Blog of the International Journal of Constitutional Law

Bilingualism on the Supreme Court of Canada

Should Canadian Supreme Court justices be bilingual? That question is the latest battleground in the enduring debate on language rights and representation in Canada.
The Supreme Court Act requires that at least three of the nine Canadian Supreme Court Justices come from Quebec, which has historically been the heart of Canada’s French-speaking community. Justices from Quebec (and New Brunswick) have for the most part tended to be bilingual but appointees from elsewhere have not.
This perhaps helps explain why federal Member of Parliament Yvon Godin has introduced a bill mandating bilingualism on the Supreme Court of Canada.
A few weeks ago at the end of March, the House of Commons approved that bill amending the Supreme Court Act to make bilingualism a requirement for future Supreme Court justices.
The battle lines were drawn quite sharply on this bill: the governing Conservative Party did not support the bill but the opposition parties—namely the Liberal Party, the NDP, and the Bloc Québécois, which together constitute a majority in the House—threw their full weight behind it.
The bill is now in the hands of the Senate.
As the Senate begins its deliberations, many observers have expressed their opposition to the bill. Perhaps the most notable among them is John Major, a former Supreme Court justice, who suggests that bilingualism may come at the expense of competence: “To think you can get nine people fully bilingual–you might find them but you’re not going to find the most competent candidates,” says Major.
Another influential commentator—Phil Fontaine, former head of the Assembly of First Nations—has called the bill “elitist” because it is not, in his view, attentive to the richness of the diversity of Canada.
Returning now to the fate of the bill in the Senate, party affiliation cannot help us predict how the Senate will vote on the bill for at least two reasons. First, Senators tend to exercise more independent judgment than their counterparts in the House of Commons, who are often constrained by the convention of Cabinet and party solidarity. Moreover, as an institutional matter, party affiliation in the Senate does not reflect the composition of the House of Commons: the Conservative Party holds 51 Senate seats, the Liberal Party holds 49 seats, the Progressive Conservative Party (which is not represented in the House of Commons) holds 2 seats, while two Senators have chosen to designate themselves as “independent” and another remains unaffiliated.
It therefore remains unclear, for now, what the future holds for the Supreme Court bilingualism bill in the Senate.


8 responses to “Bilingualism on the Supreme Court of Canada”

  1. Modicum Avatar

    Two questions come to mind:

    (1) Doesn’t passage of an important bill like this, against the opposition of the government, mean that the cabinet has lost the confidence of the House? The position of the government must be greatly weakened at least.

    (2) Would the Senate really veto a bill that has been approved by the elected chamber, and how would they justify it? If they did veto would the Commons have any recourse? (I understand that, strictly speaking, there is no method for overriding the Senate)

  2. Richard Albert Avatar

    Thank you for your comments, Modicum.

    First–on your question of confidence–the bill was not proposed by the Government but rather by a Member of Parliament from an opposition party called the New Democratic Party.

    Members of Parliament who do not sit in the Cabinet may propose what is known as a “Private Member’s Bill.” Typically, these bills have little chance to become law. But this bill may very well become one of the rare exceptions.

    As a Private Member’s Bill, it is therefore not a matter of confidence.

    Interestingly, though, I suspect that even if the Government had proposed this bill, the Prime Minister would not have designated it a matter of confidence–precisely because of the controversy he knew it would have aroused. In any event, matters of confidence tend usually (though not always) to pertain to budgetary items.

    On your second question, the Senate may absolutely veto a bill that has been duly passed by the House of Commons. Though it would be controversial–precisely for the reason toward which you’ve gestured–there are several important precedents for this in modern Canadian political practice.

    One such relevant precedent arose in the 1980s in the context of an abortion bill that the Senate vetoed following its approval in the House. I discuss the history of this bill and its demise on pages 54-58 in my article on “Protest, Proportionality, and the Politics of Privacy,” which is available here:

    Thanks for your continued readership, Modicum.

  3. Accursius Avatar

    Call me stupid, but how is it possible to live in Canada and not to speak two languages? I would guess that both languages are mandatory in school.

    On a side note, there is for some time a great problem with “only French” at the European Court of Justice, and it will certainly become worse when the Union moves into Balkans

  4. Miguel Schor Avatar

    Richard: great post. One argument that has been made is that it was a mistake when the Charter was patriated not to change the appointments process to include participation by the legislature. Some commentators have argued that the appointments process would inevitably become politicized as has occurred, for example, in the United States. Is this bill a step in that direction? Did political factions care about this issue prior to the patriation of the Charter in 1982?

  5. Richard Albert Avatar

    Thank you for your comments.

    Accursius: What you describe about the European Court of Justice is interesting. I’ll look forward to reading more about it. Please continue to keep us posted on those developments.

    Miguel: You’re right to raise the appointment process as a point of contention. When the Charter was written in 1982, the question of appointments was discussed, but it did not get too much traction. There are two reasons for this. First, even critics at the time agreed that the Prime Minister earned the right as head of government to appoint whomever she chose to the bench. But perhaps more importantly, second, the Notwithstanding Clause (which authorizes legislatures–both federal and provincial–to suspend the application of a judicial decision) was designed to serve as a check against the judicial power and moreover to insert a participatory dimension into the judicial process.

    But since 1982, we’ve seen two things happen to undermine the founding design.

    First, the Prime Minister has succumbed to political pressure that has mounted in favor of some form of legislative participation in the judicial appointment process. Specifically, the Prime Minister has recently decided to subject Supreme Court appointees to review by a parliamentary committee in a public hearing–but that hearing comes only after the fact of appointment. It therefore carries little consequence.

    Second, the Notwithstanding Clause has lost its teeth (one might ask whether it ever had any to begin with), and has been invoked infrequently by legislatures (and indeed never by the federal parliament) to counteract a judicial decision.

  6. Miguel Schor Avatar

    Richard: why do you think that the notwithstanding clause lacked any teeth to begin with? It was part of the deal that made the Charter possible since the provincial premiers wanted it and had some leverage. There is considerable political (and academic) pressure not to use it but that could change if there was sufficient anger at a Supreme Court decision. I wrote an article where I argued that the notwithstanding clause operates as a safety valve. If interest groups arose to contest Supreme Court decisions (as has occurred in the US, for example), they would find the notwithstanding clause a more direct means of achieving their policy goals than appointments.

  7. Modicum Avatar

    Perhaps the notwithstanding clause encourages the courts to exercise self-censorship, avoiding decisions that are so unpopular as to lead to the clause being invoked. This would mean that the clause does have teeth but that it’s effect is invisible and hard to measure.

  8. Richard Albert Avatar

    Miguel, I agree with your view that the Notwithstanding Clause can operate as a safety valve–I like the way you put that. The question that arises, though, is this: a safety valve from what? Is it a protection against the perceived vagaries of the judicial process? If yes, then one counterpoint may be quite simply that the judicial role is itself a safety valve against the vagaries of the democratic process. This is all fascinating to me.

    But with particular respect to the Canadian constitutional design, your view is incontrovertible: the original design of the Notwithstanding Clause was intended to give legislators, not judges, the final word in matters of constitutional interpretation (with a few exceptions that are outlined in the actual text of the section 33 of the Charter).

    Modicum: Ah, yes. Absolutely. That is the argument that the Notwithstanding Clause has not really fallen into desuetude; rather, it remains as potent as ever. Interesting. That is a sophisticated argument that I’ve heard spoken several times and mentioned in passing in the popular press, but I have not read any scholarly work on this point. Any references would be appreciated.

    Thanks, both of you.

Leave a Reply

Your email address will not be published. Required fields are marked *