Senator Gold: Thank you for raising the issue of the court because I think it will also give me an opportunity to correct what I think is a slight misunderstanding of the provisions of this bill as it applies to the court.

To answer your question directly, no, I don’t believe that the issues that you have raised justify sending it to the Legal Committee, and I’ll explain why.

With respect to the judiciary, the provisions of this bill remove an exemption that existed for the Supreme Court of Canada that was placed in the original act and, at the time, was thought to be “temporary,” absolving the court as an institution from the same requirements that other superior courts had. That is, to give effect to the constitutionally protected rights of litigants to be heard and understood in the language of their choice without the aid of an interpreter. What is perhaps not understood — and I apologize, Senator Batters, if I’m putting words in your mouth, or others; I don’t mean to. But this does not mean that every judge appointed to the Supreme Court or any other Supreme Court must be bilingual, fluent or otherwise. That is not what the legislation requires. It is an institutional obligation on the court as an institution that when it hears cases, the litigants before the court must be ensured that they are able to address the court and be understood without the benefit of an interpreter.

I’ll give an example. It happens, happily, that the Supreme Court of Canada in today’s composition has nine judges — three from Quebec, three from Ontario, as is our practice, custom and law — who are all functionally bilingual, but it is not actually a requirement and wouldn’t be a requirement. It would be a requirement that the panel of judges who hears a case be a panel that is able to hear and understand testimony, whether in English or French, without the benefit of an interpreter. For example, the quorum for a case at the Supreme Court of Canada, as you know, is five. There is nothing in Bill C-13 that requires that every future judge, where it’s the Supreme Court or of any superior court — because those provisions have been in place for some long time — must be fluently bilingual. It is conceivable that a Supreme Court judge may be appointed if they only speak French and perhaps an Indigenous language. Although I don’t think there has been a unilingual French judge on the Supreme Court since Confederation, there have certainly been unilingual English judges. But that is not precluded by this so long as the court, as an institution, when it structures its panels — which is typically under the jurisdiction of the Chief Justice — has the ability to satisfy the institutional obligation that is now imposed upon the Supreme Court from which it had been exempted temporarily under the Official Languages Act of 30 years ago.

Senator Gold: I’m sure this question will and can be both asked and answered at committee, but it is clearly in the law. Again, as I have noted, the provisions here that remove the exemption have been in place for federally appointed judges for decades and it is certainly not the case that all federally appointed judges have had to have been bilingual. It wasn’t like that in the past, nor will it be in the future, whether for the Superior Court of Justice in Ontario or Supreme Court of Canada.

[Translation]

Hon. Marc Gold (Government Representative in the Senate): Thank you for raising the issue of the court because I think it will also give me an opportunity to correct what I think is a slight misunderstanding of the provisions of this bill as it applies to the court.

To answer your question directly, no, I don’t believe that the issues that you have raised justify sending it to the Legal Committee, and I’ll explain why.

With respect to the judiciary, the provisions of this bill remove an exemption that existed for the Supreme Court of Canada that was placed in the original act and, at the time, was thought to be “temporary,” absolving the court as an institution from the same requirements that other superior courts had. That is, to give effect to the constitutionally protected rights of litigants to be heard and understood in the language of their choice without the aid of an interpreter. What is perhaps not understood — and I apologize, Senator Batters, if I’m putting words in your mouth, or others; I don’t mean to. But this does not mean that every judge appointed to the Supreme Court or any other Supreme Court must be bilingual, fluent or otherwise. That is not what the legislation requires. It is an institutional obligation on the court as an institution that when it hears cases, the litigants before the court must be ensured that they are able to address the court and be understood without the benefit of an interpreter.

I’ll give an example. It happens, happily, that the Supreme Court of Canada in today’s composition has nine judges — three from Quebec, three from Ontario, as is our practice, custom and law — who are all functionally bilingual, but it is not actually a requirement and wouldn’t be a requirement. It would be a requirement that the panel of judges who hears a case be a panel that is able to hear and understand testimony, whether in English or French, without the benefit of an interpreter. For example, the quorum for a case at the Supreme Court of Canada, as you know, is five. There is nothing in Bill C-13 that requires that every future judge, where it’s the Supreme Court or of any superior court — because those provisions have been in place for some long time — must be fluently bilingual. It is conceivable that a Supreme Court judge may be appointed if they only speak French and perhaps an Indigenous language. Although I don’t think there has been a unilingual French judge on the Supreme Court since Confederation, there have certainly been unilingual English judges. But that is not precluded by this so long as the court, as an institution, when it structures its panels — which is typically under the jurisdiction of the Chief Justice — has the ability to satisfy the institutional obligation that is now imposed upon the Supreme Court from which it had been exempted temporarily under the Official Languages Act of 30 years ago.