Guest Post, Sébastien Grammond: Can Parliament enact a requirement that Supreme Court judges be bilingual?

One could be forgiven for thinking that the Supreme Court settled this question definitively in the following quote from the Reference re Supreme Court Act :

Both the general eligibility requirements for appointment and the specific eligibility requirements for appointment from Quebec are aspects of the composition of the Court.  It follows that any substantive change in relation to those eligibility requirements is an amendment to the Constitution in relation to the composition of the Supreme Court of Canada and triggers the application of Part V of the Constitution Act, 1982.  (para. 105)

Requiring that judges be bilingual is certainly an “eligibility requirement.”  According to the logic of the Court, such requirements would be frozen, so that no additional requirement could be enacted by Parliament acting alone, under section 101 of the Constitution Act, 1867.  But reading the judgment in that way is reading it like a statute, as if the Court expressed a general rule that applies to all cases that come within the usual meaning of the words employed.

I believe that another reading of the Supreme Court Act Reference is available and, indeed, preferable.  That alternative reading pays tribute to the common law method, according to which courts decide the specific issue before them and no more.  Granted, Supreme Court judgments would be of little use if they did not contain statements of more general application, and the Court sometimes decides issues that are not directly before it – in this case, by validating Justice Rothstein’s appointment.  But as we move away from the core issues of a case, the less we can treat the Court’s remarks as if it were statutory language of general application.  This is particularly so as the Supreme Court Act Reference was the Court’s first decision ever dealing squarely with the amending formula.  While that case, together with the Senate Reform Reference, gave useful indications, we do not yet have a general theory of the amending formula.  So we must recognize that the issue of bilingualism was not before the Court in the Supreme Court Act Reference and we must try, according to the common law method, to understand the reasoning in that case and to see which parts of it can be applied to the issue of bilingualism.  This is how we seek to achieve consistency in the case law.

What was the reasoning in the Reference?  One way of understanding the majority’s reasoning is to say that the “Constitution of Canada” encompasses more than the statutes listed in the schedule to the Constitution Act, 1982 and that sections 4(1), 5 and 6 of the Supreme Court Act must now be considered as being part of the Constitution, so they cannot be amended by Parliament acting alone. But that is not how the Court proceeded in the Senate Reform Reference.  And it would lead to the curious situation where amendments to specific sections of legislation would be prohibited, even though the proposed amendment does not affect a substantial issue.  For example, if one adopts this view, it is difficult to escape the conclusion that all the statutory provisions conferring jurisdiction on the Court are now part of the Constitution, with the result that amendments made since 1982 by Parliament would be invalid.

The better view, I think, is that the Court recognized that the amending formula does not only have an enabling function – providing a mechanism for changing parts of the existing constitution or adding new parts – but also a protective function – ensuring that certain existing institutions or rules cannot be fundamentally altered without a constitutional amendment, even though they are not specifically expressed in an existing section of the Constitution.  (The Court did not use those words, but this is in substance what it meant when it rejected Canada’s “empty vessel” argument.)

How, then, does one define the “protected core,” i.e. the particular features of certain institutions or the specific rules that can no longer be changed?  This is a subject that would require much elaboration, but for our purposes we may stick with what the Court said regarding its enabling legislation.  First, the Court decided that section 41(d) has a protective function for essentially two reasons.  The main one is that the framers of the 1982 constitution wanted to protect Quebec’s representation on the Court, thus entrenching the “bargain” that made the creation of the Court possible in 1875. This is a historically situated argument, one that focuses on the specific character of Canada’s political framework. The second reason is more abstract and relates to the Court’s role as guardian of the Constitution; perhaps the Court had in mind something like Roosevelt’s “court-packing plan” of the U.S. Supreme Court in the 1930s.

Having concluded that section 41(d) has a protective function, the Court had to decide what exactly is protected.  At para. 91, the Court resolved this question in a sibylline manner by referring to sections 4(1), 5 and 6 of the Supreme Court Act. Nowhere does the Court offer reasons why those specific sections are crucial to the protection of Quebec’s representation.  In treating this step of its reasoning as being obvious, the Court avoided some difficult issues.  It could say that “Parliament drew a line” that the Court had to respect, instead of explaining why someone in the position of Justice Nadon could not be said to represent Quebec adequately.  Moreover, had it engaged in that kind of reasoning, its legitimacy to define who counts as a genuine Quebecer could have been questioned by the losing side.

Now, unless one adheres to the theory that specific sections of the Supreme Court Act are now formally part of the Constitution of Canada, I would argue that there is no defensible reason why all aspects of composition and eligibility requirements must fall within the constitutionally-protected “core” of the Court’s composition.  The better view is that aspects of the composition or eligibility requirements that do not relate to Quebec’s representation or the protection against abolition or court-packing are not protected by section 41(d).  For example, section 30(1) of the Supreme Court Act surely relates to the composition of the Court, because it provides for the appointment of ad hoc judges in non-Quebec cases.  But it does not relate to Quebec’s representation, and Parliament may amend it, as it did in 2002.

I would argue that the same logic applies to a requirement that the judges of the Court be able to understand both official languages without an interpreter.  Such a requirement does not affect Quebec’s representation on the Court; neither does it amount to abolition of the Court.  It has no relationship whatsoever with the rationales that underlay section 41(d) and that brought the Court to recognize that it had a protective function.  To take another example, a requirement that at least four judges of the Court be women and at least four be men would not fall within the “core” of the Court’s composition protected by section 41(d).

Of course, if Parliament and the provincial legislatures wanted to entrench a requirement of bilingualism (or gender balance) in the Constitution, section 41(d) would apply.  But that simply illustrates that the enabling and protective functions of the amending formula do not have the same scope.  The enabling function applies to whatever Parliament and the provincial legislatures wish to entrench.  The protective function is exceptional; my current view, which would need to be developed more fully, is that it applies only to specific issues in respect of which there is cogent evidence that the framers of the 1982 Constitution intended to freeze the status quo (such as Quebec’s representation on the Court or the structure of the Senate) or to fundamental changes to our current political institutions (such as abolishing the Senate or the Supreme Court).

The same logic would apply to section 42(1)d), which subjects amendments in relation to “the Supreme Court of Canada” to the 7/50 formula.  Again, this may have a protective function, related to the Court’s role as a final court of appeal and the Court’s independence (para. 94).  These are indeed fundamental characteristics of the Court; without them, Canada’s political system would be quite different.  But it would be difficult to suggest that any characteristic of the Supreme Court or any section of the Supreme Court Act is protected against amendment by Parliament.  Requiring bilingualism does not detract from the Court’s role as a final court of appeal and does not jeopardize its independence.

Even if I were wrong, there remains a significant hurdle for those who assert that the Supreme Court Act Reference bars Parliament from legislating a bilingualism requirement.  Simply put, even assuming that the Court “froze” the existing eligibility requirements, there seems to be no obstacle to the enactment of additional requirements.  Take, for instance, the eligibility requirements for superior court judges.  Sections 97 and 98 of the Constitution Act, 1867 require judges to be “from” the bars of their respective provinces.  No mention is made of a minimum duration of membership.  This additional requirement (ten years) is found in section 3 of the Judges Act.  Yet, no one would argue that the Judges Act is an impermissible amendment to sections 97 and 98, which do not contain such a requirement.  Likewise, imposing a statutory requirement of bilingualism would not amend sections 5 and 6 of the Supreme Court Act.

Nevertheless, I recognize that my argument will spark controversy.  Opponents of a legislated requirement of bilingualism have repeatedly asserted that the Supreme Court Act Reference made this impossible and the response has admittedly been slow to come.  The best way to resolve the issue would be for the federal government to refer the question to the Supreme Court.  A new reference would settle not only the issue of Parliament’s power to require bilingualism, but also the validity of numerous amendments made to the Supreme Court Act since 1982.  It would also be an opportunity for the Court to step back from the acrimonious context of the Senate Reform and Supreme Court Act References and provide more clarity on the scope of the protective function of the amending formula.

Sébastien Grammond

(The author acted as counsel for the Canadian Association of Provincial Court Judges and three retired Federal Court of Appeal judges in the Supreme Court Act Reference and for the Fédération des communautés francophones et acadiennes in the Senate Reform Reference.)

This content has been updated on May 13, 2016 at 12:31.