Posted at 11:00 a.m.
The bilingualism requirement for judges is currently the subject of debate because of section 133 of the Constitution. Is this so-called requirement mandatory in all provinces or only in Quebec? And what about New Brunswick, Canada’s only officially bilingual province? Thank you for the information.
Gaston Cote, Longueuil
Mr Cote,
The answer to your question is far from simple. To see clearly, we asked for the insights of professors Jean Leclair and Benoît Pelletier, respectively from the University of Montreal and the University of Ottawa.
Section 133 of the Constitution of Canada does not specify that judges must be bilingual. Rather, it says that each person who addresses a court – accused, witness, lawyer, judge – can use French or English, according to their preference.
Please note: however, not all courts in the country are concerned. The article applies to “all the chambers of the parliament of Canada and the chambers of the legislature of Quebec”.
At the federal level, that means the Supreme Court, the Federal Court and the administrative tribunals. In Quebec, these are the Court of Quebec, the Court of Appeal, the Superior Court and administrative tribunals (such as the administrative labor tribunal).
Why does Quebec appear in the text and not the other provinces?
“Quebec was mentioned because section 133 is a historic compromise between Canada and Quebec,” explains Jean Leclair.
In 1870, the act that created the province of Manitoba incorporated a similar article. This is explained by the fact that there was then a large proportion of Francophones in the region.
The equivalent also applies in New Brunswick, this time thanks to the Canadian Charter of Rights and Freedoms adopted in 1982. Article 19 (2) states that “everyone has the right to use French or English in all matters before the courts of New Brunswick and in all proceedings arising therefrom. »
“New Brunswick is the only province that has agreed to submit to this linguistic compromise,” explains Professor Benoît Pelletier.
This does not mean that no language rights exist before the courts of other provinces. First, the Criminal Code of Canada allows any accused to choose the official language (French or English) in which his trial takes place and even to have a judge or jury who speaks the same language as him. This applies to all criminal cases in Canada, regardless of province.
Next, a rule of “natural justice”, which is not enshrined in any law, also ensures that anyone who addresses a court has the right to be understood by the judge, regardless of the language speak. This in effect guarantees the right to an interpreter.
It is therefore not written in any law that a judge must be bilingual. A tribunal must simply ensure that it can respect the rights of the people appearing before it.
In Quebec, an open conflict opposes the Minister of Justice Simon Jolin-Barrette to the Chief Justice of the Court of Quebec Lucie Rondeau. The latter asked that judges appointed in Longueuil and Saint-Jérôme be bilingual to facilitate respect for the rights we have mentioned. The minister opposed it. Recently, the Superior Court ruled in favor of Justice Rondeau, finding that the Minister has “no word to say” about the needs identified by the judge.