Hon. Francis Fox:

Honourable senators, I thought Senator Meighen was going to speak to this bill this afternoon, which is why I am a little confused.

I would like to begin by saying that I want to participate in this debate because it pertains to some very crucial issues that are extremely important to the Canadian federation. I do so with the full knowledge that the party in power plans to make sure this bill is rejected, and what is more, plans to use delaying tactics to prevent the bill from being referred to committee.

Others will be better positioned to analyze the significance of the term "parliamentary democracy" in the context of a minority government that has an absolute majority in the upper chamber and can therefore determine, at its sole discretion, the fate of bills that are passed against its will in the House of Commons by the elected representatives of this country.

My intention here today is to put forward a few ideas and notions that, I believe, argue in favour of passing this bill.

The Senate is really a forum for political ideas and not the appropriate place to conduct an in-depth legal analysis of section 133 of the Constitution or section 19 of the Canadian Charter. That is the judiciary's responsibility, but after reading the broad trends that have emerged in the jurisprudence since the Beaulac decision, it is entirely possible that the judiciary would reach a similar conclusion to what the bill is seeking.

It is truly unfortunate that by refusing to send the bill to committee, the government is making it impossible to enrich the debate through the presentation — either by experts, stakeholders or senators themselves — of possible amendments that could help build a consensus around this bill.

Through the debates in this chamber, we have already seen that certain senators would have made key suggestions in committee. Senator Champagne, for example, spoke about the possibility of delaying appointments to allow for language training. And in Senator Carignan's speech we heard about the possibility of potentially innovative and interesting approaches. We know that the customary contribution of Senators Fraser, Joyal and Baker would also enhance the debate. But these suggestions will never be considered because the government intends not just to enforce a gag order but to take the guillotine to this bill.

Let us get back to the main issue. We are talking about the Supreme Court of Canada, and let us focus on the word "supreme." It is the court that has the final say in cases between individuals, between an individual and a province, between an individual and the federal government and, finally, between the federal government and the provinces.

Final arbitrator in civil, commercial and criminal matters; final arbitrator in administrative and constitutional law; this court is not like any other. It is an institution of the federation, an institution that must reflect the values of the federation in its composition and operation. Who today would deny that the Official Languages Act — and I did enjoy Senator Comeau's remarks — is one of those values?

How can this government deny today, after recognizing that Quebec is a nation — and I must give credit to Mr. Harper, and to Mr. Ignatieff who proposed that motion — that the highest court in the land, the final arbitrator of the federation, does not reflect our linguistic duality in its enabling legislation? Giving French the right to be interpreted is clearly not enough and, Your Honour, it borders on insulting to take such a position. It is a shame that, after 40 years of progress, the government wants to make such a situation permanent.

Let us talk briefly about the federal legislation that this court is called on to interpret. I would like to quote a constitutional expert from Montreal who said the following recently in Canadian Legal Newswire. Mr. René Cadieux from Montreal said the following:

The Official Languages Act is a quasi-constitutional statute that supersedes all federal statutes, including the Supreme Court of Canada but not the Canadian Human Rights Act. It is designed to implement section 16 of the Canadian Charter of Rights and Freedoms, which is itself a constitutional provision that is not subject to the notwithstanding clause. Under section 133 of the Constitution Act, 1867, all federal statutes are to be bilingual. That means that the law is in two languages. It does not mean that the English version is for English Canadians and that the French version is for French Canadians. It means that both versions are for all Canadians. In order to apply federal law, one must therefore be able to read both versions. This is a requirement of the job of being a judge of federal law.

I would like to say a few words about the right of citizens to be heard and understood by federal institutions in the official language of their choice. The basic principle of the Official Languages Act is to grant every citizen the right to address any federal institution in the official language of their choice. As the distinguished Commissioner of Official Languages pointed out in the House of Commons on June 17, 2010:

The nature of Canadian linguistic duality means that Canadians have a right to be served by the state in the language of their choice; it is, in effect, a right to be unilingual. The state is officially bilingual so that the citizen does not have to be. And citizens can live full and prosperous lives in Canada speaking only one official language, with no need to learn the other. This puts the burden of bilingualism on the state, and more particularly, on those who play national leadership roles.

Institutional bilingualism in the Federal Court means that panels must be constituted so as to ensure that the individual can be heard and understood without the use of an interpreter. The principle is recognized at that level. How can we justify the highest court in the land being held to a lower standard? The main argument against recognizing this right is the fear of reducing the number of judges able to sit on the Supreme Court of Canada.

Is there a conflict between two rights: the right of the individual to speak and be understood and the right of a limited number of jurists to be appointed to the Supreme Court?

I remember one debate that took place in the House when I had the honour of sitting as a member there. I listened with a great deal of interest as the Honourable Robert Stanfield explained the difference between a privilege and a right. It seems clear to me that a right must take precedence over a privilege.

It is a privilege to be appointed to the Supreme Court of Canada or any other court in Canada and to be called on to do an important job for the benefit of the community. In appointing a jurist to high judicial office, the Governor in Council is not recognizing that this individual had the right to be appointed, but that for a series of reasons, he possesses the necessary qualifications to be called to the bench.

What the bill says is that one of the necessary qualifications must be the ability to understand both of the country's official languages.

France Kenny, president of the Fédération des communautés francophone et acadienne, has put her finger on the problem. She recently said:

Bill C-232 is presented as a choice between legal competence and bilingualism, but that is a false choice. The Canadian Charter of Rights and Freedoms ensures that bilingualism is one of the essential legal qualifications for sitting on the highest court in the land.

Would it be impossible to find qualified jurists if this additional criterion were adopted? Eight of the nine sitting Supreme Court judges have the necessary professional and linguistic qualifications. Is it really impossible to imagine that we can find nine out of nine? In a federation such as ours, knowledge of both official languages is an additional qualification that should be required of those who aspire to be members of the highest court in the land.

Sometimes, honourable senators, I think we are going over old ground because we do not recognize the progress that has been made in Canada. We are ignoring Canada's youth, who are already more open to the world than their predecessors and who show a great deal of promise. People no longer talk about learning a second language, but about the importance of learning a third language in this global village. The bill before us is a sign, an encouragement to future generations, especially the jurists of this generation, telling them that it is time to modernize the Supreme Court of Canada Act.

This bill will not be passed or studied in detail in committee because the Conservative government has decided it will not be, but this bill will be a beacon to light the way for future generations of jurists who aspire to be justices of the Supreme Court.

Adopting this bill will send a message from coast to coast reaffirming that Canada is a bilingual nation, a nation where linguistic duality is not an obstacle but part of who we are as a country. It sends a clear message; it sends the right message.

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