation on the court.
12:30 p.m.
NDP
François Choquette NDP Drummond, QC
Thank you. Since time is running out, I'll ask you two or three questions and let you finish.
You referred to cases involving changes in eligibility, such as when the decision was made to admit members of the bar who had 10 years of experience. It's the same type of example as the bilingualism requirement, which some people consider unconstitutional.
Are there other similar examples?
If not, is that a very good example?
