Should Supreme Court judges be required to be bilingual?

What is justice if you cannot make yourself heard properly? What is justice when an ill-informed person determines your fate?

We can all attest to it: even people who share a language occasionally have difficulty understanding each other. Languages are alive. They are characterized by nuances and subtleties which vary, namely, according to cultural references and speakers’ intentions.

However, while we cannot aspire to fully understanding others, why not strive to do so, to reduce the gap separating people by using language, to improve understanding, to succeed in formulating informed opinions as much as possible?

Before a person is appointed as a judge, consideration is given to a host of factors linked to that person’s competency, professional experience and personal qualities. While we see in-depth knowledge of the law as fundamental prior to taking up these duties, so too are language skills. We will explain that below.

First of all, bear in mind that the laws of Canada are not written in one language and subsequently translated. They are drafted in parallel, in both official languages, and neither version takes precedence over the other. The Official Languages Act, RSC 1985, c 31 (4th Supp) and the Canadian Charter of Rights and Freedoms are in place to preserve this historic accomplishment.

The Official Languages Act states that:

Both versions simultaneous and equally authoritative
13. Any journal, record, Act of Parliament, instrument, document, rule, order, regulation, treaty, convention, agreement, notice, advertisement or other matter referred to in this Part that is made, enacted printed, published or tabled in both official languages shall be made, enacted, printed, published or tabled simultaneously in both languages, and both language versions are equally authoritative.

The Canadian Charter of Rights and Freedoms reads as follows:

Parliamentary statutes and records
18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.

Consequently, Canadian law is made up of two languages that are interwoven, inextricably linked. If a judge does not recognize that neither the English nor the French version of the law takes precedence over the other, and that the two are one, how can that judge fully enforce the law? How can that judge understand the law, without understanding it as it is? The judge will no longer embody impartiality, and rights will be threatened.

Based on this principle, language is a qualification like all others required to be a judge. The aspiring judge should focus his or her training accordingly. Simultaneous interpretation and translation are not enough: they are the result of an interpretation which often tends to stray from the original meaning.

The Supreme Court is the last legal resort, and it is imperative for judges to understand the subtleties of the law in both official languages, as well as the parties involved in proceedings, without the assistance of an interpreter so as to avoid being prejudicial.

To this end, in May 2008, Liberal Member of Parliament Denis Coderre tabled Bill C-548 which “amends the Official Languages Act to extend the duty to understand the official languages to the judges of the Supreme Court of Canada.”

While it extends the duty to understand to the judges of the Supreme Court, the wording nevertheless clearly indicates that the said amendment to the OLA will not guarantee that the nine Supreme Court judges will be able to hear a case without the assistance of an interpreter. In fact, the Supreme Court does not always sit with a complement of nine judges: it may sit with a complement of 5, 7 or 9. Therefore, instead of strengthening a bilingual legal system, Bill C-548 would open to door to the appointment of four unilingual judges. (At present, the Court comprises seven bilingual judges and one unilingual one. Another is in the process of being appointed.)

The proposed amendment to the Official Languages Act (OLA) in Bill C-548:

16. (1) Every federal court, other than (replaced by “including”) the Supreme Court of Canada, has the duty to ensure that:

(a) if English is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand English without the assistance of an interpreter; (b) if French is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand French without the assistance of an interpreter; and (c) if both English and French are the languages chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand both languages without the assistance of an interpreter.

To remedy this situation, in July 2008, New Democratic Member of Parliament Yvon Godin tabled Bill C-559 which “amends the Supreme Court Act and introduces a new requirement for judges appointed to the Supreme Court to understand English and French without the assistance of an interpreter.”

Proposed amendment to the Supreme Court Act in Bill C-559:

1. Section 5 of the Supreme Court Act is renumbered as subsection 5(1) and is amended by adding the following:

(2) In addition, any person referred to in subsection (1) may be appointed a judge who understands French and English without the assistance of an interpreter.

This amendment, without disrupting the current system, will make it possible in the long term to eliminate appointments that are contrary to the Act and the Charter. In so doing, we will better ensure respect for equality of authoritativeness as well as the vitality of linguistic communities.