Mr. Speaker, I am pleased to rise today to speak to Bill C-232, An Act to amend the Supreme Court Act (understanding the official languages). This bill would introduce a new requirement for judges appointed to the Supreme Court to understand English and French without the assistance of an interpreter.
The government firmly supports the promotion of English and French in Canadian society. As Canadians, we are proud of our bilingual institutions and especially the Supreme Court of Canada, which plays a fundamental role in our democratic society as the ultimate protector of the values set out in the Canadian Charter of Rights and Freedoms. The government's commitment to ensuring our courts have sufficient linguistic capability to guarantee access to a court in one or the other of the official languages applies to the Supreme Court of Canada as well.
The Governor in Council, on the recommendation of the Prime Minister, makes the appointments to the Supreme Court. The justices in this court must be of the highest calibre. Accordingly, persons with the best legal knowledge and abilities must be chosen to fill the available positions.
The Supreme Court Act provides for the composition of the court and the number of judges. It provides that at least three justices must come from Quebec. The composition of the Supreme Court of Canada reflects regional representation. The rest of the judges appointed come from Ontario, the Atlantic provinces, the prairies and British Columbia. The practice of ensuring regional representation guarantees that the most highly qualified and deserving candidates in the country are appointed to serve on the Supreme Court.
That does not mean, however, that everyone appointed to the court must be bilingual. In fact, the special nature of the Supreme Court as the highest court in the land and the fact that it has only nine judges from the various regions of Canada prompted Parliament to make an exception to the application of subsection 16(1) of the Official Languages Act in 1988. Bill C-232 proposes to circumvent this exception. This would harm regional representation on the court.
The government's position is that the proposed amendments are not needed to guarantee access to the court in one or the other official language. The Supreme Court, as an institution, makes all its services and communications available in both official languages. Anyone appearing before the court has the choice of using English or French, in the presentation of both legal proceedings and arguments. The decisions of the court are also published in both official languages, and this helps establish ever expanding bilingual jurisprudence for all Canadians to consult.
The court shows on an ongoing basis that it is capable of performing its duties at the highest level in both official languages. There is nothing to indicate that the court has provided less than the highest quality legal services Canadians deserve and expect. I would ask hon. members to bear in mind the risk that the passage of this bill represents, especially since no one has implied that the justice meted out by the court is of anything less than the highest quality.
The proposed changes would make bilingualism a prerequisite for appointment. In view of the complexity and great importance of the cases heard by the court, judges must have more than perfect linguistic skills to understand subtle, complex legal arguments based on a profusion of factual evidence. An obligatory requirement like this would limit the pool of qualified candidates from parts of the country where the percentage of judges able to hear cases in both official languages is not as high as in Quebec or New Brunswick, for example.
The government obviously agrees that linguistic skills are a major factor in the process for selecting judges to sit on superior courts, including the Supreme Court. We will continue to give them ample consideration, as we did in our last appointment to the court, Justice Thomas Cromwell, an eminent jurist who is perfectly bilingual, highly qualified, and very worthy.
That being said, the Supreme Court is at the very apex of our legal system, and in view of the important role it plays, the government feels that the overriding factor in the appointment of judges is and must remain merit based on legal excellence and personal aptitude.
Bilingualism is an important factor in the evaluation of candidates, but only one factor among others, including proficiency in the law, sound judgment, work habits, honesty, integrity, a sense of fairness and a social conscience.
We are very aware of the fact that our courts must have sufficient linguistic capacity to provide equal access to justice in French and English.
We should also distinguish between institutional bilingualism, which is historically part of the government’s responsibility to ensure that Canadian citizens are served in both English and French, and individual bilingualism, as advocated in Bill C-232.
At the present time, the Supreme Court, as an institution, provides services of the highest quality in both official languages.
The effect of Bill C-232 would be that linguistic considerations would overshadow the most important consideration of all, merit, by reducing the pool of otherwise highly qualified candidates from parts of the country where there may be fewer lawyers and judges who are capable of handling cases in both official languages.
It is not necessary to run the risk that the merit principle will be pushed aside out of a concern for bilingualism. The court already fully meets its objective of ensuring that Canadians have a right to be judged in the official language of their choice. All court services and communications are provided in both English and French.
All the current judges on the Supreme Court, with one exception, are perfectly proficient in both official languages and able to try cases in either official language without an interpreter. The judges also have the benefit of ongoing language training.
High quality interpretation and translation services are provided during court hearings and all judges are assisted by one or more bilingual employees.
The current requirements of the Supreme Court Act regarding the composition of the Court and the historical practice of regional representation allow us to fulfill our important commitment to legal pluralism, while ensuring that the people of Canada are served by judges who are very distinguished and extremely proficient.
The current court structure has provided Canadians with a solid, independent legal branch that is the envy of free, democratic countries around the world.
The quality of the current members of the Supreme Court of Canada and their commitment to the job demonstrate how seriously the current government and previous administrations have always taken their responsibility to appoint judges to the highest tribunal in the land.
Bilingualism is one important factor in the process for selecting judges. However, it should not be allowed to outweigh the most important factor of all: a candidate’s merit and legal excellence.
For the reasons just outlined, we recommend that the members oppose Bill C-232.