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.