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Original article: https://theconversation.com/bilingualism-and-merit-go-hand-in-hand-at-the-supreme-court-of-canada-248975
Influential voices in the Canadian public sphere have been criticizing the 2023 amendments to the Official Languages Act (OLA) that require federal courts, including the Supreme Court of Canada, to be able to hear cases in English and French without the assistance of an interpreter.
Some of them argue that requiring all Supreme Court judges to be bilingual is overly stringent because it excludes jurists who don’t speak both official languages. Others argue the bilingualism requirement is an unconstitutional change to the court’s composition.
As professors of law and political science, we carry out research on access to federal institutions in both official languages. In our view, these criticisms plainly distort the historical, practical and constitutional realities of bilingualism in Canada’s legal system and at the Supreme Court.
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Misconceptions about bilingualism
The 2023 amendments to the OLA are consistent with Parliament’s broader vision for the Supreme Court.
When the OLA was last reformed by Brian Mulroney’s Conservative government in 1988, Parliament recognized that the court’s exemption from the bilingualism requirement would be temporary to give Canada’s legal profession time to adapt. The recent amendments reflect this earlier legislative intent and fulfil that aspiration.
THE CANADIAN PRESS/Justin Tang
Critics erroneously claim the bilingualism requirement would have disqualified Alberta judges, such as former chief justice Beverley McLachlin and justice Russell Brown. This is untrue: both are fully bilingual and comfortable working in both official languages. Notably, McLachlin became bilingual as an adult, as did Justice Malcolm Rowe, the first Supreme Court judge from Newfoundland and Labrador.
Today, all nine Supreme Court judges are fluent in English and French, proving that bilingualism is neither an impossible standard to meet nor a barrier to appointing qualified candidates.
The pool of bilingual jurists in Canada is much larger than the critics suggest. Many lawyers in Western Canada acquire proficiency in both official languages through the excellent bilingual programs offered by the law faculties of the University of Ottawa, the University of Manitoba, the University of Saskatchewan and the University of Calgary.
Statistics on bilingualism in the general population are not representative of the legal profession, where this skill is both sought after and actively cultivated.
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Equity and inclusion commitments
Contrary to what the critics claim, bilingualism is not an impregnable barrier to Supreme Court appointments. On the contrary, it encourages jurists to embrace Canada’s linguistic duality in order to serve all Canadian litigants in both official languages.
This standard reflects Canada’s commitment to equity and inclusion in a bilingual legal system. Bilingual current and former judges show that acquiring this skill is reasonable and achievable for those who aspire to sit at the judiciary’s highest level.
The critics wrongly assert that the OLA’s new bilingualism requirement contravenes provisions of the 1982 Constitution Act,. This claim does not withstand analysis, as this provision protects the “composition of the Supreme Court of Canada,” not the eligibility requirements for judges.
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The 2023 OLA amendments do not alter the composition of the Supreme Court; rather, they make the court more equitable by ensuring all judges can fully contribute to the administration of justice.
The critics’ analysis of the 2014 Nadon case is also ill-founded. That decision concerned the preservation of Québec’s representation and distinct legal traditions at the Supreme Court.
The bilingualism requirement in the OLA supports this objective by ensuring that judges can deal with cases from both the common law and civil law traditions in their language of origin, thereby reinforcing the court’s constitutional role in a bilingual and bijural legal system.
An essential part of Canada’s legal system
The critics also argue that judicial bilingualism is a baseless whim. The opposite is true.
Canada’s Constitution requires Canada’s justice system to be administered and accessible in both official languages. Federal statutes — like many provincial and territorial laws — are enacted in both English and French, and both versions are equally authoritative.
Cases brought before the Supreme Court often include key documents in their original language that are not translated for unilingual judges (such as documentary evidence, trial transcripts, and factums). Without bilingual skills, judges risk missing essential nuances, in turn compromising their ability to fully understand the arguments before them and, ultimately, render fair decisions.
Massive support for bilingualism
THE CANADIAN PRESS/Ethan Cairns
The critics urge Pierre Poilievre’s Conservatives to repeal the OLA’s bilingualism requirement if they form the next government. In doing so, they seem to ignore the fact that Poilievre and his party unanimously supported Bill C-13 and the new OLA.
The House of Commons passed the bill in May 2023 with the overwhelming support of all parties: 301 MPs voted in favour, while only one Liberal MP voted against. This consensus indicates widespread recognition of the importance of strengthening bilingualism within federal institutions.
The Supreme Court’s bilingualism requirement demonstrates Canada’s commitment to linguistic and legal duality. It is aligned with the country’s constitutional principles and decades of policy development. Far from being an exclusionary constraint, it sets a merit-based standard that ensures judges can interact meaningfully with Canadians in both English and French.