Evidence of meeting #63 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 appointment.
A recording is available from Parliament.
12:30 p.m.
Liberal
12:30 p.m.
Professor, As an Individual
Yes, that’s right. However, I would add right away that this is not ideal. That’s what I started with.
Ideally, everyone would have access to information directly, without the help of an intermediary.
12:30 p.m.
Liberal
Paul Lefebvre Liberal Sudbury, ON
You’re telling us that this qualification does not have to be written into the act. If we put it into law, it can be a change to the Supreme Court Act. You think there has to be an amendment to the Constitution to ensure that Supreme Court judges are bilingual. You also said that we have to choose between the Supreme Court Act and the Official Languages Act, and because it can be amended later by Parliament, it is not really worth it.
At the same time, our government, our Prime Minister, said that they want judges to be bilingual. So they are demanding it. This could change in 2019 if another government were elected and did not consider this qualification to be important.
12:30 p.m.
Liberal
Paul Lefebvre Liberal Sudbury, ON
The priority might be to have as many female candidates as men. A new government might want a completely unilingual Supreme Court of Canada, in French or English. The ability of litigants to be heard in their official language would no longer be a priority.
12:30 p.m.
Liberal
12:30 p.m.
NDP
François Choquette NDP Drummond, QC
I appreciate your comments, Mr. Lefebvre. They are very relevant.
Mr. Jutras, thank you very much for being here.
Your arguments are very good, but I disagree with you on the last comments. I agree with all the other ones 100%. I do not share your opinion on certain things, but nothing is perfect.
The problem with political commitment is that a government can make a political commitment, begin to honour it, and change its mind for different reasons at some point. The current government was committed to electoral reform, for example, but it did not follow through. The government was committed to appointing an official languages commissioner in a transparent and impartial process, but that was not the case.
Furthermore, have you given advice to the government on its position?
12:30 p.m.
Professor, As an Individual
Have I personally advised the government?
12:30 p.m.
NDP
François Choquette NDP Drummond, QC
Do you know people who have advised the government on an amendment to the legislation?
12:30 p.m.
Professor, As an Individual
Are you asking me whether I know who has?
12:30 p.m.
NDP
François Choquette NDP Drummond, QC
I ask myself this question and I have previously asked the government where its legal advice came from.
12:30 p.m.
NDP
François Choquette NDP Drummond, QC
I don't either, and that's a big problem. I have asked the question several times already. We do not have a clear legal opinion. I thought you might have given them legal advice.
12:35 p.m.
NDP
François Choquette NDP Drummond, QC
That’s why I’m asking you. That would have helped me understand where the legal opinions come from.
12:35 p.m.
Professor, As an Individual
No.
Look, I do not know who it is, I have no idea. It is probably a Canadian constitutional expert.
I am not an expert. I am a Supreme Court “groupie” rather than an expert on constitutional law. So I would not be consulted on an issue like that.
12:35 p.m.
NDP
François Choquette NDP Drummond, QC
You have not mentioned a reference to the Supreme Court to actually determine whether the appointment of bilingual judges would be constitutional or not.
Is your plan to ask the government to request that the matter be referred to the court?
12:35 p.m.
Professor, As an Individual
It’s a solution, but it may not be a good idea.
A distinction must be made between two things: challenging the appointment of a particular judge is not the same as challenging the legislation that would amend this requirement for appointment through ordinary legislation.
Challenging the appointment of a particular judge—as we saw once in the Nadon case—has been circumvented. The process has been sped up a great deal. Otherwise, it would have had to escalate from the lower court to the Court of Appeal up to the Supreme Court. It would have taken a tremendous amount of time. In that case, the ambiguity of the Supreme Court Act was raised, and the court was asked to provide an opinion on the issue by reference.
Is it a good idea to make a reference? I do not know what the Supreme Court thinks. Clearly, I cannot read the judges’ minds. In my view, a reference to the Supreme Court on matters affecting the Supreme Court puts the Supreme Court in an uncomfortable position.
