A Third View on Legislating Two Languages at the SCC

In the last number of days, Professor Grammond and incoming AUT Law School lecturer (and my very generous blogging host) Léonid Sirota have posted thoughtful analyses of whether Parliament can legislate a requirement that judges of the Supreme Court understand French and English without the assistance of translation. Grammond argues yes; Sirota says no. The two authors differ in their readings of the Supreme Court Act Reference and, specifically, in their interpretation of what is captured by “composition of the Supreme Court of Canada” in section 41(d) of the Constitution Act, 1982. Both, in my view, are right in some respects, but wrong in others.

In any amendment analysis, the first question is always: is the proposal an “amendment to the Constitution of Canada” within the meaning of Part V? In other words, does the proposal change an entrenched part of the Constitution of Canada? If yes, then we’re in Part V territory. If not, the proposal can be enacted through ordinary legislative channels. A legislated French-English bilingualism requirement would certainly be a change to the existing eligibility criteria for judges of the Supreme Court. The trickier issue is whether such a requirement is a change to an entrenched part of the constitution.

Grammond argues that it is not. In his view, section 41(d) does not shield all aspects of the Court’s composition from unilateral change, only a protected core of matters related to composition. Looking to the framers’ intent and the fundamental character of the Court, he contends that “composition” in section 41(d) only protects Quebec’s representation on the Court and the Court’s role as the guardian of the constitution against court-packing and abolition, not eligibility criteria at large. Grammond contends that a legislated bilingualism requirement would not affect anything within this protected core and therefore does not trigger section 41(d). He applies the same logic to section 42(1)(d), the provision that subjects amendments in relation to “the Supreme Court of Canada” to the 7/50 procedure. He contends that the core of section 42(1)(d) captures the Court’s role as the final court of appeal and its independence. Again, a bilingualism requirement would not affect either of these “fundamental characteristics”: “Requiring bilingualism does not detract from the Court’s role as a final court of appeal and does not jeopardize its independence”. As a result, the 7/50 rule does not apply and Parliament can pursue a bilingualism requirement through the ordinary legislative process.

Sirota disagrees. He challenges Grammond’s reliance on framers’ intent, asking us to focus instead on the text of Part V and what ‘composition’ “actually means”. Sirota admits that it is not obvious that ‘composition of the Supreme Court’ includes eligibility for membership on the Court as opposed to just the number of judges and their place of origin. But the Supreme Court has said that it does and so we’re stuck. Sirota is also uncomfortable with one implication of Grammond’s approach, namely that some but not all eligibility criteria would be captured by ‘composition’. Sirota doubts whether this approach is either “preferable or even tenable” as a matter of textual interpretation. It seems that on this reasoning, the Supreme Court Act Reference confirms that the current set of eligibility criteria for appointment to the Court is entrenched; a bilingualism requirement would alter the status quo; therefore, legislating bilingualism amounts to a constitutional amendment.

With much respect, I am not fully persuaded by either account. One reads ‘composition’ too broadly, the other too narrowly.

In hard cases (that is, in cases that don’t involve an explicit addition or deletion of words from the constitutional texts), determining whether Part V is triggered calls for a qualitative assessment. This is in line with Grammond’s approach. On my reading of the jurisprudence, when it comes to Court reform and determining whether sections 41(d) or 42(1)(d) apply, the key question is: does the proposal make a ‘qualitative difference’ or ‘substantive change’ to the constitutionally-protected character of the Court? The Supreme Court Act Reference and the Senate Reference provide some insight into the content of this constitutionally-protected character: it is concerned with the “essence of what enables the Supreme Court to perform its current role” (SCA Reference, para 101) and those matters that are “crucial to [the Court’s] ability to function effectively and with sufficient institutional legitimacy as the final court of appeal for Canada” (SCA Reference, para 93). In other words, this constitutionally-protected character captures the Court’s ‘fundamental nature and role’ and the features of the Court that bring this fundamental nature and role to life, but not the routine matters associated with the maintenance and operation of the Court. In addition, it protects the Court’s “competence, legitimacy, and integrity” and its “proper functioning” as the final appellate court for Canada, but not all aspects of the Court’s institutional design (SCA Reference, paras 93 and 101).

What does this mean for the interpretation of ‘composition’ in section 41(d)? It means that section 41(d) does not capture all matters dealing with the composition of the Court or the eligibility of potential appointees. The reasoning in the Supreme Court Act Reference does not dictate otherwise and this is where Sirota’s reasoning seems to go too far. Admittedly, the majority concluded that “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 as they existed in 1982” (para 91). But it does not follow that any change to the existing eligibility criteria triggers the amending formula. First, the majority notes that only a “substantive change” to the existing criteria will trigger the formula (para 105). Second, the majority ties its conclusion on entrenchment to the principle that the composition of the Supreme Court is essential to its ability to function effectively and legitimately, and the scope of ‘composition’ should be defined as giving effect to that principle.

In my view, it follows that section 41(d) covers matters relating to composition that are constitutionally significant and the eligibility criteria tied to them. That is, it covers only those aspects of composition and eligibility that are necessary to ensure the Court’s competence, legitimacy, integrity, and proper role and functioning. From the Supreme Court Act Reference, we know that this understanding of ‘composition’ captures the requirement that Quebec be meaningfully represented on the Court. Accordingly, legislation altering the existing eligibility criteria in ways that would make a qualitative difference to Quebec’s representation would trigger section 41(d). By way of another example, this understanding of ‘composition’ would likely also capture the requirement that the judges be drawn from the community of people with legal training and expertise. Such experience is important for the Court to fulfill its role as Canada’s final appellate court. Therefore, legislation altering the existing eligibility criteria to allow for the appointment of people without any legal training or expertise would trigger section 41(d). By contrast, a proposal to amend section 5 of Supreme Court Act to allow the appointment of advocates of at least 9 years standing at the bar of a province (instead of 10) likely would not; nor should it.

Where does this analysis leave us when it comes to a statutory bilingualism requirement for judges of the Supreme Court? On this point, Grammond does not go far enough and I agree with Sirota – implementing such a requirement demands a constitutional amendment. In part, requiring French-English bilingualism for judges of the Supreme Court would be directed at enhancing the Court’s legitimacy within a federal constitutional culture that is officially bilingual and in its constitutional role as the final court of appeal for all legal issues and for all Canadians. Further, while a bilingualism requirement might not impact the proportion of judges from Quebec on the Court’s bench, it would add an eligibility criterion that narrows the pool of potential appointees, thereby calling for an assessment of whether this aims to alter the meaning of the Court’s composition in any other ways tied to constitutional values of legitimacy and representation. At the same time, a bilingualism requirement would be a qualitative change to the current legislative standards for – and accompanying eligibility criteria directed towards – judicial competency and institutional integrity of the Court. It would suggest that appointing judges with a legal background is no longer sufficient to ensure the Court can fulfill its role and preserve its integrity; rather, proficiency in both languages is needed.

A discussion of representation and language on the Court leads to a final note. When talking about a bilingualism requirement, the amendment issue is interesting and important. It helps us see the gaps in the doctrine of Part V and the difficulties in determining both what is entrenched in the Constitution of Canada and what amounts to an amendment. In the context of Court reform, it is an opportunity to think through the significance and limits of the Court in Canada’s constitutional order, as well as what we should expect of our political actors charged with appointing its judges and pursuing reform. (Some of my thinking on the Court in the constitutional order and on constitutional amendment as an opportunity rather than a hindrance can be found here and here.)

That said, a discussion of the amendment question should not eclipse continued reflection on the appeal and desirability of pursuing a strict bilingualism requirement. Such reflection must include a more satisfying consideration of the ways in which Indigenous legal traditions and languages should be accounted for in our understanding of the Court’s composition and the eligibility of appointees in Canada’s constitutional order. Such reflection also calls for a more robust analysis of how a French-English bilingualism requirement can be reconciled with needs to diversify the Supreme Court bench more generally.