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.
Liberal
Linda Lapointe Liberal Rivière-des-Mille-Îles, QC
You talk about the injustice to those who speak English, but I think francophones also experience injustice.
Professor, Faculty of Law, University of Ottawa, As an Individual
There is an injustice to francophones who, in many cases, are exposed to the English language and hear cases in French and English. I am thinking of some bilingual judges who hear cases in both languages.
However, the greatest injustice is experienced by the litigants, in my opinion. This argument has already been raised—I am not the first one to do so—but I think it deserves to be reiterated over and over again.
Liberal
Linda Lapointe Liberal Rivière-des-Mille-Îles, QC
Thank you very much.
Earlier, we talked about judges. If we were to impose bilingualism through an amendment to the Official Languages Act or a new piece of legislation, how long do you think it would take current judges to become bilingual?
Professor, Faculty of Law, University of Ottawa, As an Individual
If they show a lot of determination, I think they can acquire an adequate knowledge of French and understand cases within a few months.
Liberal
Linda Lapointe Liberal Rivière-des-Mille-Îles, QC
Earlier, representatives from KortoJura said that they were doing simulations. I know that, if you do not practice the second official language, you can very easily lose the proper words. In terms of judges who aspire to be appointed to the Supreme Court and who understand only one language, how can they successfully acquire knowledge of the second language to become Supreme Court judges?
Professor, Faculty of Law, University of Ottawa, As an Individual
First of all, it is often a question of personal initiative. A person who really wants to access this position will try to learn French. The person may become even more interested in civil law, while they're at it. We talk a lot about bilingualism, but we could also talk about bijuralism. Let’s just stick to bilingualism for the time being.
This must come from within first of all. Law schools may also make French courses accessible to students. However, it is not possible to isolate a pool of potential candidates if they don't make their ambition public. I think it will basically be personal initiatives, but I hope they will be supported by the law schools.
NDP
François Choquette NDP Drummond, QC
Thank you, Mr. Chair.
Mr. Pelletier, thank you for being here today.
As Yvon Godin explained earlier, the Liberals supported the bill on the appointment of bilingual judges to the Supreme Court at the time. The Nadon decision, which you mentioned and which was rendered in 2014, as I recall, sort of changed my colleagues' arguments. Now they say that an amendment to the Supreme Court Act may require a constitutional amendment.
A few weeks ago or a few months ago, we received another expert, Sébastien Grammond. I'm not sure whether you have had the opportunity to hear or read his testimony, or whether you are at all familiar with his opinion. He pretty much told us the same thing as you, that you need to make a distinction between essential and non-essential criteria for judges. To the best of your knowledge, what is the argument of those who believe that such a change would be unconstitutional?
Professor, Faculty of Law, University of Ottawa, As an Individual
The Reference re Supreme Court Act is actually about the Nadon decision. I reiterate that, in that decision, the Supreme Court said that the essential features of the court were subject to a complex constitutional amendment procedure.
The issue is figuring out what the essential features of the court are. That is why I listed a series of essential features of the court in the summary of my presentation.
NDP
François Choquette NDP Drummond, QC
It's a very good description, by the way. Thank you very much for doing that.
Professor, Faculty of Law, University of Ottawa, As an Individual
Thank you.
I don't think the appointment of bilingual judges to the Supreme Court of Canada affects one of its essential features. I am actually sure it does not.
As long as an essential feature is not affected, Parliament may amend the Supreme Court Act. I repeat: as long as an essential feature is not affected.
In the case at hand, bilingualism could be imposed through an amendment to the Supreme Court Act. If the Government of Canada has any fears that it is illegal, it can always refer the matter to the Supreme Court and ask the question head on. However, this can also be done through an amendment to the Official Languages Act, in which case section 16 of the act would apply to the Supreme Court judges as well as to other judges of the federal courts. This can also be done by passing a new piece of legislation, albeit a scenario that seems less likely, but nevertheless theoretically possible. This would be done by passing new legislation that would provide for the appointment of bilingual judges to the Supreme Court of Canada.
The question is figuring out what we mean by “bilingual” judges.
François Choquette NDP Drummond, QC
We will be able to find that out. We are fortunate to have people like those from KortoJura, who can conduct evaluations.
Professor, Faculty of Law, University of Ottawa, As an Individual
There you go.
NDP
François Choquette NDP Drummond, QC
You are right, Supreme Court judges must absolutely be evaluated, as should those in superior courts, who evaluate themselves. I am one who believes that there should be a language competency evaluation. Judges appointed to the Supreme Court should also have to be evaluated.
Mr. Grammond, who is an expert, said the same thing as you. You are both experts and you tell us that you are persuaded that it is not an essential condition and that, as a result, we can change the conditions, by some legal process or other.
That is important because, until now, we have heard no constitutional expert who is able to tell us why it would be unconstitutional. Everyone reminds us of the Nadon decision but, in the Nadon decision, it was never said that a language competency evaluation would be unconstitutional. You have told us why that is the case and we really appreciate it.
What I could add about the Supreme Court judges is in connection with the bill. As you mentioned, there is more than one way to proceed.
The conclusion of your presentation is really relevant. Let me read it: “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.” That is clear.
You do not see an argument that could be made to state that the act would be unconstitutional. To your knowledge, there are no arguments to support that.
Professor, Faculty of Law, University of Ottawa, As an Individual
No, but let me add an important nuance.
In the Reference re Supreme Court Act, it says that the composition of the court is part of its essential features, just like the appointment conditions. The court specifies that the appointment conditions are those codified by subsection 4(1) and sections 5 and 6 of the Supreme Court Act. That is where there may be an ambiguity, leading some to react with extreme caution by saying that the essential features of the court would be affected.
Professor, Faculty of Law, University of Ottawa, As an Individual
No. Subsection 4(1) and sections 5 and 6 of the Supreme Court Act do not deal with the bilingualism of judges or other qualification criteria, but rather the composition of the court. They indicate there that it is made up of nine judges and three of them must come from Quebec. They describe appointment conditions in general.
NDP
Professor, Faculty of Law, University of Ottawa, As an Individual
You've got it.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Thank you, Mr. Chair.
Mr. Pelletier, I am going to continue along the same lines as Mr. Choquette, but before that, I want to thank you for giving us the benefit of your knowledge, the fruit of your research, and your understanding of the entire Nadon affair.
I’m going back to the Constitution Act, 1982, but I don’t want to make you repeat what you have just told us in different words.
Paragraph 41(d) seems to raise a little concern on the part of some extremely prudent, almost austere, legal experts. The paragraph contains the words “the composition of the Supreme Court”.
Has anyone defined the word “composition” as it appears in paragraph 41(d) of the Constitution Act, 1982?
