Our Top Court, Our Top Values – Separate, Apparently | By Stéphane Erickson

The recent nomination of Justice Marc Nadon to the Supreme Court of Canada has yet again stirred the pot. Don’t misunderstand: Indeed, Justice Nadon is a formidable candidate, and being a humble law student myself, I would never question his merit or competency at law.

But the question that has engulfed the Supreme Court goes beyond the individual “merit” of the nine.

In Canada, most government appointed public positions are mindful of Canadian values. For example, while it may not be inscribed by law (not yet), there is a tradition that the position of the Governor General of Canada alternate between a Francophone and Anglophone. In recent years, the Queen’s appointed representative to Canada has appreciated the representation of women and ethnic minorities as well. In Senate appointments, the government should strive to assure the representation of minorities and historically disfavoured groups in office, and thus promote Canada’s core values of federalism, multiculturalism, protection of minorities, bilingualism, gender equality, and so forth. Finally, in ministerial shuffles, governments have traditionally been criticized when they fail to reasonably portray Canada’s values and realities through the face of public office.

The government, as we all know, appoints the Supreme Court justices in accordance with the Constitution. It therefore begs the question: should the Supreme Court also be asked to mirror Canadian values and realities? The answer appears to be iffy – at best.

The Supreme Court is already bound by law to welcome three judges from Québec in order to assure the bijural nature of Canada. Traditionally, past governments have also favoured bilingual judges. While bilingualism for Supreme Court judges is not mandatory as per the Official Languages Act, the inability of judges to appreciate the entirety of the law is concerning. When laws are co-written and passed in both English and French, they are to be interpreted as such – in both English and French. Having a judge that is unable to read a version of the law and understand its linguistic nuances and meanings is alarming. Logically, one may even say that if you are unable to understand the language of the law, you are, by default, not competent to interpret its sense. As such, it has become conventional to have bilingual judges. In this case, competency and language are not separate; they are one. Separating them makes no sense, both from the view of fundamental justice, and from the Charter angle of institutional bilingualism and protection of linguistic minorities. What’s more, many academics agree that the Official Languages Act is in direct violation of section 19 of the Charter, “Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.”

As you can imagine, Harper’s 2011 nomination of unilingual Justice Moldaver to the Supreme Court was a controversial one. It put into question bilingualism at the Supreme Court. Most people, being misinformed and mislead in the matter, believe that the requirement of bilingualism would unfairly restrict the pool of eligible judges. Sadly, this argument is not a legal one; it’s a political one at best, and it perpetuates a disservice to Canadians who rightfully should expect judges to read and understand the entirety of the law – above all at the Supreme Court. Harper, although admitting publicly that a bilingual requirement should exist for the Chief Justice, seems to have missed the boat on that one. Purposefully.

Another tradition that has defined our Supreme Court is gender parity. Internationally, Canada has been praised by the U.N., foreign governments, and by international legal bodies for its commitment to gender representation. As Chief Justice Beverly McLachlin noted, gender parity gives the Supreme Court legitimacy and makes way for a variety of viewpoints. Most law students are now females, and the practice’s face is going through a never-before-seen makeover. Again, law does not inscribe gender parity; it is a tradition or convention (in its non legal sense). A tradition that has been hailed by many, and that symbolizes the spirit of Section 15 of the Charter. A tradition, that, until recently, has been put into question. Needless to say, the nomination of Marc Nadon has re-sparked debate and discussion in the country about gender representation on the Supreme Court. And while this debate is important and interesting, Harper has kept in his earplugs.

Merit cannot take the form of a tunnelled vision; it must instead appreciate a greater definition, considering the many fundamental principles, values and realities of Canada. The ones I have enumerated here are certainly not exhaustive. Consequently, how should Parliament finally amend the Supreme Court Act and other pieces of legislation to ensure that certain traditions be enshrined in law in order to allow for a plural, diverse, and truly Canadian Court?

While the answers are not clear, it is obvious that the current government has very little ambition to tackle the issue. That said, true ambition, after all, is better exercised by greater, more visionary leaders anyway. 

Photo courtesy of c hage on Flickr

Stéphane Erickson holds a Bilingual Bachelor of Commerce from the University of Alberta and is currently a J.D. and LL.L. candidate in the Programme de droit canadien at the University of Ottawa Faculty of Law.

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