Thank you very much, Mr. Chair.
Good afternoon, everyone.
I am very pleased and very honoured by your invitation to speak to you today on the issue of the bilingualism of Supreme Court of Canada justices, more specifically. I know that you have spent considerable time on this question recently.
As the chair said, I will make a brief presentation of about 10 minutes in French.
I will be happy to answer in English or in French any questions you may have about my presentation. I will, therefore, dive right into what I want to say today.
First, I will give you a succinct summary of my message today.
I apprised myself of your deliberations and comments, as well as the exchanges you had with certain experts. In my opinion, there are three questions involved with regard to the bilingualism of Supreme Court justices.
The first is whether it is desirable that every one of the justices of the Supreme Court of Canada have a sufficient mastery of both official languages. In other words, should an advanced grasp of both languages be part of the eligibility conditions for a nomination to the Supreme Court of Canada? My answer to that question is yes. I think that a requirement for that qualification is very important and probably essential.
If we answer yes to that question, we have to ask ourselves how to achieve that objective. The second question is whether it is desirable to act through legislative means, that is to say by including that requirement in a law or by amending an existing act. Contrary to the experts you have heard until now, I think the answer is no. In my opinion, the political advantages of such an initiative would be less important than the legal risks it would entail. In addition, the formal commitment of the Prime Minister as it stands, the one we know and which was used in the last process, seems sufficient to me to achieve the objective of the bilingualism of Supreme Court justices.
Of course you may disagree with me. If so, you must ask yourself if a legislative proposal, be it a law or an amendment to an existing legislative text, which would impose bilingualism as a prerequisite to a nomination to the Supreme Court of Canada, would constitute a constitutional amendment. If so, this amendment would require the consent of Parliament and provincial legislatures, as you know. To this question—would this be a constitutional amendment if you were to include it in a law?—my answer is again yes, in all probability, and once again contrary to experts you have heard.
Allow me to explain succinctly what I mean by each of these points.
First of all, I think it is desirable that all of the justices of the Supreme Court of Canada have sufficient mastery of both official languages. An advanced level of competence in both official languages should be a part of the required skills to be eligible for a nomination to the Supreme Court of Canada. In order to arrive at that conclusion, you have to understand how the court functions, and the nature of the work of these judges.
Those who testified before you spoke repeatedly about errors that can occur in simultaneous translation or the interpretation of oral presentations made before the court, but that is only one aspect of the question. Many other elements of the work of judges at the Supreme Court of Canada require linguistic competence in French and English. I will mention five quickly; it will give you a clearer idea of what I mean.
First, judges must read and interpret legislative texts that are written in both official languages, and not just any texts: the Criminal Code, the Income Tax Act, the Divorce Act and the Constitution itself. You may say that since these laws are written in both official languages, you only have to understand one of the two versions. But that is false, since all of the rules of interpretation require that you understand both versions in order to be able to determine the meaning of both when there is some ambiguity. It is indispensable that you read both versions.
Secondly, judges must be able to read and understand the decisions of the lower courts that are often drafted in only one language. I do not only mean the decision that is being appealed before the court, but also the relevant jurisprudence which may be written only in French or only in English.
Thirdly, judges must also read and understand the written presentations of the parties and the language they are written in, and not only the oral presentations made at the hearing. As you probably know, those briefs are not translated by the court. A lot of documents are translated within the Supreme Court of Canada, but the briefs presented by the parties are not.
Fourth, there is a more diffuse element that must be taken into account: judges must be able to take part in discussions held at the court on the decision to be rendered. The presence of a unilingual judge will mean that the conversation will probably take place in the language of that judge, practically only in English.
Fifth—and this is also an important point—judges have to be able to understand both versions of the rulings the court itself hands down, in order to be able to assess the quality and accuracy of the translation of the rulings. In short, bilingualism is an absolutely essential component in the work of the judges.
That said, we must admit that the court can function in a fair and effective way even without mandatory bilingualism. It has done so with great success for decades. It works because the translation and interpretation services on the Hill and at the court itself are excellent—these are indeed very talented people—but especially because this is a collegial court. There are nine of them around the table, and the cooperation among the judges allows them to prevent misunderstandings and misapprehensions. This goes on continuously. In my opinion there's no real risk that a ruling will be based on a misunderstanding of French or English. It is very unlikely that will happen. If you wish we can talk about that later.
However, we have to admit that this situation is not optimal. In my opinion, ideally judges should be able to have access to all of the texts, discussions and representations without an intermediary, be it an interpreter, a translator or a researcher. Otherwise the court is forced to make compromises, arrangements. This is not an optimal situation. I would even say that in my opinion, bilingualism is related to operational competence, that is to say to the work performed by the judges, as is their knowledge of the law. We can get back to that later. There will probably be questions on the important symbolic aspect of the presence of both languages and bilingualism in the court.
However, I will go on to my second point.
Once the premise has been established that candidates must be bilingual to be eligible for nomination to the Supreme Court, how can we apply that principle?
I said earlier that it was not desirable to include this in an act, and that the Prime Minister's commitment was sufficient.
In the context of the nomination process for the Supreme Court in the fall of 2016, the Prime Minister formally committed to making bilingualism an essential qualification. We know that that commitment led to the nomination of Judge Rowe, whose knowledge of French is in my opinion amply sufficient to allow him to discharge the responsibilities I have just listed.
What would we gain by including that requirement in a law rather than basing it on the formal commitment of the Prime Minister?
There would first of all be a symbolic gain, which is not negligible. It is a gesture that would emphasize the equal importance of both official languages. There would also be a gain I would describe as strategic, also not negligible, since a law is more difficult to get around than a political commitment. That said, since you are all jurists in a way, you know that an ordinary law can be repudiated, just as a political commitment can, when you are ready to pay the political price that comes with that legislative change.
I question the risk involved in including such a requirement in law, because a law would impose conditions that would determine the legality, in the strict sense of the word, of a nomination. That is probably not the case with a political commitment. However, when a requirement is enshrined in law, one can demand that it be respected.
Consequently, if an act imposes bilingualism as a condition of nomination, any nomination of a justice to the Supreme Court can be challenged before the courts. Someone could in fact allege that that requirement was breached, and claim that the judge is not sufficiently bilingual in his opinion, and that that appointment should be rescinded. I know that this issue concerns you, all the more so because bilingualism is not a binary notion. You are not bilingual or unilingual; you are more or less bilingual. I am very bilingual. Some people are more bilingual than I am, and others are less so. So this is not a criterion that will be easy to manage before the courts, once that principle has been established. We can talk later about how this could be tested. All that said, I think it would not be a very good idea to include this criterion in an act.
Such a challenge would contain a real risk—and there are recent examples—that could be embarrassing for the judiciary, and humiliating for the judge concerned. This risk would be complex and unpredictable on the factual and legal levels, and could as a result weaken the Supreme Court itself. Whenever nominations are challenged, there is a risk that the authority of the court may be weakened.
In a word, in my opinion, the only thing gained by inserting the condition in legislation would be symbolic and, as a strategy, it is not worth it.
Let me conclude with a few words on a more fundamental issue, which brings with it more complicated debates. It is my view, but you may not agree with me and you may go in the opposite direction. You may perhaps want to insert a change containing a bilingualism requirement for the Supreme Court in an ordinary act.
What would happen if you did that? I am firmly convinced that you would not escape a constitutional challenge to that ordinary act. Someone would take the matter to court. They would be seeking to find out whether or not the bilingualism requirement needs a constitutional amendment.
That brings me to my third point. In my opinion, if Parliament chose to pass such a legislative text, it is almost certain that the legislation would be challenged before the courts and, in my opinion, it would probably be overturned. A condition like that probably needs an amendment to the Constitution that requires the agreement, not only of Parliament, but also of all the provinces. Let me explain why, in a few words.
Some experts who have appeared before you have stated—and, with all respect, I was quite shocked by it—that they were 100% certain that this initiative does not require a constitutional amendment. With respect, I do not share that opinion. Certainty here is out of reach. The case law on constitutional amendments is in its infancy. I feel that we are not able to state with certainty that an amendment is not required.
The concern I am expressing to you does not come from an excess of prudence, or from trepidation, as one of the experts said, or from an excuse to oppose bilingualism, which, I have to say, I think is desirable at the Supreme Court. In fact, there are specific, solid reasons to believe that a change of that kind cannot be made without the agreements I have just mentioned.
It is all very simple: the Constitution has an amending formula. For our purposes, one of the important texts is paragraph 41(d) of the Constitution Act, 1982. This reads that amending the Constitution in relation to the composition of the Supreme Court requires the agreement of Parliament and of all the provinces. So we have to ask ourselves what the composition of the Supreme Court means.
It turns out that we already have a ruling on that issue. It comes from the reference to the Supreme Court on what we call the Nadon case. I am quoting paragraph 105 of that ruling. This issue is to determine what the composition of the court is and whether it needs the unanimous support of Parliament and the provinces. What is the composition of the court? It reads like this:
Both the general eligibility requirements for appointment and the specific eligibility requirements for appointment from Quebec are aspects of the composition of the Court.
It cannot get any clearer than that. To say that a constitutional amendment is not required in order to achieve the objective we are talking about this morning, we have to ignore that language or, in all cases, interpret it in such a way that the important aspects are removed. The court continues:
It follows that any substantive change in relation to those eligibility requirements is an amendment to the Constitution in relation to the composition of the Supreme Court of Canada and triggers the application of Part V of the Constitution Act, 1982.
That means the rule of unanimous consent.
I am not going to go too much further because I want to leave you a lot of time for questions. Nevertheless, I feel that Sébastien Grammond made an interesting argument that quite significantly restricts what we must understand by the terms and language of the Supreme Court here. I would say that, despite everything, the opinion of the court contains no restriction to the qualifications. So it is certain that the legislation would be challenged on the basis of the text I have just read.
What is a substantive change to the eligibility requirements for appointment? In my opinion, the general conditions for appointment are already in sections 4, 5 and 6 of the Supreme Court Act—being a judge or a barrister for 10 years, and the specific conditions for the judges from Quebec. They are clearly enshrined. Bilingualism is not one of them.
In closing, I would add two things. First, adding conditions can be an amendment. Just because it is an addition and not a removal does not make it any less of an amendment to the eligibility conditions for appointment. Clearly, if you wanted, for example, to remove the requirement to have three judges from Quebec on the court, you would need a constitutional amendment because you would have removed an eligibility condition.
However, if you were to decide, in the interests of gender equality on the Supreme Court bench, to require a minimum of four female judges and four male judges, you would be looking, in my opinion, at a major amendment to the composition of the Supreme Court and it would require the amendment process I was talking about.
So it is important to see that adding words or terms possibly constitutes an amendment that would require the support of the feds and the provinces.
I would add—and this is the final point I wanted to emphasize—that there is something paradoxical in stating that a constitutional amendment is not required. What is driving the desire to include a bilingualism requirement in the text of the legislation is the importance of bilingualism for the legitimacy of the court, its political integrity, and its ability to function.
We cannot say that is absolutely fundamental for Supreme Court justices to be bilingual and then, at the same time, say that it is not a major change to the composition of the Supreme Court. I don't think those two arguments can be made at the same time.
Basically, I feel that it is essential to require bilingualism. I feel that it can be done perfectly well by political commitment, such as we are seeing at the moment, but it seems dangerous to do it by legislation for the reasons I have described. I think that what we have here is the same thing that was worrying Montesquieu when he wrote, “the best is the mortal enemy of the good”.
Leave well enough alone.
And I feel that it will be better for everyone.
Thank you.
