bilingualism – Double Aspect

Unconstitutional

Thoughts on the constitutionality of the new Supreme Court appointments process

In my last post, I argued that the process for appointing Supreme Court judges announced by the federal government last week is not a positive development. It will neither increase the transparency of the appointments nor de-politicize them, while creating an illusion of having done so. In this post post, I turn to the separate question of whether this process is constitutional. Two issues are relevant here. One is the government’s insistence that all future judges be bilingual. The other is the possibility that it will disregard the convention of regional representation on the Supreme Court, which requires the next appointment to come from Atlantic Canada.

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I have argued here that in light of the Supreme Court’s opinion in l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433 legislation requiring judges to be bilingual would be unconstitutional. Kate Glover has reached the same conclusion, albeit on the basis of a rather different reasoning, in a guest-post here. (I should note however that others, notably Sébastien Grammond, disagree with this view.) At the same time, it is quite clear that the government is entitled to make a policy choice to privilege certain criteria for appointing judges. After all, even a stated commitment to only appoint meritorious or excellent judges is an addition to the bare-bones constitutional requirements that l’Affaire Nadon froze in place. It would be well within the Prime Minister’s discretion to only appoint bilingual judges, and even to say that he would only appoint bilingual judges. (It would, I have argued, be an unwise thing to do, but that’s another question.)

The constitutional issue, then, is whether the government’s announcements amount to an attempt to modify the law governing the appointment of Supreme Court judges, which in my view would be unconstitutional, or are merely a policy statement, which would not be. I am inclined to think that so long as the bilingualism criterion remains essentially a policy directive, found in nothing more law-like than press releases and mandate letters, it does not stray into unconstitutionality, despite the contrary suggestions of some others, such as Matthew Hennigar and Dennis Baker in a very informative roundtable discussion published by Maclean’s. The difference between their conclusion that the Prime Minister is (in prof. Hennigar’s words) “courting a constitutional challenge” and mine may be due to the fact that they approach the issue by asking whether the bilingualism requirement is formal (and therefore constitutionally questionable) or informal (and therefore permissible). In my view, it is better to think in terms of the legal or extra-legal nature of the requirement, rather than in terms of its formality, because the underlying concern is with the integrity of constitutional rules, not their expression. Still, my views on this are tentative, and I am open to being shown that they are in error.

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The matter of the regional representation convention is more clear-cut. The government’s initial statements simply ignored the convention altogether. Then, the Prime Minister’s mandate letter to the Chairperson of the Advisory Board that will supply him with a shortlist of potential appointees asked her to “consider the custom of regional representation on the Court as being one of the factors to be taken into consideration.” But a constitutional convention is not a mere custom. It is a mandatory rule of the constitution, not just a factor to be taken into consideration among others. Violating it means acting unconstitutionally.

This point needs to be emphasized, because more than a few commentators seem to believe that an appointment in violation of the convention of regional representation would not be unconstitutional, because it would not be illegal or attract a judicial sanction. (Paul Daly’s dismissal of the convention as “fluid,” and a rule that can be tinkered with at will because it is not legal is sadly representative of this attitude.) I will return to the question of judicial sanction in a moment. But first, it is sadly necessary to remind those who think that ignoring conventions is a relatively trivial matter, that this has never been the position even those jurists who, following A.V. Dicey, insisted that courts could not enforce conventions. In the Patriation Reference, Re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753, the Supreme Court explained that

important parts of the constitution of Canada … are nowhere to be found in the law of the constitution. For instance it is a fundamental requirement of the constitution that if the opposition obtains the majority at the polls, the government must tender its resignation forthwith. But fundamental as it is, this requirement of the constitution does not form part of the law of the constitution. (877-78; emphasis mine)

These important, even fundamental, constitutional requirements, or ― as the Court also described them ― “essential rules of the constitution” (878) are conventions. The Diceyan view, which was also that of the Supreme Court in the Patriation Reference, is that constitutional conventions and constitutional law together make up the constitution. In the Patriation Reference, the Court observed that in some cases, a breach of convention “could be regarded as tantamount to a coup d’état.” (882) Of course, the breach of the convention of regional representation would not rise to that level of unconstitutionality, but it would still amount to unconstitutional action by the government, much like Pierre Trudeau’s attempt at unilateral patriation of the constitution would have been unconstitutional, although not illegal.

At Emmett Macfarlane’s urging, I will grant that the Advisory Board might take the convention more seriously than the government seems to want it to, or that the Prime Minister might yet see the folly of breaking it. The intervention of the CBA president Janet Fuhrer, who is “urg[ing]” the Prime Minister “to amend the mandate of the Advisory Board … to ensure that the Atlantic Canada vacancy is filled by a meritorious candidate from that region” is encouraging in this regard, although it is disappointing to see Ms. Fuhrer hedging her language and referring to “the longstanding custom or constitutional convention of regional representation.” The re-classification of convention into custom denigrates it and suggests that it is not binding on the Prime Minister. For the purpose of passing a political judgment on his actions, it really does not matter whether the constitutional rules he is prepared to breach are classified as being convention or law.

Now, this classification does matter for a court passing a legal judgment on the constitutionality of the government’s actions ― or at least it does so on the Diceyan view. I have argued in the past, and still believe, that this view is mistaken as a matter of legal philosophy. That is, of course, irrelevant. But there is now reason to question whether the Diceyan view is still valid in Canada as a matter of positive law. For one thing, as we know from the Patriation Reference itself, Canadian courts consider themselves free to express their views on conventions in the context of reference proceedings. It would be enough for a provincial government to refer the issue to its court of appeal for the convention of regional representation to be fair judicial game. Moreover, lower courts have already pronounced on constitutional conventions in the context of ordinary litigation (notably in Conacher v. Canada (Prime Minister), 2009 FC 920, [2010] 3 FCR 411, aff’d in Conacher v. Canada (Prime Minister), 2010 FCA 131, [2011] 4 FCR 22) though the Supreme Court has not yet had an opportunity to do so.

Then, there’s the possibility that that the Supreme Court has transformed at least some constitutional conventions into legal rules when it invoked the notion of a “constitutional architecture” in Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704. My view, at least, is that that’s exactly what the Court did, but this is a controversial claim, and I have no room to develop, much less to defend, it here. (I will try to do that in a paper I am due to write in the coming months, and I will try to blog about it as I do so.) Even if I am right, however, there remains the further question of which conventions are part of the constitutional architecture, and in particular whether that of regional representation is. In a very interesting post at the CBA National Magazine’s blog, Jennifer Taylor has argued that it is. She may well be right, but I need to think a bit more about this before I am sure.

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Important though it is, the legal issue should not distract us from the constitutional one. Constitutionally (and legally), the Prime Minister is in my tentative view free to adopt a (misguided) policy of only appointing bilingual judges to the Supreme Court, and to ask his advisers to counsel him accordingly. But, constitutionally (whether or not legally) the Prime Minister is not free to deprive Atlantic Canada (or any other region) of its representation on the Supreme Court. The appointment of a judge from outside Atlantic Canada would be unconstitutional, regardless of whether it would be illegal (though it might be), and of whether or not courts could say so (though they could).

That the Prime Minister should be open to engaging in such behaviour makes it clear that ― rather like his predecessor ― he does not consider himself bound by the constitution, or at least those parts of the constitution that he thinks he might get away with ignoring. For this reason, I find the many expressions of support for the Prime Minister’s plan quite dispiriting. They give the impression that the scrutiny which the legal community rightly applied to the previous government’s cavalier approach to the constitution was as much the result of opposition to that particular administration as of a sincere belief in constitutionalism. And it would be very sad indeed if that impression were justified.

Smoke and Mirrors

The new process for appointing judges to the Supreme Court is nothing to be happy about

Last week, the Prime Minister announced a new(-ish) appointments process for judges of the Supreme Court of Canada. The announcement was met with praise by many, and criticism by some. For my part, I am with the critics. Far from being a triumph of transparency and depoliticization, this new process is an elaborate mechanism of smoke and mirrors set up by a government that wants to look like it is committed to improving the state of the Rule of Law and of Canada’s judicial institutions ― and to act like it is not.

The new process starts with a seven-member “Advisory Board” appointed by the government, which will receive applications from lawyers and judges who put themselves forward for an appointment, and is also asked “to actively seek out qualified candidates and encourage them to apply.” After consulting “with the Chief Justice of the Supreme Court of Canada and other key stakeholders the Board considers appropriate,” the Board will put together a list of three to five candidates and provide an assessment of how they meet the criteria for an appointment ― both the baseline laid out by the Supreme Court Act and the government’s wish list for a perfect judge. After a further round of consultations ― including, once again, with the Chief Justice ― “the Minister of Justice will present recommendations to the Prime Minister who will then choose the nominee.” Finally, the Chairperson of the Advisory Board, the Minister of Justice, and the chosen candidate (whom the government documents refer to as the “nominee” even though his or her appointment at that point, is a fait accompli or at least a foregone conclusion), will meet with Members of Parliament, the latter in a “question and answer session” moderated by a law professor.

Is this really a victory for transparency? In an excellent round table published by Maclean’s, Dennis Baker ― who, as we’ll see, is in many ways skeptical of the new appoitnment process, says that the “Government deserves credit for making the process more transparent and open.” Paul Daly is delighted that judges will no longer “actively lobby behind the scenes for elevation to the Court.” I am not so sure. There is simply no objective way to weigh the sixteen ― yes, sixteen ― criteria on the government’s wish list, and to classify the indefinite number of candidates whom the Advisory Board will consider according to these criteria. The same goes for the Prime Minister’s ultimate choice between as many as five candidates. Whatever reasons the Board and the government may give for their choices will be no more than exercises in ex-post self-justification, which does not count as transparency in my book, though the illusion of transparency the process creates may if anything be even worse than the current clearly opaque process. As for judges lobbying the Advisory Board or the Justice Minister behind the scenes, I see nothing in the government’s announcement preventing that from happening.

In some ways, to be sure, the new process will be more transparent than those that were used before. In particular, it is pretty clear (although not explicit) that the Advisory Board’s shortlist will be public, which past shortlists were not (until leaked, or dug out by, the media). For my part, I do not find this change an improvement. I feel for those candidates who will be encouraged by the Board to apply and not shortlisted, and for those shortlisted and ultimately shortchanged. John Pepall asks whether MPs who take part in Parliamentary hearings with the Justice Minister “[w]ill … be told how unsuccessful applicants fell short of the ideal? That should do wonders for the administration of justice,” he says ― sarcastically of course.

The other supposed achievement of the new appointment process is that, in prof. Daly’s exultant words,

[n]o longer will political appointments be made because of party allegiance or ideology rather than legal acumen. … Henceforth, a judge’s ability to ‘do law’ will become the primary criterion for nomination, bringing Canada into line with other countries where appointments are made entirely on merit.

With respect, this strikes me as an unlikely prospect. First, as already noted, the Prime Minister retains substantial discretion under the new process, having reserved for himself the prerogative of choosing from among up to five candidates, and the large number of subjective, imponderable criteria supposed to guide that choice mean that any selection can be retroactively justified in suitably lofty language. Nothing stops this discretion from being used ― or abused ― to appoint the candidate seen as the most ideologically friendly, or indeed the one deemed to best satisfy some set of demographic desiderata having nothing to do with legal acumen. The government’s reported frustration at being unable to find a judge corresponding to such demographic criteria to replace the retiring Justice Cromwell gives little hope that they will not overshadow ability “to ‘do law'” as it goes forward with its Supreme Court appointments.

And second, even if the Prime Minister has no intention of doing this, the fix is already in by the time he receives the Advisory Board’s short list ― and it is his government’s design of the Board that assures that this is the case. In the Maclean’s round table, Troy Riddell says that

The dominance of the legal profession on the [Advisory Board] coupled with the other non-legal members appointed by the government is suggestive of the kind of candidates the government wishes to choose (and those whom they do not want to choose—namely those with more conservative ideology). [The new process] is an improvement over the old system, but “politics” broadly defined will stay play a role.

Lori Hausegger responds by saying that

the representation [on the Advisory Board] of the Canadian Bar, the Canadian Judicial Council and the Federation of Law Societies—not to mention a progressive conservative as chair … —suggests [excluding “someone with a more conservative ideology”] is not the government’s main focus.

However, as prof. Riddell points out,

Organizations representing lawyers and judges tend to see themselves as “guardians” of the constitution—their vision of the constitution and the relationship between courts and Parliament is likely not as liberal as some activists would desire, but it is more liberal than what would be espoused by a conservative-oriented jurist. The overall result could be a lack of ideological diversity on the Supreme Court bench, which I think would be unfortunate.

I think prof. Riddell is right, and indeed I would put the point more strongly. The legal profession and the judiciary already are ideologically homogeneous. This is why Stephen Harper found it so difficult to appoint judges to his liking. An advisory Board dominated by representatives of an ideologically homogeneous profession will be homogeneous itself, and, as any such group, will reproduce and reinforce its members’ preferences in its decisions.

Like prof. Riddell, I think this unfortunate, because I believe that courts benefit from ideological diversity just as much as they benefit from demographic diversity. However, the lack of such diversity as such is not a significant criticism of the new appointments process, because it is every bit as possible for appointments made at the Prime Minister’s unfettered discretion to be just as homogeneous. The reason I belabour this point, rather, is that it shows that the pretense that the new process is somehow de-politicized to be a sham.

There is more to say about the new process, but this post is getting long, so I’ll try to be brief. I will note that I have already explained, in some detail, why I think that bilingualism should not be required of newly-appointed Supreme Court judges. In a nutshell, while I take the point that competency in both official languages is an aspect, and a very important aspect even, of legal competence, judicial appointments inevitable involve tradeoffs, because all potential judges have their strengths and weaknesses, and I would not foreclose the possibility that a candidate’s strengths elsewhere outweigh his or her linguistic shortcomings. The requirement of bilingualism ― and the government’s wish list, which states that it “has committed to only appoint judges who are functionally bilingual,” makes it very clear that it is a requirement and not, as prof. Daly says, merely “a desirable characteristic” ― is a serious mistake.

And then, there is the question of just how heavily demographic considerations, such as gender, background, or disability will weigh in the new process. Although the government has hinted that such factors will matter ― and, other things being equal, a demographically diverse court is better than a homogeneous one ― it is rather encouraging to see that “[e]nsuring that the members of the Supreme Court are reasonably reflective of the diversity of Canadian society” is only one of the sixteen criteria on the government’s wish list, and indeed the very last one. As for the Advisory Board chairperson’s mandate letter, it does not mention this issue at all. Perhaps the government knows that its winks and hints will be enough ― but perhaps its approach really is a little less identity-focused than some of its fans might have hoped for, and its skeptics (yours truly included) feared.

This is ― perhaps ― a silver lining. But otherwise, the news of the shiny new appointment process for Supreme Court judges portends nothing good. The process conceals Prime Ministerial power as much or rather more than it diminishes it, while needlessly exposing unsuccessful candidates ― many of them, no doubt, sitting judges ― to public humiliation. It does not prevent the government from appointing judges on the basis of political or considerations or other factors unrelated to legal ability, and indeed ensures that ideology will continue to play a key role in judicial appointments. And it foolishly elevates bilingualism into a determinative consideration for appointment, reducing the pool of eligible candidates and doubtless depriving the Supreme Court of many fine judges. It is, in short, nothing to be happy about. As for the further question of whether it is also unconstitutional, I hope to return to it later this week.

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.

The Comprehension of “Composition”

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, [2014] 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.

How to do Originalism

In my last post, I summarized the Supreme Court’s recent decision in Caron v. Alberta, 2015 SCC 56, which held that Alberta is not under a constitutional obligation to enact legislation in French as well as English. There was, you will recall, a majority opinion by Justices Cromwell and Karakatsanis, who were joined by four of their colleagues, and a dissent by Justices Wagner and Côté, joined by Justice Abella. In this post, I would like to venture some comments on the disagreement between them. This disagreement was quite sharp. The dissenters insist that the majority’s reasoning both results from and perpetuates an injustice, although they never explicitly accuse the majority of being unjust. I suppose that dissenting judges often think that ― but it seems to me that the thought is rarely expressed. And yet, in a sense, the disagreement between the two opinions is very narrow, almost abstruse.

Both the majority opinion are originalist, in the sense that they accept that the meaning of the relevant constitutional provision is to be determined by reference to the ideas of the time of the provision’s enactment. The provision at issue in Caron is a passage from an Address by the Canadian Parliament to the Queen, adopted in 1867 pursuant to section 146 of the Constitution Act, 1867 to ask for the incorporation of what was then Rupert’s Land and the North-Western Territory (to which I will collectively refer as “the North-West”) into Canada, and incorporate into the constitution as a schedule to the Imperial government’s Order that annexed most of these lands (except the portion that became the province of Manitoba) to Canada. The Address and the Order resulted from a complex series of events and interactions between the Canadian government and Parliament, the Hudson’s Bay Company (which owned and administered the North-West), the British government, and the inhabitants of the North-West and their government and delegates who negotiated their entry into Canada. The two opinions make extensive reference to these events and interactions, and to the thoughts of the people involved. Repeated out-of-hand rejections of originalism notwithstanding, it is alive and kicking in Canadian constitutional law, as Benjamin Oliphant and yours truly have been pointing out for a while now.

The majority and the dissent disagree, however, about the sort of originalism that ought to govern their interpretation of the 1867 Address. The majority’s approach is something like “original public meaning originalism,” which, as Lawrence Solum explains, “emphasizes the meaning that [constitutional provisions] would have had to the relevant audience at the time of its adoption[].” Much of the majority opinion is devoted to showing that the phrase “legal rights” used in the Address would not have been understood, in 1867 or 1870, as referring to linguistic rights. The majority’s summary of the reasons for its conclusion as to the interpretation of the phrase legal rights notes that

(i) Never in Canada’s constitutional history have the words “legal rights” been taken to confer linguistic rights;

…

(iii) The contemporary discussions show that neither Canada nor the representatives of the territories ever considered that the promise to respect “legal rights” in the 1867 Address referred to linguistic rights;

(iv) The contemporary evidence also shows that the territorial representatives themselves considered that their linguistic rights had been assured through the Manitoba Act, 1870, not the 1867 Address or the 1870 Order;

(v) Federal legislation and debates surrounding it in relation to the new North-West Territories in 1875 and 1877 show that no one involved thought that there had been any guarantee of legislative bilingualism in 1870. [4; emphases removed and added]

In other words, the majority’s focus is on the public meaning of the term “legal rights,” and more specifically its meaning to Canadians or Canadian lawyers generally (i, v), the Canadian government (iii, v), and the representatives of the North-West (iii, iv, v).

The dissent, by contrast, favours “original intent originalism,” which focuses on the intentions of the authors of the relevant constitutional provisions. Its review of the historical evidence focuses not so much on how the words “legal rights” would have been understood ― indeed, the analysis of these words takes up a very short portion of the dissenting opinion ― but on what the parties, and especially the inhabitants of the North-West, sought to accomplish. Their wishes, the importance they attached to legislative bilingualism are the dominant considerations for the dissenters. The dissent insists that “our reading of constitutional documents must be informed by the intentions and perspectives of all the parties, as revealed by the historical evidence.” [235; emphasis added] These documents are “a statement of the will of the people” [235] ― and one gets the impression that, for the dissent, the will to which is seeks to give effect is rather more important than the statement itself.

For my part, I prefer the majority’s approach. Prof. Solum’s brief introduction to originalism, to which I link above, points to some problems with the “original intent” version of that theory, which the dissent in Caron illustrates. One issue is the difficulty of ascertaining a collective “intent,” especially among a large and diverse group of constitutional framers or, as in Caron, in a situation where there were different parties with divergent interests involved. Indeed, although the dissent asserts, generally, that “[t]he Constitution of Canada emerged from negotiations and compromises … achieved when parties to the negotiations make concessions in pursuit of a mutual agreement and reach a meeting of the minds,” [235] the 1867 Address, which is, after all, the operative constitutional provision, was not the result of a negotiation at all. It was a unilateral statement by the Parliament of Canada, and it is therefore not obvious that the intentions or aspirations of the people of the North-West are actually relevant to its interpretation.

Another problem with “original intent” originalism, in Prof. Solum’s words, is that “[t]he intentions of the framers of a given constitutional provision can be formulated as abstract and general principles or as particular expectations” as to how the provision will be applied. Assuming the relevant actors in 1867-70 had a unified intent, was it that legislative bilingualism in the North-West would in fact be continued and respected ― as indeed it was for decades ― or that it would also be constitutionally entrenched? Actually, this questions points to a broader difficulty, which affects the majority opinion as much as the dissent, and of which more shortly.

Both of these issues to point to a third one, which is simply that the intent of the framers of a constitutional provision is difficult to ascertain, and that the legitimacy of an intention not codified in the constitutional text itself as a source of constitutional law is very questionable. As I wrote here in connection with Québec’s arguments in l’Affaire Mainville, there is a danger of litigants ― or, I would now add, judges ―

simply taking advantage of the fact that the intent of the framers cannot be known … and using it as a banner under which to carry its own interpretive theory that doesn’t have much to do with the only sign the framers left of their intent ― the text itself.

Be that as it may, I want to reiterate a point that I might have made here before. Denying the significance of originalism to Canadian constitutional law, as both judges and scholars are wont to do, does not actually make it go away. Canadian courts still make originalist decisions, such as Caron, and litigants still make originalist arguments. But, importantly, this all happens in an intellectual vacuum. Because we are only interested in the question whether to do originalism, and have a ready-made negative answer for it, the debates over how to do it, such as those prof. Solum describes in the post linked to above and here, have not happened this side of the border, and the American debates have been ignored. As a result, questionable approaches to constitutional interpretation can endure unchallenged ― even if, as in Caron and in l’Affaire Mainville, they do not prevail when the votes are counted.

I come back to the broader issue I have with both the majority and the dissent to which I referred above. Both opinions assume that, if the “legal rights” which Canada undertook to uphold in the the 1867 Address include linguistic rights, then they are constitutionally entrenched. But it is not clear to me that this must be so. After all, nobody thinks that the (other) “legal rights” that all agree were part of this undertaking, those of property and contract, were similarly entrenched beyond modification by ordinary legislation, whether federal or, eventually, territorial and provincial. Canada had to respect the rights that existed at the time the North-West was annexed, but that did not mean that Parliament or the legislatures created in the territories could not subsequently legislate to modify or even derogate from these rights. Why exactly are linguistic rights different? Neither opinion explains this.

The comparison with ordinary “legal rights” also casts doubt on the dissent’s assertion that legislative bilingualism or language rights more broadly are “not a political issue that can be left up to the government.” [243] Leaving rights to “government” ― or, more accurately, to legislatures ― need not mean that these rights will not be protected at all. To be sure, it may well be a good idea to entrench (some) rights beyond the reach of ordinary legislation. I have myself argued that the framers of the Canadian Charter of Rights and Freedoms erred in not doing so with property rights. But there is no need, it seems to me, to seek to infer the decision to entrench a right from tenuous evidence of intent, or from the desires of those whom this right would benefit. Contrary to what the dissent in Caron suggests, it is not at all clear that injustice results from a failure to do so.

The Caron majority thus arrived at what I believe is the right result, but even its reasoning might be questionable. Moreover, while its approach to originalist constitutional interpretation is better than the dissent’s, it is just as little explained and defended. Still, I hope that this case might give us the impetus to abandon the pretense that originalism has no place in our jurisprudence, and to start thinking more seriously about when, and how, as well as whether, it ought to be employed.

What Did They Mean?

Must the laws of Alberta ― like those of Manitoba (as well as Québec, New Brunswick, and of course Parliament itself) be enacted and published in both French and English? The answer to this question, which the Supreme Court addressed in Caron v. Alberta, 2015 SCC 56, decided on Friday, turns on the meaning of a short phrase in a document soon to be 150 years old.

The Court’s majority, in an opinion by Justices Cromwell and Karakatsanis, found that Parliament’s promise to protect the “legal rights” of the inhabitants of the then-Rupert Land and North-Western Territory did not encompass a guarantee of legislative bilingualism. The dissenters, justices Wagner and Côté (whose opinion Justice Abella joined), begged to differ, repeatedly accusing the majority of committing an injustice. I will summarize the two opinions in this post, and venture some thoughts in a separate one.

* * *

To understand this case, a rather lengthy historical explanation is in order. In 1867, the territories that have since become Manitoba, Saskatchewan, and Alberta, as well the Yukon, the Northwest Territories, the Nunavut, and parts of Québec and Ontario, belonged to and were administered by the Hudson’s Bay Company (HBC). Section 146 of the Constitution Act, 1867, provided for the “admission” into Canada by the Imperial government, on address of the Canadian Parliament, “on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act.” Parliament approved the first such address in 1867, and another one in 1869. The 1867 address stated that Canada would uphold “the legal rights of any corporation, company, or individual” in the North-West ― the phrase on which the issue before the Supreme Court turned.

However, the Canadian annexation plans provoked a rebellion in the Red River Settlement, the main population centre in the North-West, in what would eventually become Manitoba. The rebels formulated a number of conditions on which they would accept Canadian sovereignty. Among them were demands for legislative as well as judicial bilingualism. They also demanded the creation, out of the territories, of a single province of Assiniboia, and made financial demands.

The Canadian authorities responded, first, by issuing a Royal Proclamation promising among other things that “all your civil and religious rights and privileges will be respected” upon entry into Canada. Under pressure from the Imperial government, they negotiated with delegates from the North-West and eventually accepted that part of the new territories would enter Canada as a new province, Manitoba. The rest would become a federally administered Territory, whose creation was provided for by an Order of the Imperial government, to which the 1867 and 1869 addresses of the Canadian Parliament were annexed. That Order is part of the Constitution of Canada described in and entrenched by section 52 of the Constitution Act, 1982.

In the first years after 1870, the new North-Western Territory was governed as though it were part of Manitoba. The laws enacted (in both French and English) by that province’s legislature applied. Then, in 1875, Parliament enacted a statute setting up a separate territorial government. A requirement of legislative bilingualism was included in that law in 1877, as a result of an amendment moved by a Senator from Manitoba. Legislation enacted in 1891 made clear that the Territory’s legislature could decide which language to use. In 1905, the province of Alberta (as well as Saskatchewan) was created out of a part of the Territory, and eventually it legislated to enact future laws in English only.

If Canada’s undertaking to protect the “legal rights” of the North-West’s inhabitants included language rights, such as legislative bilingualism, then this chain of enactments was invalid. Canada could not allow the North-Western Territory, or its successors the provinces of Alberta and Saskatchewan, to renounce legislative bilingualism, and the provinces had no authority to do so. This was the appellants’ main argument.

* * *

For the Supreme Court’s majority, the phrase “legal rights” does not encompass legislative bilingualism. While the constitution generally “should be interpreted in a large and liberal manner,” [35] and linguistic guarantees are particularly important, “[t]hese important principles … do not undermine the primacy of the written text of the Constitution.” [36] Moreover, it is not enough to

simply resort to the historical evidence of the desires and demands of those negotiating the entry of the territories, and presume that those demands were fully granted. It is obvious that they were not. The Court must generously interpret constitutional linguistic rights, not create them. [38]

Having set out these interpretive principles, the majority explains why in its view they lead to the conclusion that “legal rights” do not include legislative bilingualism. First, “[l]anguage rights were dealt with explicitly in s. 133 of the Constitution Act, 1867 and in the Manitoba Act, 1870 in very similar and very clear terms. The total absence of similar wording in the contemporaneous 1870 Order counts heavily against the appellants’ contention.” [40] Second, “political leaders in the territories themselves expressly provided for language rights when they were meant to be protected and those rights were differentiated from other, more general, rights.” [52] Third, “[t]he parliamentary debates related to the adoption of the 1867 Address show that language rights were not subsumed under the term ‘legal rights’ or ‘droits acquis‘ / ‘droits légaux‘ [which were used in various French versions of the Address].” [53] Rather, “legal rights” referred to property and economic rights. Fourth,

[t]he end result of the negotiations regarding legislative bilingualism was the enactment of the Manitoba Act, 1870. Conversely, it was never the objective of the 1870 Order to dictate that French and English must be used by the legislative body governing the newly established North-Western Territory. [58]

While the delegates from the North-West “sought to entrench bilingual rights, just as … they sought for the territories to enter Canada as a province,” [60] they only succeeded with respect to what became Manitoba ― which, however, is where most of the North-West’s people lived. Fifth, the 1867 Address cannot be taken to reflect an agreement between Canada and the people of the North-West that would not be reached until 1870.

The majority further argues that the events after 1870 confirm that the relevant actors did not understand legislative bilingualism in the North-Western Territory to be a matter of constitutional obligation. Although the amendment establishing bilingualism in the Territory’s government was not contentious, nothing shows that it was perceived as fulfilling a constitutional duty. If anything, the government at the time thought that the matter was best left to the Territory’s legislature ― as was eventually done.

Before concluding, the majority notes that if the appellants were to succeed, legislative bilingualism would be “constitutionally entrenched not only for Alberta, but also for all of the former HBC lands, which now form part of Saskatchewan, Ontario, Quebec, Yukon, Nunavut and present-day Northwest Territories.” [102] Moreover, “[t]he logical extension of this reasoning would also lead inevitably to the conclusion that a variety of other demands made by the settlers have been constitutionalized by the words ‘legal rights,'” [102] including the to entrench the then-prevailing practice of appointing bilingual judges.

* * *

The dissent took a different approach to the issue before the Court. In its view, “[t]he answer to the question whether Alberta is constitutionally required to enact … all its laws in French as well as in English is written across the history of Rupert’s Land and the North-Western Territory” ― and not merely in the phrase “legal rights” in the 1867 Address. Ascertaining the meaning of that step is only the last step of its analysis.

Much of the dissenting opinion consists of an extensive review of the historical evidence. Its authors insist that “the content of the promises conveyed in the 1867 Address cannot be interpreted without reference to the context in which they were made.” [139] This review serves to stress, time and again, the importance of legislative bilingualism to the people of the North-West.

This population, the dissent notes, was composed of both French- and English-speakers; their legislature and their courts used both languages, as did the administrators appointed by the HBC; departures from these practices were met with discontent and resistance. Bilingualism extended throughout the North-West ― it was not limited to what became the province of Manitoba, and as the delegates who negotiated the annexation with the Canadian government represented the people of all the North-West, not only of the Red River Settlement, it would have been been inconceivable for them to limit their demands for legislative bilingualism to that province. Indeed, the Canadian government did not oppose these demands, nor was it in a position to do so, being pressed to conclude an agreement by the Imperial authorities.

For the dissent, the events after 1870 support the existence of a constitutional promise of legislative bilingualism to the people of the North-West. Little changed there in the aftermath of the annexation to Canada, since the bilingual administration of Manitoba exercised power. And once the territorial government was established, it was bilingual in practice, even before bilingualism was required by federal law.

This historical review takes up more than 100 paragraphs in the dissenting opinion. The “Application of the Principles of Constitutional Interpretation to the 1867 Address,” which follows it, fewer than 30. The principles in question “are that the Constitution must be interpreted contextually, that its provisions must be given a broad and purposive reading, and that its nature — as an expression of the will of the people governed by it — is relevant.” [216]

Applying these principles, the dissent concludes that the “historic” “compromise between the Canadian government and the territories’ inhabitants” [222] included a promise of legislative bilingualism. Referring to the French version of the 1867 Address, which spoke of the “droits acquis” ― the vested rights ― of the people of the North-West, the dissent states that “legislative bilingualism was one of these vested rights.” [226] It was also implicitly referred to by the Royal Proclamation, with its promise to uphold “civil and religious rights” ― which thus “recognized the cultural needs of the Métis” [229] of the North-West. That the protection of linguistic rights was not explicit as in other constitutional provisions is not determinative. To hold otherwise would be unjust and incompatible “with the broad and generous approach to constitutional interpretation that this Court has repeatedly taken,” [231] and with the “large and expansive meaning” which the authors of the 1867 Address “attributed … to the[] rights” it contained. [234] Finally, the dissent asserts that, like Confederation itself,

[t]he annexation of the territories … resulted from negotiations between a dominant English-speaking party and a party with a strong interest in protecting the French language. Like the French-speaking minority in the negotiations that resulted in Confederation, the inhabitants sought to have the protection of their linguistic rights entrenched in the Constitution, and this was granted to them. [239]

To give effect to “the will of the people” who enacted it, the interpretation of the Constitution must take their demands into account.

* * *

So much for the opinions. I will try to have some thoughts on them shortly.

Living with Imperfect Judges

The arguments about limiting appointments to the Supreme Court to bilingual candidates are rather tired, not to mention more or less moot. But they keep coming back, over and over again. I actually wrote about the topic a while ago, but since it is in the news again, following the appointment of (the apparently bilingual) Justice Brown, and since not all of my readers are bilingual themselves, it might be worth returning to.

The first thing to say here is that, as I have already noted, the Supreme Court’s opinion in l’Affaire Nadon, 2014 SCC 21, [2014] 1 S.C.R. 433 means that any legislation to add bilingualism to the list of requirements for Supreme Court appointments would be unconstitutional. The criteria, as they now exist, have been set in stone by the Court’s conclusion that they are part of the “Constitution of Canada,” and more specifically of the “composition of the Supreme Court of Canada.” It would take a constitutional amendment supported by every province to change them.

Of course, that does not make it impossible, or necessarily wrong, for a Prime Minister from making it his policy, even publicly declared policy, to only appoint bilingual candidates. Indeed, there is nothing to prevent such practice, if continued long enough (and by more than one Prime Minister), from becoming a constitutional convention. So the question whether instituting such a practice, and trying to foster such a convention, would be a good idea.

The argument in favour of requiring bilingualism is that it is imperative that a judge be able to understand the parties appearing before him or her. To be sure, the Supreme Court has a translation service, including simultaneous translation at the hearings, but that’s not good enough. Translators can make mistakes, and when the fate of a litigant, and sometimes even of the country, is at stake, it is unconscionable to allow the outcome of a case be affected by such things. This seems compelling enough, until we start asking more precisely what it is that the proponents of mandatory bilingualism want, how they plan to achieve it, and what the cost of doing so would be.

It is good and well to say that a judge must understand those who appear before him, but what level of understanding is enough? Is fluency mandatory, or is a lesser level of proficiency sufficient? Grégoire Webber, perhaps the only person I have seen address this question, says “legal competency in language is satisfied by understanding a case without the aid of an interpreter” ― a standard that strikes me as very vague. A person might think that he or she does not need the assistance of an interpreter, and yet be mistaken about this, or at least end up with a worse understanding of the case than if he or she had relied on an interpreter.

Partly for this reason, it matters how we are going to determine whether a judge meets bilingualism requirements, whatever they are. Will we rely on an appointee’s say-so, or are we going to have them take the civil servants’ exams? Is having a judge take an exam, especially one where evaluation is in part discretionary, and where so much is at stake, ever a good idea? Can it be squared with judicial independence? At the very least, those who clamour for bilingualism requirements owe us answers to these questions. They have seldom, if ever, given any.

However, even if these questions could be answered in a satisfactory fashion, a policy of mandatory bilingualism would come with significant downsides. Fears, such as those of the National Post’s editorial board, that it would become well-nigh impossible to appoint judges from the non-bilingual parts of the country are clearly overblown (as the appointment of Justice Brown seems to demonstrate). But it is true that the pool of eligible candidates would become a good deal shallower than it now is. Among the current judges, the Chief Justice and Justice Moldaver (as well as Justice Rothstein, whom Justice Brown will replace) could not have been appointed under a mandatory bilingualism rule. I think this has to be acknowledged as a clear loss. Both the Chief Justice and Justice Moldaver made efforts to learn French since their appointments, by the way ― the Chief Justice, at least, with considerable success, so much that she is now generally regarded as bilingual. Still, it is a mistake to forget that she was not bilingual when she was first appointed. And more generally, as I said in my earlier post on the subject, to the extent that a unilingual candidate is regarded as better qualified than a bilingual one, is there not an injustice involved ― an injustice to all the litigants who will appear before the court ― in not appointing him or her?

Prof. Webber argues that linguistic competency is an aspect of legal competency, and that there is therefore a loss of quality involved in appointing unilingual judges. I agree with that. If I were in the business of appointing judges to the Supreme Court, I would consider any evidence of their bilingualism as a major strength, and evidence of the contrary as a weakness. But I would keep in mind the fact that judicial appointments inevitably involve tradeoffs. A prospective judge might be a brilliant criminal lawyer, but know relatively little about commercial law. Another can be an expert on the civil law, but have only limited notions of the common law. Such judges are therefore, far from perfect ― but sometimes, far from perfect is the best we can get. There is no Hercules hiding out there within the ranks of the Canadian legal profession, awaiting a Supreme Court appointment. Similarly, lack of linguistic skills is a flaw in a potential judge ― but I would not foreclose the possibility that a candidate who has this flaw nonetheless represents the best balance of flaws and qualities available, or the one that is most adapted to the present needs of the court to which he or she will be appointed.

To be sure, I think it is incumbent on newly-appointed judges to be aware of their shortcomings, and to do their best to remedy them. Given the breadth of the Supreme Court’s jurisdiction, no judge can be expected to be an expert in all the areas of the law that may be relevant to its work, but all judges can be expected to try to fill the gaps in their legal knowledge. And in the same way, I think it is fair to ask that judges who do not speak or understand one of the Court’s languages try hard to learn it ― exactly as the Chief Justice has done and Justice Moldaver is doing. But it would not be fair to expect all to succeed perfectly.

There are good reasons why appellate courts are multi-member institutions. One of these reasons is that the judges all have their strengths and weaknesses, and the strengths of some can help mitigate the weaknesses of others. In the context of the Supreme Court of Canada, unilingualism is a weakness. As some the current judges prove, it is not an incorrigible one even at the individual level but, more importantly, this weakness can be remedied by the institution. It would be great, of course, if the Supreme Court’s bench consisted of nine fluently bilingual experts on every part of Canadian law. But, realistically, we must make do with imperfect judges. Among the many judicial imperfections, I do not think that unilingualism is a uniquely disqualifying one.

What You Wish For

As promised, here are some thoughts on the Supreme Court’s opinion in l’affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. As I mentioned in my last post, which summarized the majority opinion and Justice Moldaver’s dissent, I think that the majority opinion is a weak one. I should note that my views here seem to be very much in the minority. The commentary I have seen so far is very enthusiastic. Carissima Mathen has written that “[t]he Court has held the government to account [and] asserted its independence“; Adam Dodek has described it “an instant landmark ruling, a classic ruling,” and Paul Daly, as “a huge day for the Canadian federation.” I am sorry to dissent from such esteemed jurists. Yet dissent I must, because, in my view, the majority’s opinion neither responds to some of the most serious arguments against it, including those articulated by Justice Moldaver, nor considers the unfortunate consequences that it is bound to have.

With respect to the statutory interpretation issue of whether s. 6 of the Supreme Court Act allows the appointment of former, rather than current members of Québec’s bar or s. 96 judiciary to the Supreme Court, I basically agree with Justice Moldaver’s dissenting opinion. With respect to the meaning of s. 6, the majority opinion acknowledges that it must be read together with s. 5, which provides the minimum criteria of eligibility, notably the 10-year bar membership requirement and, to use Justice Moldaver’s expression, “cherry-picks” among the possible ways in which these provisions can be combined. If the 10-year requirement must be read into s. 6, then why not the possibility to appoint former judges or lawyers?

The key to the majority opinion is really its view that the purpose of s. 6 is not only to ensure that the Supreme Court has sufficient expertise in the civil law, but also that it is seen as having such expertise and representation of Québec’s “social values,” whatever those might be and, further, the assertion that the Court can only be so seen if its members are, at the time of their appointment, current members of Québec’s bar or s. 96 bench. With respect, this view is mistaken.

As Justice Moldaver, I do not believe that there is any substantial connection between current membership in Québec’s bar or s. 96 bench and a judge’s legitimacy as Québec’s representative on the Supreme Court. Judges of Québec’s provincial court are steeped in Québec’s legal and social reality, yet they are excluded; so are judges of the federal courts, even though they are specifically appointed there as representatives of Québec’s civil law system, and regardless of the amount of time they have spent on there. At the same time, a lawyer who spends his or her career abroad but maintains membership in the Québec bar is eligible. How this mix of eligibility criteria serves to make potential appointees more legitimate representatives of Québec is beyond me. Prof. Mathen and Michael Plaxton have argued, and the Supreme Court’s majority has agreed, that although imperfect, it is still a reasonable proxy for the purpose of ensuring the Court’s legitimacy, but the fit between these criteria and the alleged purpose is so loose that it seems more reasonable to me to suppose that the statutory purpose must be different from that which these criteria so poorly support.

Indeed, taking the idea that current membership in Québec’s legal profession is required to make a judge a legitimate representative of the province on the Supreme Court leads to the absurd conclusion that the longer a Québec judge sits on the court, the less legitimate he or she is, by virtue of his or her allegedly growing detachment from Québec legal culture and “social values.” I do not believe that anyone has ventured such a suggestion, but it seems to follow from the logic adopted by the Supreme Court’s majority. That logic, in my view, reflects ― and reinforces ― a sadly narrow view of what it means to be a Quebecker and a Québec jurist. As André Pratte has pointed out,

[i]f we follow [this] reasoning, a lawyer who practiced for 10 years in Rivière-du-Loup would be a more suitable representative for Québec than a brilliant jurist who, for example, spent a part of his career with the International Court of Justice. (Translation mine).

The majority’s reasoning does not get any better when it gets into the constitutional part of its opinion. Indeed, the neither the majority nor Justice Moldaver really explain how any part of the Supreme Court Act gets to be constitutionally entrenched, despite not being mentioned in the Schedule to the Constitution Act, 1982, apart from asserting that the Court is so important that it just has to be. But the Court was already important before the entrenchment of the Constitution Act, 1982 ― yet not constitutionally protected. Indeed, our original supreme court ― i.e. the Judicial Committee of the Privy Council was stripped of its jurisdiction by ordinary acts of Parliament. (The Supreme Court’s willingness to reason in this way, however, is probably very bad news for the federal government’s unilateral Senate reform plans.) Nor does the majority explain why eligibility criteria, including the length of required bar membership, are part of the Supreme Court’s “composition.” As a strictly textual matter, this does not seem obvious to me, and Justice Moldaver’s doubts in this respect would, at the very least, have deserved a response.

The majority’s opinion is thus poorly argued (indeed, it is more asserted than argued, if argument entails responding to counter-arguments), yet it will have unfortunate consequences. In particular, it will limit the pool of Québec jurists available to sit on the Supreme Court; and, from now on, it will deter talented and ambitious Québecois from applying to sit on the federal courts, which will undermine these courts’ quality and, ironically, their ability to represent Québec’s legal community and tradition.

Another consequence of the majority’s reasoning, which I do not mind but which ought to displease some of the the Court’s decision’s supporters, is that a law restricting future Supreme Court appointments to bilingual candidates would be unconstitutional. Since the constitutionally entrenched “composition” of the Court “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″ (par. 91; emphasis mine), the addition of a requirement of bilingualism would be every bit is unconstitutional as the removal of a (purported) requirement of current membership in Québec’s s. 96 bench or bar. Now this consequence may well be a feature, not a bug of the majority’s opinion. Be that as it may, I think it is important to point out this effect of the decision, which no commentator, as best I can tell, has yet addressed.

To be sure, the issue of the meaning of the Supreme Court Act’s eligibility provisions was not a simple one. Emmett Macfarlane has a point when he writes that “there were clear legal reasons to support either outcome” ― not clear, perhaps, but serious ones. Still, I think that on the issue of the legislation’s purpose, Justice Moldaver wins hands down. And even if the legal issue could have gone either way, the Court ought to have considered the consequences of its decision and reasoning, which in my view clearly weighed in favour of allowing the nomination of federal court judges to the Québec seats of the Supreme Court. Of course, it is the federal government and the Prime Minister who are ultimately responsible for the shambles that Justice Nadon’s nomination has become. They wanted to pick a fight with the legal community ― they got it, and the country will be worse off as a result. But the same can be said of Québec’s friends and defenders, who will have ended up undermining the province’s representation on the federal courts and perhaps the Supreme Court too, not to mention making impossible the enactment of legislation requiring judicial bilingualism which many of them deemed desirable or even necessary. Be careful what you wish for.

Le langage de la justice

Un article paru sur le site de Radio-Canada parle d’une étude réalisée par un avocat, Mark Power, de Heenan Blaikie, pour le compte de la Fédération des associations des juristes d’expression française de common law, portant sur la constitutionnalité de nominations de juges unilingues à la Cour suprême. Selon Me Power (ou du moins selon l’article de Radio-Canada, puisque l’étude n’est pas disponible en ligne) de telles nominations contreviendraient à la garantie du bilinguisme officiel enchâssée à l’article 16 de la Charte canadienne des droits et libertés. Dans la mesure où la chance d’être compris par un juge de la Cour suprême dépend de la langue dans laquelle on s’adresse à lui, tous les juges parlant l’anglais, mais pas tous parlant le français, les deux langues officielles ne sont pas égales. Certes, la Cour dispose de traducteurs et d’interprètes, mais ceux-ci feraient des erreurs et ne seraient donc pas des substituts adéquats à des juges bilingues. Ce raisonnement et cette conclusion, à supposer qu’ils sont bien présentés par Radio-Canada, soulèvent plusieurs questions.

Il y a des questions pratiques, celle par exemple de savoir ce qui constitue un niveau de bilinguisme adéquat. Ainsi, l’article mentionne deux juges unilingues. (Il s’agit des juges Rothstein et Moldaver.) On juge donc le niveau de bilinguisme de la Juge en chef suffisant, mais l’ayant entendu prononcer un discours et répondre aux questions en français, je me demande si je ne préférerais pas, si je devais plaider en français devant elle, qu’elle ait recours aux services d’un interprète. Son français n’est pas mauvais―il remarquablement bon même, considérant qu’elle ne l’a appris qu’après sa nomination à la Cour suprême―mais il est loin d’être parfait, et je serais peut-être rassuré si les détails de ma plaidoirie lui étaient traduits par un spécialiste.

Il y a des questions d’interprétation constitutionnelle. Certaines de celles-ci concernent l’enchâssement du processus de nomination des juges de la Cour suprême dans la Loi constitutionnelle de 1982. L’alinéa 42(1)(d) de celle-ci semble élever “la Cour suprême du Canada” au rang constitutionnel, mais la Loi sur la Cour suprême ne fait pas partie de la liste de lois faisant partie de la Constitution du Canada selon l’Annexe de la même Loi constitutionnelle, si bien qu’on ne sait pas vraiment si la Cour suprême est enchâssée ou non. Cependant, si elle l’est, la règle selon laquelle une partie de la Constitution (en l’occurrence, l’article 16 de la Charte) ne peut modifier ou invalider une autre (les règles concernant les qualifications et la nomination des juges de la Cour suprême) empêcherait la conclusion que la nomination de juges unilingues est inconstitutionnelle. Une autre question d’interprétation concerne le libellé du paragraphe 16(1) de la Charte, qui dispose « [l]e français et l’anglais … ont un statut et des droits et privilèges égaux quant à leur usage dans les institutions du Parlement et du gouvernement du Canada ». La références aux « institutions du Parlement et du gouvernement du Canada » se retrouve aussi dans le texte de l’article 32 de la Charte, en vertu duquel celle-ci « s’applique … au Parlement et au gouvernement du Canada ». Or, cette disposition a été interprétée comme ne s’appliquant pas directement aux tribunaux, le Parlement et le gouvernement faisant référence aux branches législative et exécutive du gouvernement, et la branche judiciaire étant manifestement omise. Si les termes identiques utilisés par le constituant au paragraphe 16(1) de la Charte reçoivent la même interprétation, alors il faudrait conclure que cette disposition est silencieuse quant au statut des langues officielles devant les tribunaux.

Et puis il y a la question de principe. Est-il raisonnable de nommer des juges bilingues de préférence à des juges unilingues mieux qualifiés―car c’est ce qu’exigerait l’introduction d’une exigence de bilinguisme? Selon Me Power, il y aurait un risque d’injustice résultant d’erreurs de traduction. Peut-être bien. Mais n’y a-t-il pas aussi un risque d’injustice résultant de la nomination de juges qui ne sont pas d’aussi bons juristes? Et ce risque-ci serait présent non seulement dans la petite proportion d’affaires plaidées en français où le vote d’un juge unilingue anglophone est déterminant, mais dans chaque dossier traité par la Cour suprême.

À qualité égale, un juge pleinement bilingue serait peut-être préférable à un collègue unilingue. Et encore. Comme je le mentionnais plus haut, la Juge en chef McLachlin n’était pas bilingue au moment de sa nomination, mais elle a appris le français. Idéalement, son exemple devrait inspirer ses collègues unilingues. Mais le plus important n’est pas que les neuf juges de la Cour suprême parlent tous le français et l’anglais. C’est qu’ils parlent tous le langage de la justice.

En Français S.V.P./In English Please

In 2008, the Township of Russel, just outside Ottawa, passed a by-law requiring any new commercial sign to be bilingual. An angry activist and a shopkeeper challenged the validity of the by-law. The Court of Appeal for Ontario has rejected their challenge, in Galganov v. Russel (Township), 2012 ONCA 409, released last Friday.

Before getting to the challenge itself, the court addressed the preliminary issue of Howard Galganov’s standing to bring it. Mr. Galganov neither lives nor carries on a business in the township, and is not personally affected by the by-law. At common law, he does not have standing. But subs. 273(1) of Ontario’s Municipal Act, S.O. 2001 c. 25, provides that an illegal by-law can be quashed on application of “any person”. That’s great, says the court, but “any person” isn’t just any person. “The words ‘any person’ in s. 273(1) of the Act mean ‘any person who has standing under the common law relating to standing'” (par. 15). The old presumption that legislation will not be interpreted to depart from the common law unless clear language indicates that it does still has some life in it.

Be that as it may, another applicant, Jean-Serge Brisson, has a shop in the township, which carries a unilingual French sign, so there is no question about his standing to challenge the by-law. His first claim was that the by-law was ultra vires the township, essentially because the Municipal Act does not include an explicit grant of power over language to municipalities. The court rejected that submission, saying that these days, grants of powers to municipalities are broad and general, and there is no need to look for such a specific authorization as Mr. Brisson claimed was necessary, and holding that the by-law at issue was authorized by par. 11(2)(5) of the Municipal Act, which provides municipalities with the power to make by-laws “respecting the … [e]conomic, social and environmental well-being of the municipality.” Mr. Brisson argued

that, instead of promoting the economic or social well-being of the municipality, the By-law detracts from it. This argument is based on the supposition that a commercial establishment with a bilingual exterior sign signals that it will be able to serve customers in both languages. If a commercial unilingual English establishment is compelled to post an exterior bilingual sign, customers will be misled and upset if they cannot be served in French (par. 33).

The court gave this claim short shrift, on the ground that it was not supported by evidence; indeed, there was expert evidence to the contrary. Actually, one can question whether it is the court’s role to venture on such an inquiry at all. No court would question whether an act of Parliament really tended to promote the “Peace, Order, and good Government of Canada” – it is enough that Parliament thinks it does. However, Parliament is sovereign within the competence defined by division of powers provisions of the Constitution Act, 1867, and subject to the Charter. A municipality only exercises limited delegated powers, so courts are justified in ascertaining whether municipal by-laws are within the bounds of the delegation. The problem here is that delegation is so vast that its terms cannot be policed without the courts’ inquiring into the wisdom of the legislation, which is something courts are not very good at, and ought to be (though perhaps they are not) uncomfortable with doing.

Mr. Brisson’s second claim was that the by-law was unconstitutional because it contravened the Charter‘s protection of freedom of expression. Following the Supreme Court’s decision in Ford v. Québec, [1988] 2 S.C.R. 712, which struck down Québec’s prohibition on commercial signs in languages other than French, the court accepted that the by-law did infringe freedom of expression as guaranteed by s. 2(b) of the Charter. However, it held that the by-law was saved by s. 1 of the Charter. Its objective, “the promotion of the equality of status of both French and English,” is pressing and substantial, and it is rationally connected to the objective. As usual, the real question is that of proportionality. Apparently, Mr. Brisson’s main argument on this point was that the by-law prevented people from having signs in a language other than French or English. But the by-law does no such thing, the court points out. “Persons engaged in commerce can use any language of their choice along with French and English (par. 80). Indeed it is rather shocking that much Mr. Brisson and his lawyers placed much reliance on this claim.

The court went on to add that “in the past, Brisson has chosen to express himself only in English; he now chooses to express himself only in French on his exterior sign while continuing to employ English in other aspects of his business. To require him to employ English on his sign in addition to French is a minimal impairment of his right to freedom of expression” (par. 83). That, it seems to me, is bad reasoning. What does it matter that Mr. Brisson chose to express himself in English in the past, if now he wants to express himself in French only? The court seems to be questioning his good faith, or to be contradicting its own holding that his freedom of expression has been infringed. But that is not its role. It has nothing to do with answering the question that the case actually raises: is forcing shopkeepers to express themselves in French and English, whether they want to or not, the least restrictive means open to the township of achieving its pressing and substantial objective of promoting the equality of status between French and English. The court’s judgment, in my view, does not actually answer that question.