Yakabuski – It’s official: The Supreme Court’s ruling on Bill 21 will be one for the ages

2025/08/15 Leave a comment

Indeed:

…Nevertheless, the fact that two provincial appeal courts have now come to contradictory decisions touching on the judicial review of laws shielded by the notwithstanding clause means the Supreme Court must inevitably settle the issue. 

Its ruling on Bill 21 will hence carry widespread implications for governments across Canada, either freeing them to employ the notwithstanding clause with impunity, or subjecting them to potential rebuke – in the form of judicial declarations – if they invoke Section 33.

It remains unclear whether the Supreme Court will render its decision before Quebeckers go to the polls next year. Even so, with the Parti Québécois seeking to build on its momentum after another decisive by-election win this week, the Supreme Court case on Bill 21 will figure prominently in the sovereigntist party’s campaign pitch to francophone voters. PQ Leader Paul St-Pierre Plamondon said the Supreme Court’s move to grant leave to appeal to Bill 21’s opponents “confirms to us that the federal regime is determined to combat Quebeckers’ democratic choices.” 

How much will the top court take into consideration a potential political backlash in Quebec in determining whether to overturn the Quebec Court of Appeal’s ruling on Bill 21? With the PQ on track for a stunning comeback in the 2026 vote, increasing the likelihood of another sovereignty referendum by 2030, the question has to be on the judges’ minds. 

Source: It’s official: The Supreme Court’s ruling on Bill 21 will be one for the ages

Filed under Multiculturalism Tagged with , ,

Yakabuski: Le déluge [Supreme Court hearings on Quebec Laïcité Bill] 

2025/08/12 Leave a comment

Of note:

…En permettant à un si grand nombre d’opposants à la Loi sur la laïcité de l’État québécois d’intervenir devant le plus haut tribunal du pays, le juge en chef de la Cour suprême, Richard Wagner, souhaite aller au fond des choses afin de dissiper tout doute sur l’utilisation préventive de la disposition de dérogation. Les Canadiens ne méritent rien de moins. Mais le processus risque d’être houleux.

Source: Le déluge

… By allowing so many opponents of the Quebec State Secularism Act to intervene before the highest court in the country, the Chief Justice of the Supreme Court, Richard Wagner, wishes to get to the bottom of things in order to dispel any doubt about the preventive use of the waiver provision. Canadians deserve nothing less. But the process is likely to be stormy.

Filed under Interculturalisme, Multiculturalism Tagged with , ,

Canada’s Supreme Court ’signed my son’s death warrant,’ mother of alleged ex-ISIL member says

2024/11/06 Leave a comment

Letts was UK’s problem and its not accepting of that responsibility led to Letts’ family understandably advocating given that he is a dual citizen by descent (born and raised in UK). “Canadian of convenience” in one sense:

The mother of a Canadian man detained in Syria says the Supreme Court of Canada has signed her son’s death warrant by closing the door on a plea to hear his case.

“I’ve been screaming about this for 7 1/2 years now,” said Sally Lane, the mother of Jack Letts. “I’m exhausted. I just want my son back.”

The Supreme Court had already declined to hear a challenge of a Federal Court of Appeal ruling that said Ottawa is not obligated under the law to repatriate Letts and three other Canadian men.

In a fresh notice filed with the court in March, lawyers for the men said exceedingly rare circumstances warranted another look at the application for leave to appeal.

A letter to the lawyers, dated last Friday, says the motion for reconsideration cannot be accepted for filing, leaving no further remedies in the top court.

“I have reviewed your motion for reconsideration and your affidavit in support,” says the letter from the court registrar. “I regret to inform you that, in my opinion, your motion does not reveal the exceedingly rare circumstances which would warrant reconsideration by this Court.”

The detained Canadian men are among the many foreign nationals in ramshackle detention centres run by Kurdish forces that reclaimed the war-ravaged region from militant group Islamic State of Iraq and the Levant….

Source: Canada’s Supreme Court ’signed my son’s death warrant,’ mother of alleged ex-ISIL member says

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Supreme Court slammed after anti-racism advocates ‘disinvited’ from presentation over posts on Israeli-Palestinian conflict

2024/02/09 Leave a comment

I check the twitter feeds of two of the complainants, “El Jones, a poet, activist and political science professor at Mount Saint Vincent University in Halifax, and DeRico Symonds, director of justice strategy with the African Nova Scotian Justice Institute,” definitely activists, the former particularly so given virtually all of her tweets pertain to Israel/Gaza, but did not cross the line IMO.

The irony, of course, is that practitioners of cancel culture are surprised and outraged when they become victims themselves. A lesson here, one that I doubt will be learned:

…There has been widespread debate in recent months about when anti-Israel sentiment crosses over into antisemitism, and about the boundaries of acceptable political advocacy.

University of Waterloo political science Prof. Emmett Macfarlane, who has written several books on the top court , said it is important to know the details about the online posts that were red-flagged, and that the court’s lack of transparency about the content of those posts is a concern for him.

Even so, he said the Supreme Court of Canada was in a “severe double-bind” from the outset: it faces the same workplace challenges in navigating conflicting views among employees as other Canadian workplaces, and in respecting honest concerns that some people may feel “like they are being discriminated against by virtue of people who have expressed certain views.”

“Layered on top of that,” he said, is the court’s “broader institutional concern with being above reproach politically and being perceived as politically neutral.” Once the court became aware of views that someone tagged as controversial, he said, it was in a “no-win situation.”

“You either proceed and allow all the people to come to speak, and then you could get accused of having a bias by allowing people who have been controversial online to speak, or you do what they did and uninvited people, but then you get accused of bias on the other side.”

Macfarlane said it’s not just a question of “de-platforming” guest speakers, or “the potential for hate speech and all that” — which he said is not easy to grapple with at the best of times — but that the Supreme Court faces the added challenge of being “very sensitive to perceptions that it is being politicized.”

For the anti-Black racism researchers, who noted to the Star that this is Black History Month in Canada, the court erred on the wrong side….

Source: Supreme Court slammed after anti-racism advocates ‘disinvited’ from presentation over posts on Israeli-Palestinian conflict

Filed under Antisemitism, Islamophobia, Multiculturalism Tagged with , , , , , ,

Disputed immigration provision requires link to national security, Supreme Court says

2023/09/29 Leave a comment

Of note:

A provision of federal immigration law can be used to bar people on security grounds for engaging in violence only when there is a clear connection to national security, the Supreme Court of Canada has ruled.

The decision came Wednesday in a judgment on two cases that began with administrative rulings under a section of the Immigration and Refugee Protection Act.

The section of the law says permanent residents or foreign nationals are inadmissible on security grounds for engaging in acts of violence that could endanger the lives or safety of people in Canada.

The first case involved Earl Mason, a citizen of Saint Lucia, who came to Canada in 2010 and later applied for permanent residence with his wife’s sponsorship. In May 2014, Mason was charged with two counts of attempted murder and two counts of discharging a firearm after an argument at a bar in Surrey, B.C. The charges were stayed due to delay.

In the second case, Libyan citizen Seifeslam Dleiow arrived in Canada in 2012 on a study permit and later unsuccessfully applied for refugee status. A Canada Border Services Agency report alleged he had engaged in acts of violence against intimate partners and others.

Some charges were stayed, and he received a conditional discharge after pleading guilty to being unlawfully in a dwelling house with intent to commit an indictable offence, mischief under $5,000 and uttering threats.

In Mason’s case, the Immigration Appeal Division agreed with the immigration minister that the section of the immigration law in question applies even when there is no nexus with national security. In Dleiow’s case, the Immigration Division followed the appeal division’s interpretation.

As a result of these administrative rulings, both men were deemed inadmissible to Canada.

The Federal Court quashed the rulings, but the Federal Court of Appeal concluded the administrative interpretation of the immigration provision was reasonable. The men then took their cases to the Supreme Court.

In its decision, the top court rejected the Immigration Appeal Division’s reading of the provision and overturned the administrative rulings.

In writing for the majority, Justice Mahmud Jamal said the relevant legal constraints “point overwhelmingly to a single reasonable interpretation” of the immigration provision — a person can be found inadmissible to Canada only if they engage in acts of violence with a nexus to national security.

Jamal said the Immigration Appeal Division failed to address critical points of statutory context that Mason had raised as well as “the potentially broad consequences of its interpretation,” namely deportation from Canada.

In addition, he wrote, the appeal division failed to apply the section in keeping with international human rights obligations concerning refugees to which Canada is a signatory.

Justice Suzanne Cote would have applied a different legal standard of review to the case, but agreed that there must be a link between the relevant act of violence and national security.

She found the Immigration Appeal Division’s interpretation would have significantly expanded the grounds for deportation of foreign nationals or permanent residents.

“It would allow foreign nationals to be returned to countries where they may face persecution, in a manner contrary to Canada’s obligations under the Convention Relating to the Status of Refugees.”

Source: Immigration law provision can bar people with link to national … – CTV News

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Regg Cohn: Here’s what our Supreme Court got right about irregular migration

2023/06/21 Leave a comment

Good assessment:

Border crossing points are perennial flashpoints in Canada.

The Canada-U.S. boundary long ago emerged as an internal dividing line, pitting two premiers against the prime minister. Our traditionally undefended frontier — now heavily patrolled — also offered fodder for the political opposition in Parliament.

An attempt to bring order to the border disorder provided fresh ammunition for refugee rights advocates to fight it out in the courts. Their lawyers argued that we dare not return migrants to the U.S. because it’s simply not a safe space for the world’s refugees (news to those who keep trying and retrying to get in).

All of which makes the sudden unanimity of Canada’s Supreme Court on the constitutionality of the bilateral and controversial Safe Third Country Agreement so remarkable. If not necessarily surprising.

After years of litigation in the courts, and lengthy negotiation in two capitals, the improvised pathways that permitted migrants to enter Canada are now at a dead end. The country’s highest court ruled last week that the bilateral pact does not violate our Charter of Rights (setting aside one question on gender rights, to be retried by the lower courts).

The 8-0 decision was the culmination of bitter arguments about the border, political and legal. But it was also predictable and inevitable, because any other outcome would lead to an unsustainable and unrealistic free-for-all.

The fight over our frontier has been a battle on two fronts: first, the original 2004 agreement (contested in the courts); second, the subsequent flashpoints at unofficial pathways (like Quebec’s Roxham Road) not covered by the bilateral agreement — a loophole that allowed the Americans to refuse to take back so-called “irregular” migrants.

The logic behind the 2004 mutual border pact was that refugee claimants who seek asylum at official crossings were deemed to have found “safe harbour” wherever they set foot first, either America or Canada. That’s because migrants have no inherent right to cherry pick between the second or third country where they put down roots.

A bona fide refugee is fleeing war or persecution — not poverty or hopelessness at home. There is no provision for fine-tuning one’s final destination (or the process of refugee determination) merely because their second stop seems to some a hostile place.

Yes, Canada needs more people. But if we fail to maintain a clear distinction abroad between our regular immigration stream for selected applicants, and a regulated refugee stream for those who don’t necessarily qualify, then domestic support will atrophy.

Canadians, like people in other high-immigration countries, still want people to play by the rules. Never mind the cliché of “queue-jumpers,” Canada cannot countenance “country shoppers” without undermining the integrity of an already overloaded refugee determination system.

Critics argued that automatically sending applicants back to America subjected them to an arbitrary determination and detention system. The Supreme Court quite rightly countered that no system is perfect, and that America is a democracy where the rule of law still prevails, even if not always to our tastes; Canada is in no position to second guess every other quasi-judicial system in the world.

The political question that preceded this month’s court ruling arose over how to deal with the glaring loophole in the Safe Third Country Agreement, by which the Americans would only take back people at official crossings. In the aftermath, tens of thousands of migrants detoured instead to Roxham Road and other unofficial pathways far from those border posts.

The surge in refugee claimants, while not massive by global standards, had an upward curve that was impossible to ignore. Shortly after winning power in 2018, Premier Doug Ford picked a fight with the federal government for failing to clamp down on the border crossings; more recently, Quebec’s François Legault pressured Prime Minister Justin Trudeau to close the bilateral loophole.

With COVID came a clampdown, as both the Americans and Canadians were loath to let an uncontrolled stream of migrants into either country. Post-pandemic, Washington belatedly recognized the benefits of restoring order — not to appease Ottawa’s concerns but to address its own insecurities about the tens of thousands of irregular migrants crossing from Canada into the U.S. Last March, Canada and the U.S. closed the loophole on unofficial crossings — and with it, shut down Roxham Road.

For all its faults, America’s refugee system cannot be upgraded or downgraded based on whoever is in power. Would critics of the U.S. change their view of our supposedly superior system if Conservative Leader Pierre Poilievre one day becomes PM while the Democrats rule in Washington?

If America is such hostile territory, why do so many still risk the hazard of an irregular border crossing to the U.S., with Canada merely a way station? Let us not forget the deaths of eight migrants (from two families, one Romanian and the other Indian) trying to cross the St. Lawrence River into the U.S. at night earlier this year. Or the family of four from India’s Gujarat state that froze to death trying to cross the border from Manitoba into the U.S. in 2022.

Migrants are only human — they will take desperate actions to escape persecution or poverty at home, for which Canadians must show consideration with our refugee determination procedures. But the notion that Canada should countenance risky or merely irregular measures for those fleeing supposed uncertainty or misery in America has no serious foundation in refugee law or the Charter of Rights.

Source: Here’s what our Supreme Court got right about irregular migration

Filed under Immigration Tagged with , ,

Axworthy and Rock: The Safe Third Country Agreement is unsafe – and unconstitutional

2022/10/12 Leave a comment

Reflections of former ministers (easier when no longer in government) but will see what the Supreme Court rules:

Former ministers As Canadians, we take pride in our well-deserved reputation as a caring society that offers a humane and generous response to those seeking asylum. Yet last week, the Supreme Court of Canada heard arguments that since 2004, Canadians have been complicit in the mistreatment of refugees arriving at our border from the United States.

At the heart of this issue is the 2004 Canada-U.S. Safe Third Country Agreement (STCA), which requires that refugee claimants seek protection in the first country in which they arrive, be it Canada or the United States. On a practical level, this means that a person seeking asylum from a country other than Canada or the U.S. cannot seek protection in Canada if they have already landed in the U.S., and vice-versa. For the past 18 years, the STCA has operated on the premise that both countries are “safe” for refugees.

In July, 2020, a federal court judge determined that the STCA is unconstitutional and that Canada’s treatment of STCA returnees violates those provisions of our Charter of Rights and Freedoms that guarantee liberty and security of the person. The Federal Court of Appeal took a different view and upheld the STCA. Hence, the matter is now before our highest court for a final decision.

The problem here is not the agreement itself. In fact, similar arrangements have succeeded when all participating countries truly offer safety to asylum seekers. Instead, the problem is that the fundamental premise of the STCA no longer holds true. Put simply, the United States is not safe for many refugees. As a result, there are two distinct reasons why, in our respectful view, the Supreme Court should strike down the STCA.

First, while it is not the Court’s role to judge another country’s legal system, this case asks the Court to ensure that people who seek protection in Canada are not sent back to unjustifiable risk and real harm. Yet in returning people to foreseeable consequences in the U.S. – namely, detention in deplorable conditions and a serious risk of return to persecution – that is exactly what is occurring.

In the evidence before the Court, there are numerous examples of asylum seekers who were jailed in the U.S. after being turned away from Canada. They include a family with toddlers who were forbidden from sleeping with their parents; people kept for long periods in solitary confinement; and a 50-year-old woman forced to bathe naked in full view of security personnel.

Those who we send back to be detained in the U.S. face enormous barriers in claiming protection, leading some to be deported and persecuted in their home country. For example, the evidence in the case before the Court includes testimony from a Sri Lankan man who was turned away from Canada and then detained for a year and a half in the U.S. He was then deported and faced the exact persecution he feared – detention, interrogation and beatings by Sri Lankan authorities.

Second, our government has not been respecting the limits created by our own domestic laws. Canadian law implementing the STCA requires that our government monitor circumstances in the U.S. and only continue its designation as “safe” when it truly is. Here, the Court will hear the argument that Canada has neither adequately monitored what’s happening in the U.S. nor responded effectively to what it has seen. Given these circumstances, the Court will be asked to intervene.

Although Donald Trump is no longer in power, the reality for too many refugee claimants in the U.S. remains terrifying. We are by now all too familiar with last year’s images of U.S. border patrol agents on horseback chasing down Haitian migrants. And four years after the implementation of a disastrous policy at the U.S.-Mexico border that separated children from their parents, many are yet to be reunited. Immigration detention conditions in the U.S. remain deplorable, with staggeringly high rates of sexual assault and racially motivated attacks. Is Canada not properly monitoring these developments, or have we grown complacent in turning a blind eye to them? In either case, the STCA can no longer be allowed to stand.

It is important to note that even if the STCA is declared invalid, asylum seekers will still have to establish that they qualify for refugee status under international law. But they will no longer be automatically deemed ineligible for that status merely because they crossed into Canada from the United States.

It is said that the measure of a society is how it treats those on its margins. When vulnerable asylum seekers arrive at our border, they deserve to be treated lawfully and with dignity. We can no longer assume that if we send them back to the U.S., they will be safe. Indeed, the evidence establishes the contrary. It is time for us to abandon the STCA, an agreement no longer worthy of its name.

Lloyd Axworthy is chair of the World Refugee and Migration Council and a former Canadian foreign minister. Allan Rock is president emeritus of the University of Ottawa, and former Canadian ambassador to the United Nations.

Source: The Safe Third Country Agreement is unsafe – and unconstitutional

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‘A different perspective’: Justice Mahmud Jamal on minority rights, bilingualism and the Supreme Court Social Sharing

2022/06/07 Leave a comment

Of interest:

Settling into an imposing red leather armchair in a wood-panelled office in Ottawa, Justice Mahmud Jamal recalled his anxious first moments in this country as a 14-year-old immigrant.

“I remember the first day here very well. I was scared,” he told Radio-Canada in a recent interview, describing the path that took him to the nation’s highest court — first from Kenya to England, then to Edmonton in 1981 for high school.

“I was scared for a lot of reasons. I left all my friends. I left a culture where I had spent my whole life. But at the same time, it was an opportunity to start life again.”

Coming from a modest family that moved halfway around the world in search of a better life, Jamal rose through the ranks of the Canadian legal world after graduating from McGill University’s law school. He was sworn in as a Supreme Court justice in July 2021.

It’s a position he hopes to use to protect the rights of minorities and other historically disadvantaged groups — something he wrote about when completing his application to sit on Canada’s top court.

Jamal is the first person of colour to be nominated to Canada’s top court. He’s also a member of a religious minority.

Jamal grew up Muslim in the Ismaili community before converting to the Baha’i faith like his wife, who is an Iranian refugee.

He told Radio-Canada that his personal experience is an asset for the court, just like the personal experiences of each of his fellow Supreme Court justices.

“If you are a woman, if you are a man, if you are even a member of a minority, you bring your experience to work. I have experiences as a member of a visible minority, of a religious minority, so it gives a different perspective,” he said.

Source: ‘A different perspective’: Justice Mahmud Jamal on minority rights, bilingualism and the Supreme Court Social Sharing

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Selley: Justin Trudeau’s symbolic agenda collides with itself at the Supreme Court

2021/06/22 Leave a comment

Can’t satisfy all groups on a nine-member court (more latitude with respect to all judicial appointments where government, as per the contrast between the 2016 baseline and subsequent appointments highlights. And while symbolism is important, the harder work lies with reducing inequalities and long-standing issues:

A few headlines from the past week: “Justice Mahmud Jamal is first person of colour nominated to the Supreme Court of Canada” (CBC, the Toronto Star, and The Guardian). “ ‘Taunted and harassed’ as a youth, judge Mahmud Jamal receives historic Supreme Court nomination” (CTV and the National Post, quoting Jamal’s application statement). “Judge Mahmud Jamal, who finished high school in Edmonton, nominated to Supreme Court of Canada” (the Edmonton Journal, scoring the all-important local angle).

The first sentence in The Globe and Mail’s story mentions that Jamal is a “frequently cited author on the Charter of Rights and Freedoms.” We learn later on about his copious qualifications and impressive record as a jurist. But the second sentence explains a conflict: Prime Minister Justin Trudeau was “under pressure from minority and Indigenous organizations to make the Supreme Court more diverse.” And so “the Indigenous Bar Association is disappointed.”

The Supreme Court has some pretty spicy meatballs on its plate, not least the future of certain religious practices in certain parts of Quebec’s public service, and will have more spicy meatballs in the future. The retiring Rosalie Abella is no ordinary Supreme Court justice, but rather the standard-bearer for a very activist and flexible brand of judge. We might hear more about Jamal’s approach when he meets with parliamentary committees. But surely it’s odd how much more we seem to care about who he is than about how he thinks or how he might rule.

Justin Trudeau isn’t the first prime minister to be concerned with the symbolism of his appointments, and nor have the Canadian media only recently acquired an interest. Globe and Mail headline writers greeted Bertha Wilson’s appointment in 1982 with “First woman is appointed to Canada’s top court” (March 5). (This was followed by “Woman judge still avoiding press” (March 9) and finally “Woman justice to take oath” (March 26).) Abella’s and Louise Charron’s appointments in 2004 were hailed for approaching near-gender-parity on the top bench.

This is all for the good, to a large extent. In a jury trial, we are ostensibly judged by our peers. We shouldn’t want judges to be members of an exalted class. Ideally, the jurisprudence they create would reflect the full scope of Canadian experiences — of class, race, ethnicity, faith and so on.

But it’s not a stretch to say that Trudeau — Mr. “Because it’s 2015″ — is more obsessed with symbolism than is typical. And sometimes it makes his life far more difficult than it needs to be. On the Supreme Court, his wish to appoint an Indigenous justice runs smack into his pledge never to appoint a justice who can’t manage a hearing in both official languages — which is to say, his wish to placate Quebec nationalists at every possible turn.

“A fully bilingual Indigenous candidate who also meets regional requirements and conventions” is a very tough order to fill, as many articles in the press have explained. Fewer articles have noted how far offside this requirement is with Trudeau’s reconciliation agenda. Trudeau’s new rule for judges doesn’t just discount Indigenous languages entirely; it also demands Indigenous lawyers learn not just one settler tongue fluently, but both! In a recent interview with APTN, Harry LaForme, Canada’s first Indigenous appellate court judge, likened the policy to the assimilation of children at residential schools. It would be very awkward, if only more people noticed.

You see a somewhat different problem when it comes to the unfilled vacancy at Rideau Hall, which is seeing similar demands for a minority or Indigenous appointment. Either would be fine, obviously, just so long as they’re not on a mission to do anything other than be the Queen’s representative on Canadian soil. You can just imagine Trudeau and his advisers struggling with the concept, even after Julie Payette’s flameout and Paul Martin’s near-miss with obvious-separatist Michaëlle Jean. This is a chance to make a splash, to send a message!

But the returns diminish. Real people who need real improvements in their lives cannot be impressed by symbolism. And weakness for symbolism makes us overlook things. It’s a distraction. Many of Trudeau’s detractors, especially to his left, would suggest it has distracted him from actually making significant progress on issues central to his brand, and to which these symbolic appointments are meant to nod.

A pledge to eliminate boil-water advisories on reserves is worthless without eliminating boil-water advisories. Adopting or not adopting the UN declaration on Indigenous rights is worthless without implementing what’s in it. At some point after accepting the findings of the Truth and Reconciliation Commission, which had a whole section on unmarked and forgotten children’s gravesites, someone was going to have to pony up the money to look for those gravesites. It took until now.

I often argue there are maddeningly few fundamental differences between Liberal governance and Conservative governance in Canada — certainly not nearly enough to justify the intensity of the battles between them. Privileging action and disdaining empty symbolism is one principle Canadian conservatives should guard jealously, even if they don’t always apply it consistently themselves. It’s the only way to help real people with real problems.

Source: https://ottawacitizen.com/opinion/chris-selley-justin-trudeaus-symbolic-agenda-collides-with-itself-at-the-supreme-court/wcm/cad4b3f1-d2c4-48a2-93f0-976678296276

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Diversity is on a collision course with bilingualism at Canada’s top court

2021/03/08 1 Comment

Tend to agree:

Should all Supreme Court of Canada judges — or at least the next one — be bilingual? Should the next vacancy go to a Black, brown or Indigenous jurist, whether they are bilingual or not, to reflect Canada’s population in all its diversity?

It’s a legal dilemma wrapped up in a language debate, tinged with electoral politics, and an existential question about what kind of country Canada is.

The Trudeau government has kicked off both.

On the same day it announced the launch of a search for an Ontario jurist to take the seat of soon-to-retire Justice Rosalie Abella, the Liberal government said it plans to put into law Prime Minister Justin Trudeau’s practice of appointing only “functionally bilingual” judges to the top court.

It was a campaign commitment, and with a whiff of a possible election in the air, Trudeau is ticking off political boxes.

But the “how?” he proposes to do it is less clear. And advocates of greater diversity say mandatory bilingualism will block many qualified candidates from being elevated to the Supreme Court.

Six months ago the Canadian Association of Black Lawyers wrote an open letter to the Trudeau government urging swifter action to address systemic anti-Black racism throughout the justice system and noting “only three Black judges have been appointed under the Trudeau-led government.”

Raphael Tachie, senior counsel for TD Financial Group and president of the association, in an interview said the top court should be a bilingual institution but the requirement “that each individual justice be bilingual disqualifies a lot of really qualified Black and racialized jurists that we think would be great appointments to the court.”

Many practising outside Quebec have not been exposed to French language or training, or “come to the language later on in life and might not always be as proficient as they ought to be. That’s the challenge,” he said, adding “I think the court can compensate for that,” using translators and interpretation. He urges Trudeau to look beyond the Ontario Court of Appeal to lower courts and the bar: “You need to elevate your talent,” he said.

Brad Regehr, the first Indigenous lawyer to lead the Canadian Bar Association, says the same is true for Indigenous candidates who “already face systemic barriers in terms of achieving that proficiency in official languages.” Regehr says it’s time for Trudeau to name someone who is Black, Indigenous or a person of colour to the Supreme Court.

A member of the Peter Ballantyne Cree Nation in Saskatchewan who lives and practices law in Winnipeg, Regehr argues that Canada is “not just a bijuridical state where there’s English common law and French civil law; Indigenous legal traditions form part of the law of Canada and that seems to be forgotten or ignored and the only way you’re going to get any perspective on that is by having an Indigenous judge.”

Both want Trudeau to walk his progressive talk, and do something concrete to promote reconciliation and diversity.

Right now, the Supreme Court of Canada is the only federally-appointed court that is exempt from the Official Languages Act which says all Canadians must be able to access services in federal courts in either English or French. In other words, it puts the onus on federal courts to provide bilingual services, not on prime ministers to appoint only bilingual judges. The Liberals propose to drop the exception.

Trudeau does not intend to change the Supreme Court Act which sets out the eligibility criteria for judicial appointments to the top court.

Rachel Rappaport, a spokesperson for Justice Minister David Lametti, says the bilingual services exemption for the Supreme Court “was never intended to be permanent.”

In 1988 Conservative justice minister Ray Hnatyshyn said during debates on the Official Languages Act that, “It is probably in the national interest at this time that we not put any constraints on the court in the way in which it does its business.” He said that “until we reach a more developed stage of bilingualism across the country,” governments should be able pick from among “the best people who are unilingual, in both languages.”

There have been at least 10 bills introduced over the past 10 years to require top judges be bilingual, according to Jean-Christophe Bédard-Rubin, a doctoral candidate at University of Toronto’s faculty of law. None has passed.

But unilingualism has had an impact, says Bédard-Rubin, who with a colleague has done the first empirical study of the impact of unilingualism on the Supreme Court’s operations. They analyzed cases from 1969 to 2013. In an interview, he said, “There tends to be a linguistic separation of labour at the Supreme Court.”

Despite access to interpreters and translation, anglophone judges “will sit more and write more in cases argued in English and francophone judges will sit more and write more on cases argued in French. And this is regardless of their areas of expertise,” he said. Unilingual judges are less assertive on cases argued in another language and litigants “might lose that expertise” where unilingual judges stand down or just “go with the flow.”

“The general picture that emerges is that language proficiency superimposes itself as another kind of legal specialization in the inner-working of the court,” he wrote.

There’s another twist. Some legal scholars suspect that the Liberals are trying to do through a back door (via the Official Languages Act) what they may not be able to do through the front door (via the Supreme Court Act): that is, rewrite the eligibility rules for judges. That’s because in 2014, the Supreme Court of Canada ruled Parliament “cannot unilaterally modify the composition or other essential features of the court,” saying it requires a constitutional amendment.

Gerard Kennedy, assistant professor in the faculty of law at the University of Manitoba, said it’s debatable whether making bilingualism mandatory is the kind of “essential” characteristic that is protected by the Constitution. And if the Liberals took that route, he said it would quickly become very divisive. “By amending the Official Languages Act, it draws less attention to it.”

But the government seems to have allowed itself some wiggle room — at least for the next appointment. There is one Ontario vacancy coming open on July 1, and another one within two years when Michael Moldaver will turn 75.

The languages law reform document states in drafting the change, the government is weighing the appointment of Indigenous judges to the Supreme Court of Canada along with case law on the court’s “composition and eligibility criteria.”

Meanwhile, the Liberals are using their plan it as a “political chip” as Bédard-Rubin calls it, part of a political strategy to paint the Conservatives as soft on bilingualism.

Trudeau challenged Conservative Leader Erin O’Toole outright in the Commons two weeks ago to commit to naming only bilingual judges on the top court, claiming Conservatives do “not support bilingualism in Canada.”

Conservative justice critic Rob Moore declined an interview request but in an email said, “Conservatives expect appointments to the Supreme Court of Canada are based on competency and legal excellence. Bilingualism or a commitment to learn or improve one’s French will also be a key principle in appointments to the Supreme Court for a future Conservative government.”

The NDP and the Bloc Québécois have long called for bilingual Supreme Court judges.

It’s not clear if the latest proposal will come to pass before a federal election, whenever it comes.

Source: ANALYSIS Diversity is on a collision course with bilingualism at Canada’s top court

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