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.