Ted Morton is the author of Strong and Free: My Journey in Alberta Politics and The Charter Revolution and the Court Party. Josh Dehaas is counsel with the Canadian Constitution Foundation.
In 2023, Parliament passed Bill C-13, which changed the Official Languages Act to require that all future Supreme Court of Canada justices are able to understand English and French “without the assistance of an interpreter.” These six words now disqualify about 90 per cent of Canadians outside of Quebec from being appointed to the court that often has the final say on our rights and freedoms, as well as on federalism disputes.
Proponents argue that aspiring judges can simply learn French. But learning a second language is only possible for those who are immersed in it from a young age or who put in enormous efforts as adults. That difficulty is borne out in Statistics Canada data showing the rate of bilingualism among anglophones outside Quebec has barely budged, from 7.2 per cent in 2001 to 7.4 per cent in 2021.
Those in favour also say the change is necessary because francophones can’t otherwise get a fair hearing. But is that true? Is the rare mistranslation, easily corrected, really worth eliminating the vast majority of Canadians, including most Indigenous people in Canada, ethnic minorities, Western Canadians, and Atlantic Canadians, from consideration?
We have already seen how eliminating non-bilingual Canadians excludes many of the most qualified candidates. After Justice Michael Moldaver retired in 2022, Prime Minister Justin Trudeau skipped over dozens of members of the Ontario Court of Appeal and plucked the relatively inexperienced Justice Michelle O’Bonsawin from a lower court, in part because she spoke French. When a seat opened up last year owing to the resignation of Alberta’s Justice Russell Brown, Mr. Trudeau appointed Justice Mary Moreau, again from a superior court, largely because there are almost no court of appeal judges in Western Canada who speak French. The last three judges from Alberta – Mr. Brown, John Major and former chief justice Beverley McLachlin – would all have been disqualified by this new rule.
What’s more, Parliament appears to have ignored the Constitution when it made this change. Section 41(d) the Constitution Act, 1982, says that “the composition of the supreme court” cannot be changed without the consent of the House of Commons, the Senate and all 10 provincial legislatures; that last condition was never satisfied.
The only Supreme Court decision that has interpreted Section 41(d) is the 2014 Nadon Reference. That case involved the decision, by Stephen Harper’s Conservative government, to unilaterally amend Section 6 of the Supreme Court Act (SCA) to allow for the appointment of Federal Court of Appeal Justice Marc Nadon. Section 6 of the SCA says that at least one-third of the judges appointed must be from Quebec’s courts or “from among the advocates of that Province,” which would technically disqualify Mr. Nadon, as he was a former advocate in Quebec; Mr. Harper sought to change the language of the SCA to accommodate this. But the Court ruled that Section 6, despite being an ordinary statute, could not be amended even in that minor way without a constitutional amendment supported unanimously by the House, the Senate and all 10 provinces. “The clear intention” of s. 41(d), they wrote, “was to freeze the status quo in relation to the Court’s constitutional role” as it stood in 1982. The reference found the eligibility requirements in Section 6 of the SCA – along with Section 5, which lays out the general rules for Court appointees – had become part of Canada’s Constitution.
The Court also explained that Section 6 was part of a “historic bargain” meant to ensure that “Quebec’s distinct legal traditions and social values are represented on the Court.” What the Court didn’t say, but was implied, was that the other side of the bargain entitles English Canada to six judges that reflect those provinces’ legal traditions and social values. As Section 5 states: “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” Notably absent: a requirement that judges be able to understand French and English.
Pierre Poilievre’s Conservatives should commit to repealing this unconstitutional statute immediately if they form government. If they do not, then premiers from the English-speaking provinces should consider using their reference power to challenge it. Justice Malcolm Rowe will reach the court’s mandatory retirement age of 75 within the next five years, and four others are not far behind. If Mr. Poilievre does not act, he will find himself with a limited pool of candidates that does not include many of the most talented ones – a lose-lose for all Canadians, no matter which official language they speak.