Judicial Bilingualism Is Good, But It’s Not Everything

MP Dennis Coderre’s recent bill tabled in the House of Commons, Bill C-548, “An Act to amend the Official Languages Act (understanding the official languages – judges of the Supreme Court of Canada),” proposes to amend s.16 of the Act so that Supreme Court justices are required to be bilingual (similar to the requirement for federal court judges). TheCourt.ca contributor Matthew Shogilev has already discussed the pros of such an amendment; I will discuss the cons.

The simplest and most obvious con is that a requirement of bilingualism restricts judicial selection for the Supreme Court. Let’s be honest here: when we express concern about monolingual judges, we’re really expressing concern about monolingual anglophone judges. (Monolingual francophone judges are few and far between for reasons that should be fairly obvious, not the least of which is that there is far less opportunity to practice as a monolingual francophone judge in Canada than there is to practice as a monolingual anglophone.)

Mr. Coderre’s bill would have rendered Justice Marshall Rothstein ineligible to serve as on the Supreme Court, as well as his predecessor, John Major, had it been introduced and passed in earlier years. The fact that both Justice Rothstein and Justice Major are representatives of the Western provinces to the Supreme Court should not be overlooked; the western half of Canada is almost entirely anglophonic. A bilingualism requirement would vastly shrink the pool of available jurisprudential talent from the Western provinces.

Consider also the Maritime provinces. The vast majority of bilingual legal practitioners in the Maritimes work and reside in New Brunswick, and this is one of the reasons a great majority of Maritime representatives to the Supreme Court have been from New Brunswick (all but three of them). One of the leading contenders for Justice Michel Bastarache’s emerging empty seat is Justice Derek Green of the Newfoundland Supreme Court – but Justice Green is not bilingual. Newfoundland has never had a representative sit upon the Supreme Court, and with no widespread tradition of bilingualism within its courts, it would likely continue to wait a long time should Mr. Coderre’s bill become law. (Prince Edward Island faces much the same problem, with an almost entirely monolingual judicial tradition, although it has had one representative to the Supreme Court: Sir Louis Davies back in the first quarter of the 20th century.) A requirement for bilingualism would vastly reduce the amount of judicial talent available for consideration, and the distribution of that remaining talent would mean a continuation of New Brunswick’s domination of the Maritime seat on the Supreme Court, with the occasional representative from Nova Scotia for variety.

It is worth remembering that judicial convention allots three of the nine seats on the Supreme Court to Quebec, and another three to Ontario (where bilingual legal practitioners are relatively common, and the pool of talented bilingual lawyers and judges is deep). These conventions exist to protect and glorify regional diversity, and part of that regional diversity is language. Is the convention not enough to protect our French speaking minority? After all, we don’t require Members of Parliament or even the Prime Minister to be bilingual (although, in practice, the Prime Minister is just about always going to be bilingual).

Should we sacrifice legal talent in favour of bilingualism – an issue that, while certainly important, is obviously constrained to a minority of cases and which can be dealt with through the Supreme Court’s staff of expert translators? Justices Major and Rothstein are proof enough that monolingual Anglophones can be productive members of the Supreme Court. (Indeed, Justice Rothstein seemed to have no problem sitting in decision upon the two most recent decisions of the Supreme Court involving linguistic conflict – Montréal (City) v Quebec (Commission des droits de la personne et des droits de la jeunesse), [2008] 2 SCR 698 and R v SAC, [2008] 2 SCR 675). Bilingualism is a fine policy to pursue, and one of our country’s unique legal aspects. That does not mean it should be a mandatory requirement; in this instance, we need not sacrifice practicality on the altar of idealism.

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6 Responses

  1. Hugo Cyr says:

    You ask “should we sacrifice legal talent in favour of bilinguilism (…)?” Since when being able to read a statute in BOTH its authoritative versions or being able to read the judgment being appealed or being able to read a factum not a “legal talent”?

    Since the legal norm is not to be found in only one of the two official linguistic version of a bilingual statute (e.g. all federal statutes…) but is rather located in the overlapping of the two versions, it is odd to claim that not being able to read half of the statute is not a relevant legal skill to be mastered by the highest court of the land. And as I mentioned in my earlier post on judicial biligualism (see comment on Matthew Shogilev’s post), what is even more troubling is that nothing in the court file gets translated by the Supreme Court staff – apart from the oral arguments and the Supreme Court judgment itself. That means that monolingual judges do not have access to their content apart from what they hear from other judges or they read from their clerks’ memos.

    In his conclusion, Mr. Bird tells us that “[w]e need not sacrifice practicality on the altar of idealism”. Unfortunately, I think that Mr. Bird confused one for the other: we should not sacrifice the practicality of having judges capable of reading the materials upon which they are called to decide on the altar of idealism, be it the hope for perfect regional representation or the hope of finding the oxymoronic “monolingual dworkinian Hercules”…

    The question of judicial biliguilism at the Supreme Court has nothing to do with political correctness or some feel good policy in favour of francophones; it is simply a LEGAL skill requirement.

  2. David G. says:

    …judicial convention allots three of the nine seats on the Supreme Court to Quebec

    The requirement for three of the nine seats to be filled by Quebecois judges is a legal one, not a conventional one.

    Section 6 of the Supreme Court Act, R.S., 1985, c. S-26, reads as follows: “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.”

  3. Chris,

    I think you raise a fair point in terms of the argument that mandatory bilingualism would place a premium on francophone judges. That said, I suspect that even in the most anglophone provinces, the portion of the population from whom Supreme Court Judges are drawn (i.e. the most educated and established members of the legal community) is more bilingual then you think.

    Remember that what would be required of SCC Judges under both the Liberal and NDP bills which recently received second reading is not full bilingualism, but rather the ability to read and understand both languages.

    If I am wrong, and there are in fact a paucity of bilingual judges from certain anglophone provinces, then, I think the proper course of action would be to work harder to promote bilingualism in anglophone legal communities. A bilingual judiciary is essential for prudent statutory interpretation, (see my post), and, (as per Mr. Cyr’s comments) to ensure that Judges on the SCC understand all the case materials in front of them.

  4. Luke says:

    Bilingualism for judges is only useful if the judges in question are truly bilingual — i.e. able to read and write and argue in French and English at the level of sophistication required of Supreme Court judges. There’s not much point in having an almost bilingual judge, because he or she is likely going to need to confirm the tricky nuances of difficult legislation with a native speaker anyway. Would a judge who can only meet the bare level of “the ability to read and understand both languages” be able to argue a narrow point of interpretation with a francophone colleague?

    Mandatory bilingualism is also a neat way to discourage immigrants from being judges: “You speak Hindi and Punjabi? That’s great, but we need you to learn French now.”

  5. Jesse says:

    I think requiring bilingualism for MPs is a fantastic idea, and I think you for proposing it. I think it has great promise for national unity, and for clearing out some of the chaff that has settled into Parliament.

    Or am I missing the point here?

  6. John says:

    Jesse, you obviously are missing the point here. I assume you are kidding.

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