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Legislating a bilingual Supreme Court?

The odds are it won't happen anytime soon.

Person holding up hand

Yvon Godin’s private member’s bill to make bilingualism mandatory for judges appointed to the country’s top court was easily defeated by a conservative majority in Parliament earlier this month.  But would the bill even stand a chance to become law if Godin’s party, the NDP, were to form government?

Not that his party wouldn’t support the Acadie-Bathurst MP who has been driving much of the Supreme Court bilingualism debate for the last six years.  The NDP’s plan would amend the Supreme Court Act to require that justices appointed to the court have at least a basic understanding of French — good enough that they don’t need a translator. 

But following the Supreme Court of Canada’s recent affirmation of constitutional independence in l’affaire Nadon, any law restricting future Supreme Court appointments to bilingual candidates would likely invite a constitutional challenge — and quite possibly a successful one at that.

Constitutional experts are warning that the Supreme Court Act Reference has made one thing abundantly clear: To change who can sit on the top bench, the provinces will need to sign-off.

Emmett Macfarlane, an assistant professor at the University of Waterloo and author of Governing from the Bench: The Supreme Court of Canada and the Judicial Role, says the ruling is clear: Any efforts to reform the eligibility of the Supreme Court will require unanimous consent from the provinces.

“That would certainly include the attempt to include mandatory bilingualism, which would be a major departure from past practice,” says Macfarlane. “It would have major practical effects on the pool of candidates, particularly from the Western provinces.”

Lynne Watt, a partner in Gowlings’ Ottawa office, sees some grey area, but broadly agrees that bilingualism may be well outside the unilateral power of Parliament. “I could hear an argument being made that it unreasonably narrows the pool of candidates, and that’s trenching on the composition of the court,” she says.

The Nadon reference appears to bear that out. “Any substantive change in relation to those eligibility requirements is an amendment to the Constitution in relation to the composition of the Supreme Court and triggers the application of Part V,” wrote Chief Justice Beverley McLachlin, writing for the majority.

That, coupled with the Senate reference and a general lack of enthusiasm for constitutional reform, means that we’re unlikely to see bilingualism become an essential eligibility requirement for appointment to the top court in the near future.

But while the NDP’s attempt to set some language requirements for the judges might be ill-fated, it raises an interesting question as to just what Parliament can do to reform the Supreme Court.

The reference ruling goes on to say that changes to the “essential features” of the court requires the consent of seven provinces representing at least half the population. In that sense, “essential features” is taken to include “at the very least, the Court’s jurisdiction as the final general court of appeal for Canada, including in matters of constitutional interpretation, and its independence.”

With the fallout of the Nadon appointment looming large, some are wondering if there is an alternative route to introducing informal criteria to the appointment process. However, the ruling — somewhat ironically — sets out just how difficult that might be. But not impossible.

When the Constitution Act, 1982 was adopted, says Macfarlane, there was agreement that the court should continue to be composed of nine judges, three of whom must come from Quebec. “Beyond that, anything else was up for debate,” he says. “The court has now said that the eligibility requirements themselves, the criteria, are constitutionally entrenched,” says Macfarlane. “Does that extend to all aspects of the appointment process? I don't think so.”

Watt says the line to walk is a thin one, but it’s feasible — so long as the reformed process doesn’t affect those essential features.

“I don’t think that there would be any impediment to changing the process or getting consultations behind the scenes so long as it didn’t change the requirements or ability to have discretion to follow those requirements in [the Supreme Court Act],” says Watt.

But she notes that the top court has been weary of the government trying to skirt the question of discretion.

“You’d have to read the Nadon reference and the Senate reference side-by-side,” she says. If Ottawa can’t call provincial Senate elections “consultative,” she says, then Parliament may not be able to do too much with the process around how it selects judges.

“The court raised its eyebrow, judicially, on the suggestion that sort of thing wouldn’t be binding,” she says.

A mechanism could be found, says Macfarlane, provided it isn’t too “drastic.” Anything that removes the prime minister’s discretion, and hands it to someone else would probably require constitutional amendment,” he says, adding that an informal change in the selection process is likely to survive a challenge.

The current process, established by Stephen Harper in 2006 consists of a series of consultations that feeds into a long list of eligible candidates. From there, the government and opposition pare down that list in a secret committee and the prime minister ultimately settles on an appointee.

It’s a process that has its share of critics. “The opposition has risked legitimating this opaque process by taking part in this committee where, not only are we not allowed to know what the substantive discussions were, but we’re not even allowed to know how they voted, or whether they were unanimous. This is an absurd process. Their participation gives it a stamp of all party consensus, all party approval. And look what happened with this appointment,” says Macfarlane. The opposition, he says, should avoid participating in the current selection process until something better comes along.

As for the bilingualism debate, it’s still worth considering the merits of whether mandatory bilingualism at the time of appointment is good policy. Over the years the CBA has stressed the importance of achieving and maintaining institutional bilingualism and the right of litigants to be heard by judges who can understand them in the official language of their choice. Though it views a Supreme Court of Canada composed of judges who understand both official languages as ideal, it has taken the position that an inability to understand both languages at the time of appointment should not be a bar to appointment. 

It’s a position that has the merit of not raising a constitutional violation.