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Bill C-232, Supreme Court Act (Understanding the Official Languages)


Hon. Michael L. MacDonald: Honourable senators, before I begin, I would like it understood that my speech today will in no way interfere with Senator Meighen's holding of the adjournment, and, when I conclude my remarks, I would ask that the debate be adjourned in the name of Senator Meighen for the balance of his time.

I rise today in this chamber to speak to Bill C-232, an Act to amend the Supreme Court Act (understanding the official languages). Simply stated, this bill, if passed, would restrict membership on the Supreme Court to that very small percentage of Canadians who would prove fluency in both official languages. Bill C-232 is also a rare private member's bill that has come to us from the other place, and, since few such bills even make it this far through the legislative process, I think we owe it a particular duty of examination.

I will not deal at length with the political conduct of the opposition in the other place regarding this bill except to point out that the Leader of the Opposition, Mr. Ignatieff, whipped his caucus to support a private member's bill from the fourth party in the House of Commons. Private members' bills are supposed to be free votes. I will leave it to honourable senators to come to their own conclusion of what motivates Mr. Ignatieff and why he was so anxious to hold hands with the Bloc on this issue.

I also want to state that I take no great pleasure in speaking to this bill. Legislation dealing with the issue of language is a sensitive matter in most countries, and Canada is certainly no exception. Canada has been an officially bilingual country since 1969. I support official bilingualism, and I firmly believe it makes us a more inclusive democracy. Yet, support for official bilingualism does not exempt any parliament from using good judgment, fairness and common sense when applying this policy or, indeed, any other government policy. I appreciate the need to be vigilant regarding the application of government policy, and I respect those working to ensure that the fundamental elements of official bilingualism are upheld and updated when necessary.

However, Canada is politically a federation, not a unitary state, and Canada is geographically the second-largest country in the world, containing significant regional and demographic differences across its length and breadth. We must be mindful of these realities as well and insist that they be observed, accommodated and reflected in the policies and the practices of the federal government.

Although I appreciate the importance of language to people individually and collectively, I confess I find the politics of language to be a dreary and divisive subject, and one which I much prefer to avoid. However, it is impossible to stay silent on a proposal that could only serve to marginalize the overwhelming majority of those in the legal community, both in my home province and across this country. This unfairness is particularly acute in regard to Ontario and the West, both of which are already severely under-represented on the Supreme Court relative to their size of the populations.

Since this legislation arrived here in the spring, I have received many representations from a variety of sources, expressing deep reservations about the negative impact of Bill C-232. I have also had the opportunity to listen to many people in the Nova Scotia legal community, and they are greatly concerned; indeed, they are disillusioned by the restrictive nature of this legislation. They shake their heads at the mindset of some politicians in the Ottawa bubble. I am obligated to speak out for them, just as I am obliged to defend in this chamber the best interests of Nova Scotia. If ever there was a circumstance illustrating the importance of the Senate's duty to provide sober second thought, surely it is Bill C-232. With that in mind, I would like to review the arguments put forth by those who would impose this proposed legislation on our Supreme Court. Let us put their reasoning under the light and determine if they have made a convincing case for their position.

The proponents of Bill C-232 claim that it is essential that our Supreme Court justices be bilingual so that a citizen will not suffer an injustice, because he would not be understood, because the defence would not be understood, and because the judge would not understand the nuances of the defence. This is specious reasoning at best and thoroughly unconvincing. Those that promote this argument cannot point to one concrete example of a Supreme Court judgment being rendered under such circumstances.

Simultaneous translation and interpretation has been an accepted practice in legislatures, courts and institutions throughout the world for many years. The people providing these services are specialists and highly skilled in their profession. Those working at the Supreme Court of Canada are highly trained in nuance and terminology, and are familiar with the use and meaning of legal language. It is what they do for a living. To suggest that their work is deficient stretches the imagination. The advocates of Bill C-232 re-assure us that the judges would have only to be functionally bilingual and that the bar would not be set too high. It is hard to believe that a functionally bilingual judge would exhibit comprehension skills superior to those of any fluently bilingual interpreter. The idea that a case could be lost because of nuance in language being overlooked is truly a dog that will not hunt.

Why confine concerns about nuance of language to solely our official languages? What about the 6 million Canadians who speak neither of the official languages as their first language? What about aboriginal Canadians and the millions of immigrants who have made Canada their home? What allowances are made for the nuances of language in their situation and that of their children? Why are they less deserving of similar accommodation? Those who would support this legislation are silent on this issue.

Many would argue that the Supreme Court has definite shortcomings, but bilingualism is certainly not one of them. Our national institutions are thoroughly bilingual, and they work. The Supreme Court, along with the House of Commons and the Senate, is one of the three great institutions of Canada that embody the federal state. When Canada became officially bilingual in 1969, the federal government endeavoured to make these three bodies fully bilingual in their function.

If the Senate is any example, I think the federal government has done a pretty good job. One has to spend only a few days working in the Senate to appreciate how well it functions in both official languages. I am always impressed by the fluency of the people I meet here. The bilingual efficiency of those who transcribe our proceedings is incredible, and the professionalism of the table and other officers is exemplary. I especially admire the effortless bilingualism of our pages, who are so patient and courteous, so indispensible to the running of this chamber, and so attentive to the needs and the demands of senators. We all operate comfortably in a functional and officially bilingual environment.

This environment is fully replicated in both the House of Commons and the Supreme Court of Canada. The purpose of establishing this type of workplace is quite straight-forward and requires no interpretation — these institutions are to be fully bilingual in order to ensure that those who serve there have not only the freedom but also the right to work in the official language of their choice. If you are elected to the House of Commons, summoned to the Senate or appointed to the Supreme Court, you need to understand one of the official languages to function, but you do not require both to do your job. That is an undeniable fact. That is an incontestable truth.

Who in this country would dare to suggest that only the officially bilingual could run for election to the House of Commons, let alone attempt to pass a law enforcing such a measure? There is no federal institution as diverse and as representative of modern Canada as this Senate in which we serve. Just think of how unrepresentative of our country this Senate would become and how different and less diverse its composition would be if the narrow provisions of Bill C-232 were applied to this institution. Mr. Ignatieff thinks nothing of imposing these same measures on the Supreme Court and conspires to do so with his fellow travelers, the Bloc.

The proponents of this bill confine their arguments primarily to esoteric platitudes, but they studiously ignore the practical impact its enactment would have from coast to coast; and they refuse to acknowledge the extensive marginalization of Canadians that Bill C-232 would produce.

We must always be mindful of the relatively small size of the Supreme Court. Canada presently has a nine member Supreme Court. By law, three positions are reserved for the province of Quebec. By convention, three of the remaining six seats are allocated to Ontario, two to the West, and one to Atlantic Canada.

These conventions are important as they allow for an application of balance and fairness in the absence of any legal requirement. Such compromises are essential to maintain political stability, and to minimize regional grievances in a large and diverse federation such as Canada. We have conventions and standard practices, and we apply them consistently because they are beneficial to the running of our country.

Atlantic Canada has but one member on the Supreme Court. Newfoundland, which joined Canada in 1949, has never had one of its own serve on the Supreme Court. However, Newfoundland is almost 98 per cent unilingual, the most unilingual province in Canada. Just as 19th century merchants displayed signs saying 'no Irish need apply,' this bill would hammer a 21st century notice over the door of the Supreme Court of Canada declaring, 'no Newfoundlanders need apply.'

As a Nova Scotian, I know Newfoundlanders as well as any mainlander, and as a Cape Bretoner, I am their neighbour. I have met many members of the Newfoundland bar over the years, and I am never surprised when they prove to be among the smartest and most thoughtful of people. Newfoundlanders will not support and should not accept being barred from serving on the highest court in the land due to the circumstances of their birth. I am more than prepared to stand with Newfoundlanders, even if some in the coalition are prepared to push them aside.

Let us go across the country. Quebec is the second most populated province with about 7.5 million people. About 6.5 million are francophone and 4 million of them are unilingual. By any yardstick, 4 million people constitute a critical mass of people. They form the heart of a community in Canada that stretches back to the 17th century. Now, we are to tell these old-stock Canadians that they do not merit consideration for the Supreme Court because they are unilingual. Are we really to believe that such a large and dynamic community of people in the centre of our country is not capable of producing one legal mind worthy of elevation to the Supreme Court?

Unilingual francophones from Quebec are no less Canadian than anybody else in this country, and they have the right to fully participate in our national institutions. Fortunately, in today's Canada, under the practices already established in the House of Commons, the Senate and the Supreme Court, they can do exactly that; and they are free to and have the right to participate in the official language of their choice.

We need also to consider how much Canada's population has grown since 1949, when the Supreme Court was enlarged from seven to nine members. In the past 60 years Canada's population has almost tripled in size, resulting in the Supreme Court being increasingly unrepresentative of the regions of the country. While Quebec and Atlantic Canada have one Supreme Court judge for every 2.5 and 2.3 million people, respectively, Ontario finds itself with one judge for every 4.4 million people. The imbalance is most pronounced in the West, which finds itself with one judge for every 5.1 million people.

About 93 per cent of Western Canadians are either unilingual or bilingual in non-official languages. Western Canada is the fastest growing area of our country, and they are already grossly under-represented on the Supreme Court. To deliberately marginalize the West even further by the imposition of such restrictive criteria is irresponsible and unacceptable.

We must also remind ourselves not just how much Canada's population has grown but how it is growing. Honourable senators, I am disappointed to say that if we were to look at a photo of the Supreme Court today, it looks pretty much as it would in the 19th Century, other than the inclusion of women. As far as I can determine, there has never been a visible minority or Aboriginal Canadian on the Supreme Court. Although Canada promotes itself as being one of the most multicultural countries in the world, there is no evidence of this to date reflected in the composition of the Supreme Court.

Most immigrants to Canada today are visible minorities, and many speak to their children at home in a language that is neither of our official languages. In effect, Bill C-232 mandates that we hold our immigrants, Aboriginal Canadians and their children to an even higher standard than other Canadians; not only must they learn one of Canada's official languages, they must learn two. They must be trilingual.

This pushes visible minorities and Aboriginal Canadians to the margins and makes their chances of serving on the Supreme Court statistically very remote. This is unconscionable.

My honourable colleagues on the other side who spoke on this issue pointed out several times in debate that both the English and French versions of the statutes are equally authoritative. They are correct. Why is it so? I believe we do this because it does not matter what language we speak. When I rise to make a statement in this chamber or in committee, I know that my words will be interpreted and translated by eminently qualified people who understand the language of Parliament and who understand the importance of accuracy.

There are many countries in the democratic world that are officially bilingual or even multilingual. I took the time to review the composition of many of their Supreme Courts, and in almost all cases they operate with simultaneous translation with no requirements for the judges to have bilingual or multilingual ability.

Belgium is an officially bilingual country; they speak primarily Flemish and French, and they have a small German-speaking population. Belgium is also surrounded by tens of millions of Dutch, French and German speakers, which provide Belgiums, like most Europeans, ample opportunity from birth to acquire more than one language.

The Belgian supreme court equivalent has 13 members, with six chosen from the native Flemish community, six from the Walloon community and one from the German-speaking population. Like Canada, although many judges are bilingual, they are not required to be officially bilingual. Unlike Canada, bilingualism is not considered an asset when appointments are made to the court, although Belgium, geographically, is a mere postage stamp of a country compared to Canada, which is 3,000 miles wide and spans a continent.

The problem, honourable senators, is that this bill speaks to one particular ideal of Canada, not of the modern Canada in which we live coast to coast. To demand that our Supreme Court justices know both of our official languages holds them to a standard that, frankly speaking, few Canadians can meet. It is not a standard we expect in our members in the other place and not one we demand of the members of this chamber.

The Senate of Canada endeavours not to defeat government legislation. All parliamentarians understand that the House of Commons provides the basis for responsible government in our country and the Senate is, by convention, restrained in its conduct when it comes to defeating government bills. However, it must be noted that it is not the elected Government of Canada which sponsored and passed this legislation in the other place. It was the coalition which dropped these questionable, undemocratic and elitist measures into our laps for consideration.

Bill C-232 is divisive, exclusionary and above all completely unnecessary. This legislation does not deserve our support. I urge all honourable senators to do the reasonable and rational thing and reject this prime example of bad and poorly thought-out legislation.