Madam Speaker, I am pleased to rise today to speak to Bill C-203, an act to amend the Supreme Court Act (understanding the official languages).
The purpose of this bill is to ensure that Supreme Court justices are able to understand both of Canada’s official languages, French and English, without the assistance of an interpreter. The bill proposes to amend the Supreme Court Act to make the capacity to understand both official languages an additional statutory requirement for eligibility for appointment to the court.
We believe in the purpose behind Bill C-203. The esteemed judges who serve on Canada’s Supreme Court, a national judicial institution and the highest appellate court in the land, should be functionally bilingual, so that litigants appearing before the court are able to use the official language of their choice. It is how best to achieve that laudable purpose which we are debating today.
Our government made it clear that we would only appoint Supreme Court justices who are functionally bilingual. The Liberal Party electoral platform of 2015 regarding Supreme Court appointments reads as follows, “We will ensure that all those appointed to the Supreme Court are functionally bilingual.”
This commitment is also clearly set out in the mandate letter of the Minister of Justice and Attorney General of Canada. In that letter, the Prime Minister indicated that it was imperative that the process of appointing Supreme Court Justices be transparent, inclusive and accountable to Canadians, and that those appointed to the Supreme Court be functionally bilingual.
What is more, our government publicly reaffirmed this position many times. I would like to emphasize that our commitment to that goal is not simply a matter of words. Our government has taken positive and concrete steps towards achieving that end. Following the Prime Minister's announcement in August 2016, this government established the independent advisory board for Supreme Court of Canada judicial appointments.
The Prime Minister gave that advisory board the mandate to make a list of three to five functionally bilingual candidates and asked it to submit the list for review in order to fill the vacancy left when Justice Cromwell retired.
Furthermore, enacting expeditiously upon the shortlist of potential candidates drawn up by the board, and in consultation with the Minister of Justice, the Prime Minister recommended for appointment to the court Justice Malcolm Rowe. Justice Rowe is not only a highly respected jurist, he is also, we are proud to emphasize, the first judge ever to be appointed from the province of Newfoundland and Labrador. As Justice Rowe demonstrated during his appearance before parliamentarians gathered at the law faculty of the University of Ottawa before he was sworn in, he is evidently functionally bilingual, thereby satisfying our government's selection criteria for this most important position.
This government's policy of appointing functionally bilingual judges to the Supreme Court will ensure in the future that eventually all of the nine judges on the court will be able to understand counsel pleading cases before them in the official language chosen by each party without the aid of an interpreter. To the extent that any of the current justices on the court, who were appointed before the new policy was put in place, are not yet functionally bilingual, I believe that all of the judges are personally committed to learning, achieving, and maintaining fluency in both official languages, and they have language training and resources available to assist them in that regard.
It is a constitutional right for everyone to use either English or French in hearings, pleadings, and any other process before federal courts established by Parliament, including the Supreme Court of Canada. The court makes every effort, as a federal judicial institution, to facilitate and encourage litigants and counsel to use either official language. Our government’s policy will enhance that institutional effort and responsibility by ensuring that, over time, all of the judges of the Court are functionally bilingual.
Indeed, the government intends to consider the place of functional bilingualism in the judicial appointments process more broadly in response to the recommendations of the Commissioner of Official Languages for federally appointed superior court judges. This is something the government will undertake in consultation with the provinces and territories as well as the provincial and territorial bar associations and the courts themselves.
In other words, the composition of the Supreme Court, including the eligibility requirements for appointment, may very well be constitutionally entrenched and thus beyond the reach of legislative measures enacted by Parliament acting alone.
Under the circumstances, to proceed with Bill C-203 at this time, in light of the evident constitutional concerns its enactment would raise, would be, in the government’s respectful view, unwise and ill-advised. If enacted, Bill C-203 would provoke needless controversy and very probably, protracted litigation.
It might also undermine the efforts this government has made, in consultation with this House and its committees, to advance the policy of functional bilingualism to which this government is committed.
I urge all members to support the government’s strategic approach and to take note of its commitment to applying this policy to future appointments. The government's approach will ensure the appointment of functionally bilingual candidates to the Supreme Court.