Should Supreme Court Justices Have to be Bilingual?

In a bilingual country such as Canada, effective statutory interpretation demands a command of both official languages. Indeed, it is commonplace for judges and lawyers alike to either substantiate or problematize a particular line of statutory interpretation in one official language by looking to the text of the statute in the other. The prevalence of this mode of legal argument is made plain by looking at the two most recent Supreme Court of Canada decisions, Montréal (City) v Quebec (Commission des droits de la personne et des droits de la jeunesse), [2008] 2 SCR 698 [Montréal] and R v SAC, [2008] 2 SCR 675 [SAC].

In Montréal, Deschamps J. pointed to the use of the term "pardon" in the English version of the Criminal Records Act, RSC 1985, c C-47 to refute the appellant's argument that the use of the word "réhabilitation" in the French version did not refer to "pardons."

Similarly, in SAC, Deschamps J. contrasted the English word "history" and the French word “après” in their respective versions of s. 39(1)(c) of the Youth and Criminal Justice Act, SC 2002, c 1 [YCJA]. She found that while "history" was amenable to either a broad or narrow interpretation of criminal convictions, "après” connoted the latter; it stipulated only the inclusion of those convictions entered prior to the offence under consideration.

On the other hand, Deschamps J. explained, the use of the English word "pattern" is narrower then “plusieurs,” its French counterpart in s. 39(1)(c) of the YCJA. Unlike "plusiers," "pattern" does not imply a specific threshold number of offences, but rather creates a need for courts to discern the existence of past behaviour that is indicative of an escalation in criminality. As such, to demonstrate a "pattern" within the meaning of s. 39(1)(c) of the YCJA, the Crown (Deschamps J. found) must adduce evidence of at least three prior findings of guilt, (or alternatively two that are sufficiently similar to disclose a "pattern"). By considering both "après” and "pattern," Deschamps J. was able to glean from the "shared meaning" of s. 39(1)(c) of the YCJA, an interpretation that "comports with Parliament’s intent to reduce the youth incarceration rate, and is also clearly more favourable to the accused whose liberty is at stake."

Inasmuch as they illustrate the usefulness of cross referencing statutes in each official language, Montréal and SAC are arguments in favour of mandating bilingualism in the Supreme Court of Canada. At bottom, those without a strong command of both official languages, (yours truly included), are not as well positioned to engage in effective statutory interpretation; their arsenal of legal arguments lacks a technique that has quite clearly established itself as a mainstay in Canadian jurisprudence.

For proponents of mandatory bilingualism in the Supreme Court of Canada, the timing of Montréal and SAC could not have been better. The two decision come on the heels of Liberal and NDP bills advocating an increased level of bilingualism in the Supreme Court of Canada.

The Liberal bill, tabled by MP Dennis Corderre, Bill C-548, "An Act to amend the Official Languages Act (understanding the official languages — judges of the Supreme Court of Canada)", received first reading on May 15, 2008. Bill C-548 proposes to amend s. 16 of the Official Languages Act, RSC 1985, c 31 (4th Supp). Section 16 of the Act establishes an obligation on the part of federal courts (with the notable exception of the Supreme Court of Canada) to ensure that all judges who hear proceedings are able to do so in either official language, as requested, without the support of an interpreter. Mr. Corderre's bill proposes to expressly include (instead of expressly exclude) the Supreme Court of Canada as a party to this obligation.

The Liberal Bill was recently criticized by NDP Critic for Official Languages and MP Yvon Godin. Ìn Mr. Godin's view, "the Liberals’ proposed amendment to the Official Languages Act would not guarantee that the nine Supreme Court of Canada judges could hear a case without an interpreter and would allow for the appointment of four unilingual judges." I am not entirely certain of the legitimacy of Mr. Godin's criticism, (it is arguable that Mr. Corderre's bill would in fact necessitate that all judges are in fact bilingual).

At any rate, Mr. Godin tabled a Bill C-559, "An Act to amend the Supreme Court Act (understanding the official languages)", which received first reading on June 5, 2008. Mr. Godin's Bill proposes to amend s. 5 of the Supreme Court Act, RSC 1985, c S-26 to make it a requirement for judges appointed to the Supreme Court of Canada to understand both official languages without the aid of a interpreter.

With respect to the next Supreme Court of Canada appointment, whether or not either of the above bills pass, it will most likely be a moot point. Given the political pressure being placed on the Harper government from both the Liberals and the NDP, it seems likely that the Supreme Court of Canada Appointments Advisory Committee will, for reasons of political expediency, produce a list of exclusively bilingual Supreme Court of Canada nominees. That said, making bilingualism mandatory in the Supreme Court of Canada would help to ensure a court that is able to engage in effective statutory interpretation.