Law Times

PAGE 2 NEWS The bilingual judges debate: Records reveal constitutional quandary BY TIM NAUMETZ For Law Times OTTAWA — There has been plenty of political rhetoric in the public debate over a back- bench MP's bill proposing to legislate compulsory and per- fect bilingualism on the Su- preme Court of Canada. But so far, the debate has featured few hard legal points from either side. Deep in the annals of Parlia- ment, however, lies the answer to at least one question that puzzles some of the debaters. Why did Parliament write in an exclusion for the Supreme Court when it passed a law amending the Official Lan- guages Act in 1988 requiring "every federal court" to ensure judges hearing cases could un- derstand the official language chosen by the parties? Like NDP MP Yvon Go- din's bill proposing to legislate a bilingualism requirement on the Supreme Court bench, the 1988 amendment enforced bilingual judicial availability to such a degree that inter- preters weren't an option. The reason for the top court exemption, according to evidence from the House of Commons justice commit- tee that studied the amending bill from March to June that year, is a mix of politics and law. But it was primarily an is- sue of law, it would seem, from then-justice minister Ramon Hnatyshyn's point of view. Hnatyshyn, who went on to serve a term as governor general, told the committee such a high threshold would likely violate the constitu- tional rights of some candi- dates for nomination to the Supreme Court under s. 133 of the Constitution Act, an 1867 British North America Act clause partly rolled into the NDP MP Yvon Godin generated heat- ed debate in legal circles through his proposal to require bilingual judges at the Supreme Court. Charter of Rights and Free- doms in 1982 that stated that "either of those [English or French] languages may be used by a person or in any plead- ing or process in or issuing from any court of Canada es- tablished under this act, and in or from all or any of the courts of Quebec." The wording, Hnatyshyn told the committee, had been interpreted to mean that judges, as well as parties, "en- joy the right to choose their preferred language" under the Constitution Act. "I do not think we can fetter the right of individual judges but we can impose an administrative duty upon a court to provide for the hear- ing of litigants in their own language." Hnatyshyn also addressed the unique character and practice of the Supreme Court, where all nine judges sit for important cases that are bound to be landmarks. In the Federal Court trial divi- sion, only one judge presides, while at the appeals level pan- els of three justices allow the court to meet official language requirements. Politics had entered the pic- ture the previous year, when then-prime minister Brian Mulroney convinced all 10 pre- miers to sign on to the ill-fated Meech Lake constitutional accord. Among other conces- sions Mulroney made to obtain Quebec's support for the 1982 Constitution Act was an allow- ance that the provinces would nominate candidates to the Supreme Court bench. The ac- cord would also have enshrined Quebec's statutory provision for three Supreme Court judges in the Constitution. "So what we are saying then under our new regime is that there will be a nomination from each of the regions with respect to members of the court, and this would limit the candi- dates that may be proposed by, say, the province of Quebec," Hnatyshyn said. "It seems to me that this [exclusion of the Supreme Court in the bill] is fair and reasonable." Hnatyshyn didn't point it out at that hearing but he could have said the same thing about provincial nominations from the western provinces or Atlantic Canada. "It could be argued, I think, that by having a requirement that judges on the Supreme Court of Canada be bilingual, this would negatively affect the right of a judge in Canada to be a member of the court and to use their own preferred of- ficial language," he told the committee, whose members included Robert Layton, father of current NDP Leader Jack Layton. Retired Supreme Court justice John Major, now with Bennett Jones LLP in Calgary, comes close in the debate over Godin's bill to Hnatyshyn's point of view, although he hasn't expressed it in the same legal context. "The problem is that when you start moving west of To- ronto, as you move towards Vancouver, you're not going to find many people that can meet that standard," he tells Law Times. Major and others point out the same can be said in Quebec where, although highly competent advocates Labour Spectrum is Canada's leading labour law online research service. With expert commentary (including and by Adams) fully integrated with links to Labour Arbitration Cases (LAC's), tribunal decisions, unreported decisions and relevant legislation, it's obvious why labour arbitration and labour law professionals have made Labour Spectrum their number one choice for online research. No other online service offers you this advantage. Labour Spectrum_Cheating (LT 1-2x4).indd 1 www.lawtimesnews.com canadalawbook.ca 5/5/10 11:50:27 AM and judges may abound in the Montreal region, top-calibre nominees from elsewhere might find themselves excluded. "It just infuriates me how simplistic this argument is," says Major. "When you get into selecting judges, I think the prime minister should re- ally have a free hand and con- centrate on competency." On the current bench, Major notes, all but Justice Marshall Rothstein are fluent in both languages or are able to under- stand, or have conversations in, English and French. LT May 10, 2010 • Law TiMes Canadian Labour Law Brown & Beatty

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