Justice Michael Moldaver, one of two justices nominated by Prime Minister Stephen Harper to sit on the Supreme Court, apologized to a panel of MPs on Wednesday for his limited abilities in the French language as opposition mounted to his appointment.
"I have the greatest respect for the French language and culture, including its civil law tradition, the Québécois, as well as other French-speaking Canadians," Moldaver said in his opening statement to MPs before taking their questions as part of the Supreme Court selection process.
Moldaver, an Ontario judge and former defence attorney, vowed that if his nomination was successful, he would do "everything in my power in the years ahead to become more proficient in the French language."
Moldaver and Justice Andromache Karakatsanis were named to the country's highest court Monday, chosen from a list of six candidates that was drawn up by a small group of Conservative, Liberal and NDP MPs. Both judges are members of Ontario's court of appeal. Karakatsanis is bilingual but Moldaver is not.
Moldaver's inability to understand French immediately prompted reaction from the Bloc Québécois and it has also put the NDP in a tough spot.
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New Democrat MP Joe Comartin was a member of the selection panel and signed off on the list of six candidates, but his party has supported a bill from one of its own members, Yvon Godin, that would require Supreme Court judges to understand both official languages without the aid of a translator.
NDP can't explain contradiction
Comartin told reporters that he can't explain the apparent contradiction in positions because the selection panel's deliberations are confidential and he can't discuss how the list was decided upon.
He did say that he is "not at all satisfied" that Moldaver isn't bilingual and that questions should fall to Harper and Justice Minister Rob Nicholson about their decision to pick him over the other candidates on the list. The other four names on the list besides Moldaver and Karakatsanis have not been revealed.
During the hearing, the New Democrat MP asked Moldaver whether he made it clear when he was first approached about the nomination that he was not bilingual — and the judge replied he did.
"I have no questions about your ability except for that one crucial element," Comartin said.
Moldaver replied his lack of fluency would make his job on the top court that much more of a challenge, but noted the court also provides simultaneous translation.
Calls to reconsider nomination
The NDP's Interim Leader Nycole Turmel told reporters Wednesday morning that it is her party's position that Supreme Court judges should be bilingual.
"We won't support the recommendation," she said. Turmel said Harper had enough names on the list that he could have chosen two bilingual judges from it. She suggested that in the future, the NDP may not participate in the selection process unless bilingualism is made a criterion for the job.
"We will have to discuss this," she said.
'I am quite convinced that he'll be able to work in French in very short order.' —Bob Rae, Liberal leader
The Quebec Bar Association is also calling on Harper to reconsider the nomination, saying it denies francophones equality before the law. The bar association says Canadian citizens have the right to expect they will be understood regardless of what official language they speak when they appear in court. The group's president, Louis Masson, said Moldaver's nomination signals a "step backwards" because he is replacing a spot that was left vacant by the retirement of a bilingual judge.
Bob Rae, the interim leader of the Liberals, said it is his party's "preference" that Supreme Court judges understand both languages and that the court should be a bilingual institution.
He said it shouldn't be assumed that someone can't learn French and that Moldaver and Karakatsanis are both talented jurists and he has confidence in their qualifications and abilities.
"I am quite convinced that he'll be able to work in French in very short order," Rae said about Moldaver.
Conservative MP Brent Rathgeber simply asked Moldaver if he understood the simultaneous translation when Karakatsanis made part of her opening statement in French. Moldaver said he had no issues.
Karakatsanis addresses scrutiny of nomination
Karakatsanis also addressed some of the scrutiny of her nomination. Although she had served on both Ontario's Superior Court of Justice and the Court of Appeal in the last decade, she spent many years working as a lawyer within the Ontario government — including as the top bureaucrat in the government of former Progressive Conservative Premier Mike Harris. Some reports suggested Karakatsanis had Conservative connections.
"I take great pride in my career as a non-partisan, professional public servant," said Karakatsanis, who speaks French and Greek as well as English.
"I'm proud of having received premier appointments from the leaders of three different political parties. During my 15 years in the Ontario public service I served with 15 ministers and four premiers. I have enormous respect for the work of elected officials and I believe deeply in our system of parliamentary democracy with the three pillars of the legislature, the executive and the judiciary."
Moldaver says 'restraint' needed before changing law
On another topic, Moldaver declared the need for judges to think carefully before touching the nation's laws or creating new ones — a message likely to resonate with Conservatives who have complained the top court is too activist.
"Under the rule of law, it is not our function to create laws, nor do we have the right to direct governments on matters of policy. Under the Constitution, we have been given the authority to determine the legality of laws passed by Parliament and the legislatures," Moldaver said.
"In fulfilling that role, we must never lose sight of the fact that we are being asked to strike down laws that had been enacted by a democratically elected majority of parliamentarians. The need for caution and restraint in these circumstances is self-evident, but the ramifications of our decisions must never prevent us from acting fearlessly in accordance with the mandate we have been given."
Karakatsanis also acknowledged the supremacy of the legislative branch in creating laws, but her comments were more qualified.
"Parliament has given judges the awesome responsibility to ensure that government acts in accordance with the Canadian Charter of Human Rights and Freedoms, but we do so with respect, recognizing that it is the responsibility of elected officials to make the difficult public policy decisions and make the difficult decisions on how to spend public funds," she said.
"Of course, if the law violates the charter, it must be struck down. This is the role that Parliament has given to the judiciary."
Apart from the NDP, MPs were generally gentle in their questioning of the jurists.
The committee does not have a veto over the nominations to the Supreme Court — constitutional expert Peter Hogg explained at the outset of the meeting that the main objective was to introduce Canadians to the pair and lift the veil at least partly on the process.
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