Bilingualism and bijuralism at the Supreme Court of Canada.

• Author: Shoemaker, Matthew

Section 5 of the Supreme Court Act states "Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province." Other than a legislated requirement for three judges to be members of the Quebec Bar, there are no other qualifications. In June 2008, Bill C-559 was introduced by Yvon Godin, MP for Acadie-Bathurst. It required that candidates for the Supreme Court may be appointed only if he or she understands French and English without the assistance of an interpreter. Although the Bill did not become law, this article shows that bilingualism for the Court is a highly controversial topic. It also argues that a more important issue, bijuralism, was largely ignored in the recent debate. The author believes that Canada would be better off it the debate about bilingualism included a debate about bijuralism.

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Ask most people in Canada about bilingualism, and chances are you will elicit an opinion, whether positive or negative. Ask people about bijuralism and chances are you will elicit a confused look. Bilingualism is covered in the media, debated regularly in Parliament and taught in schools. Few in Canada, outside the legal field, would even know Canada is a bijural country with nine common law provinces and one civil law province, Quebec.

Historical Context

The Supreme Court bilingualism debate, which only dates back to the introduction of Bill C-559 in 2008 is much more recent than the issue of bijuralism which finds its roots in the Quebec Act of 1774. The Act was passed shortly after the French were defeated by the British in the Seven Years War. The British granted the Quebecois the right to use their traditional system of civil law while imposing common law in fields in which they wished for the law to be uniform, such as criminal law. Thus, Quebec and the rest of Canada have had different legal systems for well over 200 years.

Upon Confederation in 1867, the provinces maintained the right to legislate in the areas of "Administration of Justice in the Province." Parliament meanwhile maintained the right to govern the criminal law and the right to establish a "General Court of Appeal for Canada".

In 1875, the Supreme Court was established under Prime Minister Alexander Mackenzie. Initially proposed by Prime Minister MacDonald, it was Mackenzie's bill that eventually engrained Quebec's unique legal system. This was achieved by mandating that two of the six Supreme Court judges be from the Quebec bar.

Since 1949, when leave to appeal to the Judicial Committee of the Privy Council was abolished, the court increased to nine judges with the required number from the Quebec bar increasing to three.

Arguments over Bill C-559

Mr. Godin justified his bill by recounting a story of a lawyer he knew from New Brunswick. The lawyer had argued a case in front of the Supreme Court and later watched the arguments on CPAC. The arguments seemed incomprehensible when translated. This, Mr. Godin argued, presented a situation where, had the court split on a 5-4 decision, the lawyer would have been left wondering whether any judge decided the issue based on a misunderstanding in the translation. Godin argues that the only way to potentially eliminate this problem is to ensure that judges are fully bilingual, allowing them to catch legal nuances that may be otherwise lost in translation.

Retired Justice John Major makes the counter-point that the pool of candidates eligible to be appointed to the bench, specifically from Western Canada, would be reduced to an unacceptable level.

Ina linguistically divided country you'll get someone who may be bilingual, but not the most competent. This is a misplacing of priorities; there is no substitute for competence. People's lives depend frequently on what the Supreme Court says. (1)

Mr. Godin's response to this argument has been that there are "33 million people in Canada, you can't say that you won't find 9 bilingual people" (2).

While it is certainly true that there are bilingual lawyers from each province, it does not take into account the fact that they may not possess the other skills required to be Supreme Court judges. However, Mt. Godin's argument has received a boost from former Supreme Court Justice Claire L'Heureux-Dube who argues this is a matter of justice. Justice L'Heureux-Dube believes that there is a double standard in appointments since no unilingual francophone has ever been appointed to the bench.

The Chief Justice, who generally refuses to comment on any issue which could potentially come before the court, stated in an interview with the Australian Broadcasting Corporation that it is a decision best left to legislators. She refused to comment on the proposed legislation but added that "whatever the decision may ultimately be ... our court will continue to offer services and function in both languages, as is, of course, required." (3) She has made it clear though in other interviews, that she believes the court currently functions "fully bilingually'.

Bijuralism does not form part of the present debate, but when questioned about having bijural judges rather than bilingual judges, former Justice Minister and Liberal MP Irwin Cotler stated that the Court presently has a good enough civil law presence. He stated that the legislated requirement for three Quebec judges ensures that there is "mandatory expertise on...