Administering Constitutional Change: the Case of Bilingual Supreme Court Judges
I have written before about the constitutionality of Prime Minister Trudeau’s plan to reinvigorate the Canadian Senate. I commented that one of the odd consequences of the Supreme Court of Canada’s decision in Reference re Senate Reform,  1 S.C.R. 704 is that measures that “are not placed on a statutory footing are less likely to violate the Constitution”, an incentive to politicians to obfuscate about constitutional reforms.
Mr. Trudeau cannot be accused of obfuscation. Indeed, he has published the “mandate letters” supplied to his ministers. Of particular interest is the mandate letter received by Jody Wilson-Raybould, the new Minister of Justice. One of the items relates to the Supreme Court:
Engage all parties in the House of Commons to ensure that the process of appointing Supreme Court Justices is transparent, inclusive and accountable to Canadians. Consultations should be undertaken with all relevant stakeholders and those appointed to the Supreme Court should be functionally bilingual.
Of course, Ms. Wilson-Raybould may ultimately decide to memorialize all this in legislation, but for now the matter seems likely to be well down the list of legislative priorities. Rather, by setting out expectations about the appointment process in the mandate letter, the executive is attempting to shape the nature of the process. But is it constitutional to introduce a requirement of functional bilingualism?
The Supreme Court’s interpretation of the “composition of the Supreme Court of Canada” means it is doubtful. There is currently no bilingualism requirement as a matter of law or practice. In Reference re Supreme Court Act, ss. 5 and 6,  1 S.C.R. 433, a majority of the Court held: “Sections 4(1), 5 and 6 of the Supreme Court Act codify the composition of and eligibility requirements for appointment to the Supreme Court of Canada as they existed in 1982″ (at para. 104). Accordingly, “any substantive change in relation to those eligibility requirements is an amendment to the Constitution in relation to the composition of the Supreme Court of Canada and triggers the application of Part V of the Constitution Act, 1982” (at para. 105). Unanimous agreement of the federal and provincial governments would thus be necessary to change the eligibility requirements.
With great respect for the opposing view — offered here from pp. 105-109 by Hugo Cyr — I find it difficult to see how the addition of a bilingualism requirement does not effect a “substantive change” to the “eligibility requirements for appointment”. If needs be, I will bite the reductio ad absurdum bullet Hugo presents and accept that legislating a literacy or sanity requirement would also necessitate a constitutional amendment (though these are at least arguably implicit in the existing criteria in a way that bilingualism simply is not).
Again, however, the uncertain relationship between form and substance in the Supreme Court’s constitutional amendment jurisprudence creates some ambiguity. Like Hugo, I support a functional bilingualism requirement for Supreme Court judges. Hearing cases from Quebec (and, sometimes, from other French-speaking areas of Canada), in both criminal and civil matters, often involves reviewing untranslated first-instance or administrative records. Relying on French-speaking clerks (although there is no requirement for the judges to hire one or more Francophones) is far from an ideal means of guaranteeing that individuals get a fair and full hearing from all nine judges. Moreover, functional bilingualism more readily permits judges and counsel to fully canvass relevant issues at oral argument. It can thus certainly be said that a bilingualism requirement would enhance the functioning of one of the pillars of Canada’s constitutional structure.
Yet relative to Senate appointments, where prime ministers have always received guidance from wise elders of one type or another and Mr. Trudeau’s reform aims to make transparent and improve the process of receiving expert advice, the eligibility requirements for Supreme Court appointments are set out in statutory provisions which now have constitutional status. Adding to them interferes much more with constitutional form than does streamlining the process for Senate appointments. This is not to “slavishly” follow form “at the expense of substance”, but to recognize that even substantively laudable measures cannot go so far as to eliminate formal provisions of the constitution.
Whatever one thinks of whether a bilingualism requirement requires a constitutional amendment or not, an undoubted consequence (presumably unintended) of the Supreme Court’s approach is that informal change through administrative law means is much safer from challenge than formal change to enacted laws and constitutional provisions. The decidedly odd position is that changes made in the dark are more likely to succeed than changes made in the full light of day. Good luck challenging the validity of a paragraph in a mandate letter. At the very least, however, Mr. Trudeau’s commendable transparency means that these questions can be debated openly.
This content has been updated on November 16, 2015 at 21:55.