Parliament cannot require Supreme Court judges to be bilingual
Sébastien Grammond has published a guest-post over at Administrative Law Matters arguing that Parliament could legislate to prohibit the appointment of Supreme Court judges who are not bilingual. It is a bold and interesting argument, and I greatly admire prof. Grammond as a thinker and advocate. Nonetheless, I am not persuaded. I remain of the view that the Supreme Court’s opinion in Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21,  1 S.C.R. 433, a.k.a. l’affaire Nadon, means that such legislation would be unconstitutional, as I suggested when criticizing that opinion.
To put my cards on the table, I should note that, as I have argued here and here, I believe that such legislation would also be ill-advised. I will let the reader judge whether this belief biases my constitutional analysis. I would also like to make clear that nothing that I say here should be taken as a repudiation of my views on the majority opinion in l’Affaire Nadon, which I continue to regard as very poorly reasoned and most pernicious.
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The reason I say prof. Grammond’s argument is bold is that it seems to directly contradict what the Supreme Court’s majority said in l’affaire Nadon:
Under s. 41(d) [of the Constitution Act, 1982], the unanimous consent of Parliament and all provincial legislatures is required for amendments to the Constitution relating to the “composition of the Supreme Court”. The notion of “composition” refers to ss. 4(1), 5 and 6 of the Supreme Court Act, which codify the composition of and eligibility requirements for appointment to the Supreme Court of Canada as they existed in 1982. By implication, s. 41(d) also protects the continued existence of the Court, since abolition would altogether remove the Court’s composition. [91; emphasis added]
Prof. Grammond acknowledges that “[r]equiring that judges be bilingual is certainly an ‘eligibility requirement,'” so that the opinion of the majority seems to exclude imposing it otherwise than by constitutional amendment. Yet he argues that it would be wrong to read this opinion “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.” Prof. Grammond points to the fact that “the issue of bilingualism was not before the Court,” and suggest that we “understand the reasoning in that case and to see which parts of it can be applied to the issue of bilingualism.”
In effect, prof. Grammond suggests that the Supreme Court did not really mean what it said in the above passage. It would be “curious,” he writes, if “amendments to specific sections of legislation would be prohibited, even though the proposed amendment does not affect a substantial issue.” The constitutionality of amendments to the Supreme Court’s jurisdiction made since 1982 would be called into question. Instead, what the Court really meant was that certain essential characteristics of the Supreme Court are constitutionally entrenched, while others are not. The bargain relative to Québec’s representation on the Court is such a characteristic, and perhaps, more generally, “the Court’s role as guardian of the Constitution.” However, “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),” and Parliament still modify them or add to them, by statute (though of course that statute would not be constitutionally entrenched). In other words, formal constitutional amendment would be necessary only to change those aspects of the constitution
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 [make] fundamental changes to our current political institutions (such as abolishing the Senate or the Supreme Court).
In any event, prof. Grammond adds, Parliament remains free to supplement the eligibility requirements set out in the provisions of the Supreme Court Act to which the majority in l’Affaire Nadon refers, in the same way as it supplemented the requirements set out in sections 97 and 98 of the Constitution Act, 1867 when it provided, in section 3 of the Judges Act, that only lawyers of ten years’ standing can be appointed to the bench.
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Let me start with prof. Grammond’s last point, because I will simply bite this particular bullet. Just because no one ever raised the issue of a rule’s constitutionality doesn’t mean that it is self-evidently constitutional. It might not be, even though no one has any particular reason to argue so. I don’t think that legislative competence can be acquired by adverse possession ― and that may well be the only way Parliament can claim to have validly enacted section 3 of the Judges Act. Nothing in sections 96 to 98 of the Constitution Act, 1867 allows it to do so ― their language confers no legislative authority, in contrast to that of section 100, which mandates Parliament to “fix” the judges’ salaries and pensions. So I don’t think that the existence of section 3 of the Judges Act supports prof. Grammond’s position.
As for the rest of prof. Grammond’s argument, it does not persuade me mostly because of the curious approach it takes to the constitutional text. As with the text of majority opinion in l’affaire Nadon, but with less justification, prof. Grammond seems to suggest that the text of the amending formula of the Constitution Act, 1982, can be more or less ignored, the better to allow us to focus on what really matters ― the intentions of its framers ― or at least those intentions “in respect of which there is cogent evidence.” The usual criticisms of original intentions originalism ― notably, that the intentions of a disparate group are well-night impossible to ascertain even if such a thing exists at all, that a constitution’s framers can have no intentions as to issues not anticipated at the time of the framing, and that there is no reason why private intentions, as opposed to the public and actually enacted constitutional text, should be authoritative at all ― apply here with full force.
We ought, in my view, ask ourselves what the words of the constitutional text actually mean ― not what their authors intended. To ascertain the meaning of paragraph 41(d) of the Constitution Act, 1982, which entrenches “the composition of the Supreme Court of Canada,” we need to inquire into the meaning ― either in 1982 (on an originalist approach) or in 2016 (on a living constitutionalist one) ― of the word “composition.” Now, I’m not sure that it’s obvious that the “composition” of a body such as the Supreme Court includes, or included in 1982, the eligibility criteria for membership in that body, as opposed to the number of members and their provenance. The majority in l’affaire Nadon asserts that it does, without much effort at justifying this assertion. But while this interpretation may be questionable, I do not think that prof. Grammond’s, according to which the term “composition” encompasses some but not all eligibility criteria, is preferable or even tenable, as a textual matter. Thus, in my view, prof. Grammond’s criticism of the Supreme Court for failing to “offer reasons why” the provisions of the Supreme Court Act that it describes as entrenched by paragraph 41(d) “are crucial to the protection of Quebec’s representation” misses the mark. The Court did not have have to say why these provisions are crucial to protecting Québec. It only had to take note of the fact that they set the rules relevant to the Court’s “composition,” as it interpreted that term.
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As I said at the outset, I admire prof. Grammond greatly. I am sorry to disagree with him. However, what I consider to be the flaws in prof. Grammond’s argument reflect an unfortunate tendency among Canadian constitutional lawyers not to pay enough attention to the constitutional text, and to give too much credence to the intentions, real or supposed, of the constitutional framers ― which, ironically, does not go away with, and may well be made easier by, these same lawyers’ purported rejection of originalism. As Benjamin Oliphant and I have argued in our papers on originalism in Canada, we need to give much more serious thought to constitutional interpretation than we tend to do.