C-203: An Act to amend the Supreme Court Act (understanding the official languages)
The proposed amendment raises certain constitutional concerns as to its validity. Although Bill C-203 is consistent with the Government’s policy of appointing only functionally bilingual candidates to the SCC, the eligibility requirements for the SCC are entrenched in section 41 of the Constitution Act. This means that Parliament on its own may not have jurisdiction to amend the Supreme Court Act setting out additional criteria regarding who can be appointed, but may also require the approval of the ten provinces.
As a result, Bill C-203 would undoubtedly provoke significant controversy and tension between Parliament, the Court and the provinces, and the legislation could be overturned by a successful constitutional challenge to its validity. If a legislative requirement of bilingualism were to be struck down, this could harm the Government’s long-term objective of ensuring that all judges of the SCC are functionally bilingual.