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.
