Bilingualism rule squeezes selection of a new Supreme Court justice

  • September 28, 2023

By The Editorial Board for The Globe and Mail

An ability to understand English and French at a high level is certainly among the important attributes when considering potential jurists for appointment to the Supreme Court of Canada.

Whether bilingualism should be a prerequisite for the top court, despite a recent move to make it so, remains an open debate. Prioritizing fluency in both official languages restricts the number of otherwise qualified candidates. It could also hinder efforts to improve judicial diversity.

In June, a bill to update the Official Languages Act received royal assent. The federal Liberals said the measures are meant to protect the French language. This space has argued the changes are too focused on promoting French and not enough on the original goal of the act, to ensure English and French have equal status.

Among the changes is a new language requirement for the Supreme Court. All judges on the top court who hear a case in French or English now must be able to understand the language without the help of an interpreter.

This legal shift is the culmination of years of debate. The Liberals had already made bilingualism a de facto requirement in 2016. This space has long been wary of bilingualism as a prerequisite for the Supreme Court and favoured keeping it among the key factors when choosing a new judge. One of the main concerns was whether such a rule would reduce the list of strong candidates.

That’s exactly what’s happened.

This year saw a surprise opening on the Supreme Court, after Russell Brown resigned in June. He was facing a public inquiry following allegations of harassment. A decision on his replacement by Prime Minister Justin Trudeau is expected soon. The Supreme Court’s fall session begins Oct. 11.

By convention, Mr. Brown will be replaced by someone from Western Canada. While the Liberals had made bilingualism a clear requirement, anyone from the West with an ambition to eventually be in contention for the Supreme Court would have figured they had some years to bolster their language skills. Mr. Brown could have served until 2040. Sheilah Martin, the Supreme Court’s other Western judge, can serve until 2031.

Instead, the Liberals have forced themselves to choose from a small pool of candidates.

In June, The Globe reported there were fewer than a dozen strong candidates. One report suggested there were only five fully bilingual judges who worked full-time among 48 appellate judges in the West. Since the early 1980s, provincial and federal appeal courts have been the source of 26 of 32 new picks for the Supreme Court. This month, The Globe reported that few appellate judges in the West even applied for the Supreme Court opening.

The most important attribute the country should want in a Supreme Court judge is a leading legal mind, rather than someone who is immediately bilingual to the standard necessary to conduct work on the top court. The issue also intersects with other important factors such as diversity. In 2020, the Canadian Bar Association called on Ottawa to appoint more judges who are Black, Indigenous and people of colour. Indigenous leaders have said the bilingualism requirement is too strict.

Indeed, the rule narrows, rather than widens, any search that prioritizes broader diversity.

In 1988, Brian Mulroney’s government revised the Official Languages Act. The changes included a requirement for institutional bilingualism on federal courts. That didn’t mean every single judge had to be bilingual but that federal courts had enough bilingual judges to do the work. The Supreme Court was excluded from the change.

Debate over whether it should be a requirement for the top court ignited again during Stephen Harper’s time as prime minister. He appointed two justices who were not bilingual. Numerous unsuccessful private members’ bills followed, aiming to codify the English-and-French requirement.

That the Supreme Court can conduct its business in both official languages is not in question. Nor is the importance of bilingualism among the valuable skills for judges to be considered for the top court. But concerns about making it a requirement have been borne out in recent years and especially with the latest opening. The change has clearly limited the field of jurists Ottawa was able to consider for one of the most important jobs in the country.