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Bill C-232: Should Bilingualism be Required at the SCC?

On Monday, March 23rd, the House of Commons debated Bill C-232, an NDP impetus to require that Supreme Court justices have knowledge of English and French. The bill, tabled by New Democrat Official Languages Critic Yvon Godin, proposes that section 5 of the Supreme Court Act ( R.S., 1985, c. S-26 ) be amended to add that “any person referred to in subsection (1) may be appointed a judge who understands French and English without the assistance of an interpreter.”

In an emailed press release sent to TheCourt.ca, Mr. Godin is quoted as predicting that the bill will be passed. He explained that the bill “has received unprecedented support from a wide range of Anglophones and Francophones, because they understand that it could be detrimental for a Supreme Court justice to be unilingual.” The press release went on to clarify that rather than being drafted in one language and translated to the other, Canadian statutes are drafted independently in English and French. This means that in order to understand the subtleties of the law, justices must understand both languages.

Mr. Godin also said that “the interpretation of the law must never depend on simultaneous interpretation, although I have the utmost respect for the work of interpreters. The parties’ right to a fair trial is at stake. Simultaneous interpretation and translation are not sufficient for judges since the resulting meaning is often different from the original … [f]or years the government has refused to make language skills a criterion for the appointment of Supreme Court justices. The government is out of touch with people and their needs and this must be corrected. New Democrats insists that all parties must be able to be heard in conditions that do not put them at a disadvantage in relation to their adversary.” Mr. Godin concluded by encouraging all MPs and the public to support his bill.

Mr. Godin expressed these views during last Monday’s House of Commons debate over Bill C-232, placing particular emphasis on the potential injustices that could occur simply because one was not properly understood during their trial. But while several members commended the tabling of Bill C-232, some members voiced their disagreement with the proposed bill. Conservative Party member Steven Blaney (Levis-Bellechasse) noted that the appointment process already recognizes Canadian diversity; the Supreme Court Act requires that at least three of the SCC’s judges must be from Quebec, effectively recognizing Quebec’s civil law tradition, and the SCC selections are based on the recognition of legal pluralism and regional diversity. Also, due to the availability of legal proceedings in both official languages and the fact that our national institutions are bilingual without requiring every individual to be bilingual, the Supreme Court is a “model of institutional bilingualism” (1120).

Conservative Mike Allen (Tobique-Mactaquac) echoed Mr. Blaney’s argument that the Supreme Court already demonstrates bilingualism by providing all its services in both languages and allowing parties to use either language in written and oral proceedings. He added that all but one of the current SCC judges are able to hear cases in either official language without the aid of an interpreter; as well, high-quality interpretation and translation services are available during the court’s hearings, and ongoing language training is available to the members of the court. Like Mr. Blaney, Mr. Allen also noted that the Act requires at least three SCC judges from Quebec, honouring the country’s bi-juridical nature, and that the court must demonstrate a broader legal pluralism by ensuring that its judges are drawn from all regions of Canada.

These Conservative critiques did indicate the importance of maintaining competence in both official languages, but de-emphasized the primacy placed upon bilingualism to the perceived detriment of pluralism. Whether this opposition will be strong enough to defeat the bill is a matter that will be watched closely by TheCourt.ca in the coming weeks. Given that 2009 is the 40th anniversary of the Official Languages Act, the renewal of this debate could not have come at a better time.

[filed: Official Languages]

24 Responses to “Bill C-232: Should Bilingualism be Required at the SCC?”

  1.               Gerry M. Laarakker

     

    With the greatest of respect, I rather have a good legal mind on the Bench than someone bilingual because he or she is bilingual. From the West you won’t get too many bilingual candidates, so this is a great opportunity at further alienating the West at the expense of Quebec. The subtleties of language are such that only a native French or English speaker would appreciate the differences.

    Note the recent whine by Jeff Simpson in the Globe and Mail about how Quebec is always “demanding”.

    We have bigger issues to address than whether or not we have a semi bilingual Bench at the SCC. After all, do we not have Quebec judges who might enlighten their Anglo colleagues?

    Bad idea.

  2.               Hugo Cyr

     

    Gerry M Laarakker wrote: “After all, do we not have Quebec judges who might enlighten their Anglo colleagues?” According to your logic, why should you expect judges from Quebec to be bilingual? What if the best legal minds in Quebec were unilingual? Imagine yourself arguing in English an appeal in a criminal case on a Friday afternoon and the bench is composed of only 5 judges, 3 of whom only understand French. Would you truly feel that your case has been heard, especially if your appeal turned on the interpretation to give to a statute or a contract written in English or the proper meaning or qualification of a testimony given in English? Remember, the Court’s interpreters only translate the oral arguments; nothing in the case file gets translated.

    You’ll probably reply that those 3 unilingual judges would probably NOT be the best legal minds from Quebec if they can’t read half of the relevant legal materials upon which they’re called to judge. And that’s the point. This issue is not about Quebec, it is about the rule of law: one’s case should be decided by judges who are able to access the relevant legal materials directly rather than having to rely on hearsay from colleagues or law clerks to guess what a case is about.

  3.               Caroline Voisard

     

    I agree with Mr. Cyr that this is a question of rule of law, maybe also protection of minorities. But don’t you think the comprehension of both french and english by a supreme court judge is even required by the charter? By an express disposition like sec. 19 and not only by unwritten principles?

  4.               Kim McConnell

     

    It is a pity that once again we have to put the needs of the French-speaking minority ahead of the needs of the English-speaking majority. We have already seen how the Official Languages Act has led to the over-representation of French-speakers in the Federal Public Service as French-speakers are more likely to be bilingual than English-speakers. The reason is that English, as the majority language (not just of Canada but also of the world), is easily picked up even in Quebec where the last few governments have done their best to make English both invisible & illegal. French, on the other hand, is only spoken widely in Quebec where it is the sole official language and in New Brunswick where both languages have equal status, thus elevating the 30% French-speakers to equal status with the 70% English-speakers.

    In Canada as a whole, only 22.7% are French-speakers and they are located mainly in Quebec & New Brunswick. The Rest (Most) of Canada is unilingual English and the English-speaking majority has been at a disadvantage ever since the OLA in 1969. We have already noted the alienation of the West as they are shut out from the Halls of Power. The same thing will happen in the Supreme Courts when ALL Judges have to be bilingual, once again giving preference to French-speakers. Only 17% of Canadians are self-assessed as bilingual but Jack Jedwab of Canadian Studies puts this figure at 12%.

    Canada is rapidly becoming a country ruled by the French-speaking minority to the detriment of the English-speaking majority. Only in Canada has the minority been given so much power and control without a civil war in the making. What does this say about the complacent Canadian? Pathetic or just plain stupid?

  5.               I. Hall

     

    Kim McConnell writes: “It is a pity that once again we have to put the needs of the French-speaking minority ahead of the needs of the English-speaking majority.”

    Unfortunately, this kind of rhetoric has become too common. In its essence, the argument usually runs along these lines: “Anglophones don’t speak French, but francophones speak English; therefore measures requiring bilingualism discriminate against anglophones.”

    This argument is paradoxical. It says that since francophones have made the effort to become bilingual and anglophones haven’t (in the same numbers), our country might as well just function in English. Francophones, based on their bilingualism, are thereby deprived of the right to receive services and participate in government in their language, while unilingual anglophones are rewarded for their recalcitrance because it is judged unrealistic to expect them to make the same effort as francophones.

    My answer to this is that what’s good for the goose is good for the gander. If we can require francophones to be bilingual, we can require that of anglophones too.

    Kim McConnell writes, “The reason is that English, as the majority language (not just of Canada but also of the world), is easily picked up even in Quebec […]” This is a facile dismissal of a legitimate achievement on the part of many Quebec francophones, and one for which we anglophones should be grateful, rather than treating it as something we are entitled to expect of them. If French language classes in some schools are not good enough, then it is the citizens’ duty to ensure that the opportunity to learn French well is provided in their province.

    Also, English is clearly not the “majority language of the world.” And even if it were, that would only reinforce the necessity for Canada to make French Canadians feel at home in their own country.

    It is of course true that there are higher rates of bilingualism among francophones. It is taking some time for people to adjust to the new state of affairs in which the English and French languages are accorded equal status and respect.

    However, rates of bilingualism among anglophones continue to increase, and will continue to in the future. Most people now understand that learning French is part of a good education. We will not turn back the clock on bilingualism, because it is one of the fundamental political compromises guaranteeing that our government represents the interests of all its citizens equitably, thus helping to preserve the unity of our country.

    One last point – only 64% of New Brunswickers are anglophone, not 70%.

  6.               N Lensen

     

    To see the true issues more clearly, take an issue to the extreme. Our country has increasing populations of other linguistic groups and at some point demands will likely come forward for service in these other languages. How many languages should our governments services be available in? One, two, ten or twenty?

    The issue here is not whether English or French is the superior language or the language of choice – of one percentage point or another. The costs associated with the silliness of producing all legislative and regulatory documents and support of those requirements in two languages is duplicitous and wasteful of our taxpayer generated resources. On a cost issue alone, many smart people in the national capital region or vicinity thereof equate the costs of bilingualism as an amount equal to, or exceeding, our national debt. If the government were openly honest (transparent) about cost associated with official languages programs there would likely be a revolt across this country – by all citizens regardless of their linguistic preference. We are all in this together; we are all paying for the wasted resources.

    A secondary issue here turns on our elected representative not voting in accordance with the wishes of their constituents – that is, our MPs no longer do their best to represent us, their supporters (meaning both voters and taxpayers who pay their salary and pensions). Our MPs are not listening to us.

    If our Members of Parliament did in fact vote on this issue in keeping with the demands of their constituents – it seems really odd that the country would be so neatly and clearly split along the lines of the political parties. I suspect the vote on this bill (like so many others) was a vote mandated by party leaders and does not truly represent citizen’s position on this issue.

    We need to hold our MPs accountable for their conduct and their decision-making supposedly on our behalf. Ask yourself whether your MP voted in accordance with your views and wishes on this issue. If they did not, you share your views with your MP.

  7.               Orlin Olsen

     

    I must agree with the comments made by Kim McConnell. Demographics clearly shows that Canada is not, and likely never will be a truly bilingual country. Western Canada for instance, which has over 30% of the nation’s population has a French population of only around 2% or less. Few people there are bilingual or have any need to be. Based on linguistics there would be a very limited pool of bilingual Judges who could be considered for appointment to the Supreme Court. Certainly many of that region’s most able legal minds would be excluded.

    I. Hall writes about the rights and needs of Francophones in Canada and that is all very good. It is a pity however that the Francophones of Quebec have never seen fit to extend the same rights that they themselves so often demand to the Anglophone minority within their own jurisdiction. Is there legislation prohibiting the French language anywhere in English Canada, complete with language police to enforce such a regulation? No, only in Quebec. We should fear a Supreme Court dominated by justices who might foster and enforce such ideas.

    English may not be the “World Language”…. yet, but it is certainly the Lingua Franca of the present era. It essential for Canadians to be able to be able communicate well in that language. Bilingualism has been largely a failure wherever it has been tried, (see Belgium) and will probably fare no better here.

  8.               Colleen McIntosh

     

    Totally agree with Kim McConnell and Gerry Laarakker’s posts. See no reason why ALL judges must be bilingual, afterall there are translators available, if need be. Canada is not bilingual, it simply has two official languages. This fact is borne out by government statistics, that fully 97% of the entire Country (outside of Quebec) is English and not French.

    Believe that merit, education, skills, competency and experience outweigh the knowledge of a minority language as qualification to ANY job. The precedent must not be set: that all positions of power and authority have be bilingual. The trend and push to further discriminate against the vast English majority has to be rescinded, immediately.

    The best legal minds are preferred and not the most bilingual. In Canada, the French have learned English as it is the universal language of the World. English is utilized for all commerce, trade and business globally. Conversely, French is declining Worldwide and across Canada. Globally, French accounts for 1% of the entire population. Common sense must prevail and the best qualified candidates, should be hired or promoted in all jobs/careers.

    Canada must look to the future (English), instead of the past (French). Merit outweighs French!

    My twoonie’s worth…Colleen McIntosh

  9.               Caroline Voisard

     

    Then it’s time to admit Trudeau was wrong, and get rid of the Official Language Act! Talk straight. The Charter exists and protects bilinguilism. If you want unilinguism and less language rights for the french speaking population, you need to amend the Charter.
    Do you honestly agree with the 1986 Supreme Court decision that said that a person has a right to speak french in court but has no right to be understood? What kind of right is that? Better say there is no right at all. As long as you dont obligate a judge to speak a specific language (french), I see nothing that could justify a limitation to francophones rights to be understood by a judge in their own language. C-232 could well be required by the Charter.

    Biliguism IS a question of competence. Because canadian laws are written in both languages, because a lawyer is entitled to plead in french, because a good percentage of canadian doctrine is written in french. Why then would ‘the best legal mind’ would have to rely on his clerk to have a resume of all these french written important juridical texts? If the only criteria is the ‘best legal mind’… how about a dishonnest judge? Or a 80 year old judge who is better legal mind than a 60 year old? What if the 9 best legal minds in Canada were all men? The fact is that the governement, when nominating a supreme court judge, doesnt only rely on ‘merit, education, skills, comptency and experience’. In fact, merit includes a lot of criteria: being able to understand the lawyers directly, and being able to read the relevant legal material is certainly one of these. We also tend to forget that we are only talking about 9 individuals… If we cannot find 9 top or best legal minds who speak french in Canada… we really have a problem with bilinguism in Canada.

    Learning another language is not that difficult. Send a judge in France for two months in an all-french environment and he will come back bilingual. In Quebec it wont work because he will always be abble to be understood in english….

  10.               Michael MacNeil

     

    Caroline V

    Two months in France and a person will become (by some magical osmotic process) fluently bilingual? What planet do you live on? It can take years to master a language. How many years have you been speaking English? You obviously have not mastered it yet. Language “skills” are not like learning Microsoft Excel or Power Point yet it seems as though that is how it is viewed by the French speakers of this country when they spout “just LEARN the language”. Keep dreaming.

  11.               Caroline Voisard

     

    Was it so bad ? :-)

    I’ve never been two months in an all English environment, unfortunately. I have learned English as a second language in school. You are right, I don’t master it, but I do understand it without the assistance of an interpreter (as required by C-232).

    On the other end, I’ve been in an all Italian environment for three months (where no one talked my language) and did learn that language. Same for my husband who didn’t know a word of French and learned it after one month living among my French family.

    I just think that someone who is considered to be one of the best legal minds in Canada can learn French if he really wants it, just as Harper did because he needed to. When no one speaks your language, you have no choice to learn. At least, this is my experience with Italian.

    Live two months in a small French village, or marry a French girl. Keep dreaming.

  12.               Caroline Voisard

     

    Another thing. It’s not the comprehension of the subtilities of French that is important (this can take more time to learn…even for a French person!)… but the ability of the judge to listen to the lawyer who is pleading in front of him and not to a little plain voice in earphones. Listen to the interpreters in Parliament debates… It’s booring and completly unsexy. A lawyer pleading in front of a Supreme court judge wants to impress, he wants to convince. Instead, he has to rely on a person translating live his pleading in a monotonous voice.

    It’s like if the lawyer was reading is plea (with no intonation). Or watching a movie where the dubbing is live and done by non-actors who didn’t even read the text before.

    A good plea is not only a good text, but a good interpretation, a good performance. A lawyer wants to do his best and he cannot do his best if the judge doesn’t understand him directly.

  13.               Deryk

     

    Kill Bill C-232. It is a thinly veiled attempt to undermine the power shift from east to west. It is well known that there are few fluently bilingual Supreme Court candidates west of Ontario. Bill C-232 will make the Supreme Court lopsided in favor of Quebec, Ontario and New Brunswick and alienate the west, Nova Scotia, PEI and Newfoundland.

  14.               Michael MacNeil

     

    Perhaps it is time for everyone in this country to learn Mandarin or Cantonese. The way our government is shamelessly selling off our country to the Chinese and with all of the bilingual signage in B.C. (English and Mandarin) maybe this makes more sense. To Caroline V, your grasp of English is quite impressive and I commend you for it. But, does it not make more sense that you learn English to communicate with 80+ percent of the population or that I learn French to communicate with the minority French-only speaking population within Quebec?

  15.               Beth Trudeau

     

    The hypocracy of the social engineers who want English Canada to become French, is astounding.

    The French say the English MUST learn French, otherwise the French culture and language might become “extinct”.

    Even though they LIVE and SOCIALIZE in French, they proclaim this will happen unless the English MAJORITY become French.

    My question is, if the French that live, breath and function in French are “afraid” of this happening, yet it is their FIRST language, how could they ever expect the English majority, who live, breath and function in English, especially out west, can maintain a language that they do not use? And, why would the English want to lose THEIR language, history and culture? The British WON at the Plains of Abraham. NOT the French. And, Canada does NOT have two founding cultures. Quebec might have. Upper Canada did NOT, no matter how much Dalton McGuinty wants to revise history, or the premier of New Brunswick.

    Do they expect the English to live in French? If not, how will the English majority in British Loyalist Upper Canada, not to mention out west, to be able to maintain a FOREIGN language? A language that less than 3 out of every 100 people you meet, outside of Quebec, speak.

    If languages are “so easy” to learn, why have the 3% of French speaking Canadians outside of Quebec, not been able to learn the language of the MAJORITY? Why is it that when you go on vacation to Mexico, Spain, France, Greece, Germany or Holland, you can pick up a word or sentence, but good luck retaining that info.

    Seriously, why are the English not being allowed to live in THEIR culture, in THEIR language?

    Be concerned that Alberta will be ticked off if they cannot have representation in the Senate.

    They are the only “have” province, and VERY English (Eastern Bums and Scums) and we had better not tick them off enough to say they will separate. I would rather see Quebec (have not & using Ottawa hospitals unabashadly) leave Canada, than Alberta.

    And that is the way we are headed with this VERY DISCRIMINATORY BILL.

    Will the UN deem it anti human rights, the way they did Bill 101 in Quebec? Will the government care anymore than they did about the ethnic cleansing in Quebec in the 1970’s?

    The illusion that has been created, pretending there is more French around us, by changing street names and small town names to French names, by closing English small town schools that have been around for a century or more, and replacing them with “immersion” schools – funny how the new schools all have FRENCH names.

    The English had better step up to the plate soon, before our children are totally forced out of this country to work, simply because they speak the language of the MAJORITY.

    Shame on the Liberals, NDP and Seperatists for passing such a discriminatory bill.

  16.               Colleen McIntosh

     

    Think that Caroline Voisard is completely right and I completely concur…time to end the farce of Official Bilingualism, in Canada. As previously noted, we have two official languages but outside of Quebec we are English, by an absolutely huge margin. The real question is whether we as Canadians want to limit the possible job pool for Judges to one Province, in the whole Country? We need the principals of merit to outweigh minority linguistic skills, for any given job. Bilingualism has nothing to do with the interpretation of law or the competencies of the Lawyers or Judges. Where does it end, will all jobs be declared bilingual imperative? Soon, after the precedent has been set, it will be invoked that all Police, Lawyers, Teachers, Doctors, Nurses, Soldiers, Engineers and etc., must be bilingual. This is simply a linguistic cleansing of the English majority. We cannot service ALL jobs in Canada, from the Province of Quebec. The English have a right to live and work in their chosen language and culture, same as the French in Quebec.

    As per Government Statistics, citizens of Canada are: English, Mandarin/Chinese, Spanish, Italian and finally French is number 10 on the list of languages. Shouldn’t we then be accommodating all these other languages, first? Official Bilingualism has served as a form of discrimination, racism and bigotry of the English majority. This simply must be revoked and rescinded, without further delay.

    Let’s face some harsh truths, Quebec is, officially and unilingually, French. Quebec and the French, expect the rest of Canada to be officially bilingual and not English. Quebec hasn’t even signed onto Canada, yet. Why are we spending all this time, money and efforts to satisfy a linguistic minority who consistently sends a clear message of seceding from Canada, into our Parliament? With a population in swift decline in both Canada and on the World stage, the remaking of Canada into a “French” Nation, will not ultimately be successful. English is the universal language of the World, it’s time that Canada followed suit!

  17.               Colleen McIntosh

     

    One has to wonder why is has been declared necessary to enforce “bilingual imperative”, status to the Judges. As Quebec is guaranteed a minimum number of French Judges, one has to wonder why we must declare all Judges, bilingual or French. Is there a genuine need, for additional French or bilingual Judges? Are the French requiring more legal representation in Canada vs. the English??? Is there an actual demand or need for more French or bilingual Judges, due to the French involvement in our Court Systems?

    Would really like to know the answers to my questions, because unless you can answer YES, then there is no need for Bill C-232. Simply have the French Judges hear the French cases, seems pretty simple to me. The English Judges can hear the English cases and everyone is happy and well served, in both languages. See, problem solved!

  18.               Michael MacNeil

     

    It’s too bad that MP’s completely ignore their constituents. You mean to tell me that the majority of Canadians in EVERY Liberal and NDP riding are in favor of this Bill. When EVERY single MP of a given party votes the SAME on any bill this is not DEMOCRACY! Not even close. This should be illegal and each MP should be allowed to vote as he or she sees fit. End of story. Any time EVERY MP of a given party votes the SAME on any bill it should be investigated and the bill put on hold or thrown out. Each MP should be forced to consult EVERY SINGLE voter in their riding to find out what the MAJORITY WANT. We do not have a democracy and it is time to put an end to this charade!

  19.               Caroline Voisard

     

    You all seem to forget we are only talking about nine individuals with very high learning capacities. Nine individuals who would have to learn French so the constitutionally protected French minority can be understood in a Federal institution of very high importance. We’re not talking about every Canadian who would have to learn French. Just nine individuals. Please, think of it in the other way: an unilingual English speaking lawyer in front of a unilingual French judge. And you’re telling me it’s the lawyers who have to learn French, not the judge? French are the minority and yes, English are the majority. But both have the same rights in federal institutions.

  20.               Caroline Voisard

     

    I also have to remind you that this is not a bill coming from Quebec, but from a member of Parliamant coming from New-Brunswick.

  21.               Lisette

     

    Caroline Voisard, I have to remind you that this Bill is coming from a francophone MP.

    You hypothetic scenario of a reversed situation, where a unilingual Anglo lawyer is in front of a unilingual French judge, is not realistic. Supreme Court consists of 9 judges, majority of them are from English Canada and, therefore, would always be English-speaking.

  22.               Colleen McIntosh

     

    Hello Caroline V…the problem is that we are not really talking about only nine people, in Canada. It’s a slippery slope, as you very well know. Official Bilingualism was sold to English Canada as “where numbers warrant only”…a guarantee of service at the Federal level. But as you can plainly see, it has morphed into all levels of Government (municipal, provincial and federal) and that doesn’t even note all the private and public companies, that have followed suit with requiring bilingual imperative status for the majority of all job postings. Where does it all end??? If, it’s good enough for the Judges then the precedent is set for ALL jobs in Canada. The madness must end, here and now!

    Agree with Michael MacNeil post…it makes infinitely more sense for the minority of unilingual French speakers to learn English than to force the overwhelming majority of Canadian citizens, who just happen to be English, to learn/embrace French!

    Canada is more divided then ever before because of these racists language laws (official bilingualism). Time that Canada looks to the future, which is ENGLISH instead of following the past, which was French!!!

    Colleen McIntosh

  23.               Michael MacNeil

     

    New Brunswick is the only Officially Bilingual province and the way the Francophones have taken control of that province due to bilingual requirements it might as well be called New Quebec. Your point about nine people having to “learn” is not valid. If they were permitted to sit first then “learn” the second language then it would be valid but this requires any person that might ever consider sitting in the Supreme Court to learn French first. Even if they reside in a province where Francais in not spoken at all. The idea here is that everyone should have to learn French if they ever want to apply in the future for any position that is “officially bilingual”. A hell of a lot more than nine individuals.

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