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.
Professor, Faculty of Law, University of Ottawa, As an Individual
Yes, the Supreme Court provides us with a definition.
Professor, Faculty of Law, University of Ottawa, As an Individual
Yes. In it, the court specifies the appointment conditions and the composition of the court, as codified by subsection 4(1) and sections 5 and 6 of the Supreme Court Act.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Exactly. That is what my colleague Mr. Choquette was talking about.
Going by what you are telling us today, as long as the composition is not affected, as explained in the Nadon decision and as it appears in subsection 4(1) and sections 5 and 6 of Canada’s Supreme Court Act, there is no need to amend the Constitution to establish a bilingualism requirement for judges on the Supreme Court of Canada or on any other superior court.
Professor, Faculty of Law, University of Ottawa, As an Individual
That's right.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
In subsection 4(1) and sections 5 and 6 of the Supreme Court Act, the meaning of the word “composition” is clear. There is no mention of male/female parity or French/English parity. In my opinion, we should be requiring male/female parity in our courts as soon as we can.
Conservative
Sylvie Boucher Conservative Beauport—Côte-de-Beaupré—Île dOrléans—Charlevoix, QC
But we are talking about bilingualism here.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Yes, but we could use the same argument.
Here is what I want to get out of it, in a nutshell. Right at the outset, you said that your preference is for an amendment to the Official Languages Act, or to some other act. That’s the first act that you would amend. In your opinion, is that the easiest, simplest way?
Professor, Faculty of Law, University of Ottawa, As an Individual
Yes, it is the easiest way and probably the—
Professor, Faculty of Law, University of Ottawa, As an Individual
Yes. It is the one that would raise the fewest legal debates, because the Supreme Court Act would not be affected. Let me repeat: it could be done because no essential feature of the Supreme Court would be affected.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
If we were to amend the Official Languages Act, we would eliminate the exception for the Supreme Court in subsection 16(1) of that act.
Professor, Faculty of Law, University of Ottawa, As an Individual
Yes, exactly.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Here is subsection 16(1) of the Official Languages Act:
Every federal court, other than the Supreme Court of Canada, has the duty to ensure that: (a) …every judge or other officer who hears those proceedings is able to understand English… (b) …every judge or other officer who hears those proceedings is able to understand French…
So, we would drop the words “other than the Supreme Court of Canada”.
Professor, Faculty of Law, University of Ottawa, As an Individual
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
In your opinion, that is the easiest and least aggressive way. It would not irritate the people who claim that you have to amend the Constitution. That is my understanding.
Professor, Faculty of Law, University of Ottawa, As an Individual
Yes, but I would not hesitate to irritate them, by suggesting an amendment to the Supreme Court Act directly. If you wanted to be very clear and say that judges must not only understand French but also be able to speak French, you might have to use other means than section 16, which has its share of ambiguities.
Section 16 says that judges must be able to understand a language; it does not say that judges must be able to speak a language. If we really want to be clear, we could choose to insert a new definition in the Supreme Court Act that would say that judges have to be able to speak in English and French in order to be appointed to the Supreme Court of Canada.
That brings us to the issue of language level. That is the issue you discussed this morning, I understand. I am less qualified in that area.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
That's fine.
I am sorry, but I have neither received nor read the document you provided. I don't have it at hand. Did you propose an amendment to section 16?
Professor, Faculty of Law, University of Ottawa, As an Individual
Yes. At the end, I talk about an amendment to the Official Languages Act or some other act. When I talked about an amendment to the Official Languages Act, the section I had in mind was section 16, yes.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
You did not propose what that might look like, as part of any text.
Professor, Faculty of Law, University of Ottawa, As an Individual
No, because that requires an appreciation of language abilities, which I do not have.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
So we are talking about two things. If we were to amend subsection 16(1), we would have to remove the exception for the Supreme Court, and, in the following subparagraphs, add that judges must be able to speak both languages as well as understand them.
Professor, Faculty of Law, University of Ottawa, As an Individual
If you want, you might make a special provision for the Supreme Court of Canada or a provision that applies to all federal courts. But that mechanism seems a little more complex to me. What you are suggesting—adding something specific for the Supreme Court in section 16—is still a little more complex in terms of the legal drafting.
Liberal
The Chair Liberal Denis Paradis
Thank you very much, Mr. Arseneault.
Mr. Vandal is going to share his time with Mr. Samson.
Mr. Vandal, the floor is yours.
Liberal
Dan Vandal Liberal Saint Boniface—Saint Vital, MB
Thank you, Mr. Chair.
Thank you very much for your presentation, Mr. Pelletier.
I come from Saint Boniface, Manitoba, the indigenous capital of Canada's First Nations and Métis. I do a lot of work with the Manitoba Métis Federation and the Manitoba chiefs tell me that, if Supreme Court candidates must be bilingual, there will never be an Inuit or Métis judge.
Do you have an opinion about that?