National Post (National Edition)
DOING THE END RUN
TRUDEAU LIBERALS GO AROUND JUSTICE MINISTER AGAIN
Two years ago this month, the Justin Trudeau government was rocked by the SNCLavalin scandal. Inappropriate attempted influence from the Prime Minister's Office in the prosecution of a Quebec engineering company seriously damaged the prime minister's image. The scandal cost the government two of its best-performing cabinet ministers in Jody Wilson-Raybould and Jane Philpott. It also resulted in Trudeau coming perilously close to winning only a single mandate.
One might have thought that the government would now realize that the minister of justice and attorney general is not “just another cabinet post.” But on Friday came another instance of the government seemingly ignoring this distinct role. Bemusingly, this was part of an effort to protect the interests of French-speaking Canadians — by circumventing a Supreme Court of Canada decision that sought to protect the interests of Quebeckers and, in doing so, may have done the opposite.
Official Languages Minister Mélanie Joly said she will bring several initiatives to protect and strengthen the status of the French language. Given that French is a minority in Canada, to say nothing of North America, this is understandable, even laudable. But snuck in among Joly's myriad proposals is a requirement that Supreme Court judges be bilingual in French and English.
This is remarkable for multiple reasons.
First and foremost, this is a likely change in the eligibility requirements for membership on the Supreme Court. In the famous 2014 Nadon Reference, the Court held that three “Quebec seats” on the Court must filled by those who are, at the time of their appointment, members of the province's bar or superior courts. Marc Nadon, a former Quebec lawyer with decades of practice experience in Quebec before serving on the Federal Court and Federal Court of Appeal for two decades, was held to be ineligible.
But the Nadon Reference did not merely hold that Justice Nadon was ineligible due to the language of the Supreme Court Act. The court went further and held that any legislative amendment to make him eligible would be unconstitutional.
As such, in constitutionalizing the “eligibility requirements,” which certainly did not include bilingualism, the Court may have foreclosed making bilingualism a requirement to serve on the Court. To be sure, some observers have suggested that a French-English bilingualism requirement would not fall within the ambit of what was constitutionalized in the Nadon Reference. But this is at least a serious matter for debate.
Second, and in the vein of the SNC-Lavalin scandal, this announcement was made by the minister of official languages — not Minister of Justice and Attorney General David Lametti. Maybe he is involved behind the scenes.
But a change to court composition not being introduced by him is odd, to put it mildly. It seems to be an attempt to underplay the legal nature of the change.
Joly's proposal suggests that changes to eligibility criteria will “take into account” Supreme Court precedent on eligibility requirements. But if, by having another cabinet minister effect this change, the government is seeking to avoid Lametti's introducing and thus being questioned upon constitutionally suspect legislation, it circumvents his obligation to ensure all legislation is constitutional.
There is no possibility that David Lametti, a McGill Law professor, is unaware that an attempt to change the eligibility requirements for Supreme Court membership would be constitutionally suspect.
If he has indicated discomfort with introducing the legislation because of its dubious constitutionality, that is even worse, especially for a government that has previously sought to disregard an attorney general's views for political gain in Quebec.
None of this is to take issue with the desirability of having Supreme Court judges being passably, if not fluently, bilingual. In a bilingual country, there is a serious problem when a party is assigned a judge who cannot understand pleadings and submissions in an official language. Nuance is lost with even the best translators and interpreters. On the other hand, one might query whether these considerations are in tension with the goal of diversifying the bench. Within Canada's English-speaking provinces, French-English bilingualism is disproportionately found among privileged Canadians of European ancestry.
Many Indigenous Canadians, particularly in Western and Northern Canada, may be bilingual as they speak an Indigenous language as well as English — but have never had the opportunity to learn French. Finally, the level of bilingualism that is required to overcome nuance lost with the best translation and interpretation is extremely high, perhaps something likely to be achieved only by those who grew up in bilingual homes.
But the desirability of having bilingual Supreme Court judges is beside the point. There is a serious question about the constitutionality of any legislative attempt to limit to Supreme Court appointments to only bilingual judges. And to seemingly bypass Lametti in an effort to enact such a requirement is deeply problematic, especially for the Trudeau Liberals which nearly sank themselves by attempting to go around the previous attorney general.
A final paradox is worth noting. The Nadon Reference is the reason to doubt the ability to impose a bilingualism requirement on Supreme Court judges. This decision, which followed pushback against Nadon's appointment, has been seriously queried on constitutional and statutory interpretation grounds. But it could be most persuasively defended as an attempt to protect Quebec's interests on the highest court through ensuring that the Quebec representatives on it come from the province's bar or superior courts.
But a — perhaps unintentional — consequence of the decision may be precluding the possibility of making bilingualism a prerequisite for appointment to the Court.
Taking this possibility off the table hardly serves Quebec's interests. One suspects that many Quebeckers would prefer that all Supreme Court judges be bilingual, even if one of the “Quebec seats” is filled by a former Quebec lawyer serving on the Federal Court of Appeal, than having Supreme Court judges who do not understand the French language, even if all three “Quebec seats” are filled by those appointed directly from Quebec's bar or superior courts.
So to litigators and other legal activists: be careful what you wish for. The shield you are granted today may be the sword that injures you tomorrow. In the constitutional realm — where ordinary legislation cannot overturn ill-advised court decisions — this concern is even more acute. The victory for Quebec's interests in Nadon may now be the impediment to protecting those same interests.