Thank you very much.
Evidence of meeting #60 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 bilingual.
A recording is available from Parliament.
Evidence of meeting #60 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 bilingual.
A recording is available from Parliament.
11:50 a.m.
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
I just have one last question, if I may, Mr. Chair.
Justice LeBlanc, you said earlier that we should be talking about language proficiency, rather than bilingual proficiency. You differentiated between the two. Would you mind explaining the difference, quickly?
11:55 a.m.
Judge responsible for the Program, Legal Language Education Program, KortoJura
I think it's easy for someone to call themselves bilingual. Take, for example, a judge who is doing some shopping over at the Rideau Centre; they might consider themselves bilingual if they are able to converse with the sales clerk or someone else and have that person understand them.
Where the distinction comes in is in the courtroom. If the judge doesn't have the language proficiency to be able to communicate in both official languages with the party in question or to make a quick, reasoned and consistent determination after hearing the evidence at a bail hearing, that judge is not bilingual. In that case, we are talking about the judge's language proficiency.
11:55 a.m.
Conservative
11:55 a.m.
Liberal
The Chair Liberal Denis Paradis
Thank you very much, Justice LeBlanc.
On behalf of the committee, I want to thank and commend the four witnesses for the tremendous work they have done. Your presentation was great.
We will now take a quick break. We can use that time to converse quickly with Yvon Godin, if he wouldn't mind coming over.
12:05 p.m.
Liberal
The Chair Liberal Denis Paradis
We now resume our study on the full implementation of the Official Languages Act in the Canadian justice system
We are delighted to have joining us now Benoît Pelletier, a professor at the University of Ottawa Faculty of Law and former minister.
Welcome, Mr. Pelletier.
12:05 p.m.
Prof. Benoît Pelletier Professor, Faculty of Law, University of Ottawa, As an Individual
Thank you.
12:05 p.m.
Liberal
The Chair Liberal Denis Paradis
You will have about 10 minutes for your presentation, after which, we will move into questions and comments from members.
We are all ears.
12:05 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
Thank you, Mr. Chair, for the opportunity to discuss with the committee the bilingualism of Supreme Court judges through a legal lens and, should you wish, a political one as well.
I will be pleased to answer your questions in the official language of your choice, although I'll speak mainly in French. I have prepared a summary of my presentation, which has been sent to you. I would like to thank the clerk of this committee for having asked that this summary be prepared, so that you have my presentation in both official languages. Those who speak English can follow my presentation through the English version of it.
Section 101 of the Constitution Act, 1867 enacted the Supreme Court Act. The provisions of the federal Supreme Court Act are partially entrenched in the Constitution of Canada. That's basically the result of the Reference re Supreme Court Act, an important decision rendered by the court in 2014 and which I'll discuss in more detail later, during the period for questions.
The Constitution Act, 1982 provides that the constitutional amendments regarding the composition of the Supreme Court are subject to paragraph 41(d) of the 1982 Act—section 41 deals with unanimous consent. Other constitutional amendments regarding the Supreme Court of Canada are subject to paragraph 42(1)(d) of this act—the 7/50 formula.
The issue is when an amendment is purely constitutional and when it is not. When the amendment is purely constitutional, we have to apply paragraphs 41(d) and 42(1)(d). When it is not, the amendment can be made by Parliament itself.
The Reference re Supreme Court Act states that the essential features of the Supreme Court are protected under part V of the 1982 Act. These essential features relate to the continued existence of the court; the proper functioning of the court; and the place of the court in Canada's legal and constitutional order.
More specifically, paragraph 41(d) of the 1982 Act deals with subsection 4(1) and sections 5 and 6 of the Supreme Court Act. These sections codify the composition of and eligibility requirements for appointment to the court as they existed in 1982. In other words, the composition of and eligibility requirements for appointment to the court—as codified by subsection 4(1) and sections 5 and 6 of the Supreme Court Act and as they existed in 1982—are covered by paragraph 41(d) of the 1982 Act.
Subsection 4(1) and sections 5 and 6 also cover the continued existence of the court—since abolition would altogether remove the court's composition—the functioning and the legitimacy of the Supreme Court as a general court of appeal for Canada; the jurisdiction and integrity of the court; and the special representation of Quebec on the court. Paragraph 42(1)(d) of the 1982 Act relates to the other essential features of the court but not all the provisions of the Supreme Court of Canada.
The essential features of the court must be understood in light of the role that it had come to play in the Canadian constitutional structure by the time of patriation. These include the court's jurisdiction as the final general court of appeal for Canada, including in matters of constitutional interpretation, and its independence.
Paragraph 42(1)(d) of the Supreme Court Act also includes the proper functioning of the court.
Some provisions of the federal Official Languages Act are quasi-constitutional, as pursuant to section 82 of this act. This is the case of the provisions in part III of the act, entitled “Administration of Justice”. However, the provisions of the Official Languages Act can be unilaterally amended by Parliament, on the condition, among others, that they do not affect an essential feature of the Supreme Court of Canada.
Section 16 of the Official Languages Act requires every federal court other than the Supreme Court to ensure that, if English is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand English, if French is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand French, and if both English and French are the languages chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand both language.
We believe that requiring bilingualism as a selection criterion for Supreme Court judges would not affect the essential features of this court. Indeed, such a requirement would not affect: the continued existence of the court; the proper functioning of the court; the place of the court in Canada's legal and constitutional order; the composition of the court as codified by subsection 4(1) and sections 5 and 6 of the Supreme Court Act and as they existed in 1982; the eligibility requirements for appointment to the court as codified by subsection 4(1) and sections 5 and 6 of the Supreme Court Act and as they existed in 1982; the legitimacy of the court; the competence of the court; the integrity of the court; the role that the court had come to play in the Canadian constitutional structure by the time of patriation; the court's jurisdiction as the final general court of appeal for Canada, including in matters of constitutional interpretation, and its independence.
In conclusion, we believe that the bilingualism of Supreme Court judges can be imposed unilaterally by Parliament, either through an amendment to the Official Languages Act or through some other way.
12:10 p.m.
Liberal
The Chair Liberal Denis Paradis
Thank you very much for your presentation, Mr. Pelletier.
We will begin the first round of questions and comments with Mr. Généreux.
12:10 p.m.
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
Thank you, Mr. Chair.
Mr. Pelletier, welcome.
Clearly, you are in favour of Bill C-203 being passed. In your opinion, should this bill be amended to indicate that judges must be functionally bilingual or maintain its current wording? The government distinguishes between bilingual judges and functionally bilingual judges, since it has begun to appoint judges who consider themselves functionally bilingual. The witnesses we have heard before you, including Justice LeBlanc, talked about language skills rather than bilingualism.
It is hard to be against motherhood and apple pie, but I personally make a distinction between someone who is bilingual and someone who is truly bilingual.
Do you make that distinction?
12:10 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
First of all, I must say that I am in favour of bilingualism being imposed as a condition for the appointment of Supreme Court judges, but beyond that, I am of the opinion that it can be done constitutionally.
12:10 p.m.
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
Are you saying that this condition can be imposed without being enshrined in legislation?
12:10 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
No. It can be done through legislation without being enshrined in the Constitution of Canada.
12:10 p.m.
Conservative
12:10 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
I have relied on the Reference re Supreme Court Act, meaning the 2014 decision of the Supreme Court of Canada.
In that decision, the Supreme Court basically says that the essential features of the Supreme Court are covered by complex constitutional amendment procedures, whether in the composition of the court, the unanimous consent, or the 7/50 formula in the other cases.
It is important to determine whether, by making bilingualism mandatory for Supreme Court justices, we would be changing or affecting an essential feature of the court. After conducting an exhaustive analysis of the Reference re the Supreme Court Act, I concluded that the answer was no. The court provides sufficient information on the essential features of the court for me to be able to reach that conclusion. That is also the reasoning that I have presented in the summary before you.
Basically, the features of the court relate to its continuity, and therefore to its very existence. Would the bilingualism of Supreme Court judges endanger the very existence of the court? No. The essential features include the proper functioning of the court. Would requiring Supreme Court judges to be bilingual compromise the proper functioning of the court? No.
The other essential feature is the court's place in Canada's constitutional and legal order. Would imposing bilingualism on Supreme Court judges affect the Supreme Court's role as a last court of appeal in Canada? Again, the answer is no.
Based on this reference, I conclude that bilingualism can be imposed without the need for a formal constitutional amendment.
12:15 p.m.
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
In that case, can we expect to maintain the representativeness of all the Canadian regions and to draw from a pool of candidates sufficiently bilingual to sit on the Supreme Court, for all the Canadian provinces?
12:15 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
If necessary, a transition period may be provided to enable legal experts to adapt and, in certain cases, simply put, to take French courses.
That being said, if the Prime Minister and the Government of Canada make it very clear that Supreme Court of Canada judges will now have to be bilingual, which will be provided for by an amendment to a piece of legislation, the legal experts will hear and understand the message. My friends are skilled enough, well trained and intelligent to adapt to the new rule, or even to do so fairly quickly.
12:15 p.m.
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
That will be the case for people who aspire to be appointed to the Supreme Court.
12:15 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
Those people will indeed take steps—in the good sense of the word, of course—to get there and to acquire the necessary qualifications to do so. If bilingualism is one, they will understand the need to become bilingual and to have a reason for doing so.
12:15 p.m.
Liberal
12:15 p.m.
Liberal
Linda Lapointe Liberal Rivière-des-Mille-Îles, QC
Thank you, Mr. Chair.
Welcome, Mr. Pelletier. It is a real pleasure to welcome you today. We have previously had the opportunity to sit together in the National Assembly.
Some argue that imposing bilingualism on Supreme Court judges would be impossible, unconstitutional. You have made your points on that.
Do you have any additional arguments to convince those opposed to this imposition?
12:15 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
First, I will tell you about the legal aspect and then the political one.
12:15 p.m.
Professor, Faculty of Law, University of Ottawa, As an Individual
From a legal standpoint, I am 100% sure that it is possible to impose bilingualism on Supreme Court judges without making a formal constitutional amendment. Those who claim otherwise are extremely cautious or are looking for an excuse. In my view, the Reference re Supreme Court Act is sufficiently clear, as I have said, about the idea that bilingualism can be imposed on judges without a complex constitutional amendment.
This can be done by amending the Supreme Court Act, by amending the Official Languages Act, or by passing a new piece of legislation that would deal with this condition of appointment.
From a political standpoint, those who oppose the appointment of bilingual judges to the Supreme Court often find it unfair for anglophone jurists. However, I would say that the greatest injustice is experienced by the litigants themselves. They go to the Quebec Superior Court and the Quebec Court of Appeal in their own language and are faced with a dilemma when they appeal to the Supreme Court of Canada. The dilemma is whether the person is going to speak in French and run the risk of a judge not understanding the subtleties of the arguments, or whether they will instead switch to English.
The litigants are the first victims, in my opinion.