You ask quite a big question. As you well know, there have been bills in the past that sought to amend the Supreme Court Act precisely to add language requirements when appointing justices. Then the Supreme Court became constitutionally entrenched. The Supreme Court recognized that it was part of our constitutional architecture in the Reference Re Supreme Court Act in 2014. Since then, no further amendments to the Supreme Court Act have been made, because the composition of the Supreme Court is constitutionally entrenched in section 41 of the Constitution Act, 1982.
This bill seeks to extend to the Supreme Court a provision that has existed since 1988 and applies to all federal courts except the Supreme Court. However, this remains an institutional requirement. It says that the Supreme Court should act to ensure that when justices hear a case before it, those justices can hear it without the assistance of an interpreter. It is up to the Supreme Court to comply with this institutional requirement.
With respect to this new requirement, or expansion of the requirement that already exists for other federal courts, we believe that in 2023 the Supreme Court is in a position to do what it may not have been in a position to do in 1988, when an exception was made for it. The justices appointed to the court are currently bilingual. There is no requirement attached to their appointment.
Now let's go back to the appointment of the Governor General. The Governor General is appointed by the Queen, or rather the King now, just as the Lieutenant Governor is appointed by the Governor General. The office of Queen or King, as well as the office of Governor General, are protected under section 41 of the Constitution Act, 1982. This makes it very difficult for Parliament to claim the power to add conditions of appointment.
The appointment of the Governor General falls under the royal prerogative, and the appointment of the Lieutenant Governor falls under section 58 of the Constitution Act, 1867.