Only in Canada would the country’s top court have to function in two official languages but let the judges who sit on the bench be exempt from having to be bilingual.
Go figure. Why has it never been legally required for Supreme Court of Canada justices to be as bilingual as their court pretends to be?
Is the court there to provide jobs for judges or give Canadians a chance to plead their case in the official language of their choice as the Charter of Rights and Freedoms and the Constitution claim?
Take the lower courts. All judges of the Federal Court bench have to be bilingual; so do all of those who sit on the Tax Court of Canada bench. There’s been no problem finding good bilingual talent to fill those jobs.
But what about the Supreme Court? We can’t have a bilingual requirement there.
Opponents of such a requirement fear it might limit job advancement for someone who’s prominent. Perhaps language is not a skill in this country? Is it a leisure activity then?
That’s some hobby, especially since there are 3,850 bilingual lawyers and judges across Canada from whom to pick the members of the bench.
So how does it all fit with the Charter and the Constitution? Don’t all Canadians have a right to be heard in the official language of their choice?
Perhaps someone will argue that the right to be heard in your own language doesn’t include the right to be understood by the judge in the same language.
NDP MP Yvon Godin, a proud bilingual Acadian, figured last year that it was high time to remedy that oversight and make the Supreme Court respect the Charter and the Constitution and conform to the bilingual standards of the lower federal courts.
So he introduced a private member’s bill in the House of Commons to make it law that all future appointments to the Supreme Court be for bilingual judges.
The bill sneaked through the House of Commons in a close vote. It’s now before the Senate where it’s sparking a storm of controversy.
The big anti-bilingual lobby is awake and putting a lot of pressure on Prime Minister Stephen Harper’s government.
The controversy blew up at the Canadian Bar Association conference last weekend, and Harper is caught up in the mess. He doesn’t control the Senate and can’t stop the vote. Several Conservative senators, especially those appointed by Brian Mulroney, aren’t the least bit anti-bilingual.
The debate is heating up. A lot of unilingual lawyers in this country believe they shouldn’t have to speak both official languages to have a crack at the bench of the top court some day.
The notion among some lawyers that they could lose out on the ultimate plum just because they’re not bilingual doesn’t sit well with them.
Harper seemed to go along with Godin a year ago when it was Nova Scotia’s turn for a seat on the Supreme Court bench. Harper had no trouble finding the best bilingual candidate, Thomas Cromwell.
But it was different back in 2006 when Harper appointed a unilingual judge, Justice Marshall Rothstein of Manitoba, to the Supreme Court bench. Rothstein was a special case. He was Vic Toews’ former law professor. Anybody who can teach law to Toews deserves a Supreme Court appointment.
Rothstein is a good judge. He knows his law but he has a severe handicap. He speaks only one language in a court that works in both English and French.
In Rothstein’s presence, the other eight judges have to deliberate in English, even when discussing cases that were conducted in French. Rothstein is the only unilingual judge among eight colleagues.
Sometimes he takes a pass on cases where there may be a lot of French spoken. That reduces the bench to eight. To avoid a tie, they reduce the bench to seven. That means a heavier workload for the judges, some of whom find the job demanding enough as it is.
Godin says it’s critical for judges of the Supreme Court to be able to understand what is being said and not have to rely on a court translator.
Retired Supreme Court justice John Major, a unilingual Calgarian, questions that. He says translations are good enough for judges.
He says that when he was on the bench, he had no trouble because the court translators were excellent.
Official Languages Commissioner Graham Fraser chimes in that perhaps a unilingual judge isn’t in the best position from which to assess the quality of court translations.
Godin insists that by definition, the judges of the highest court in a bilingual land should speak both languages and not just a few of them, but all of them.
To have a fair hearing, according to Godin, you need judges who know the law in both languages. Translation just doesn’t cut it.
Godin has the bilingual judiciary on his side, many provincial bar associations, and, understandably, all of the French-language jurists’ associations in Alberta, Saskatchewan, Manitoba, and British Columbia. He has the premiers of several provinces with him as well.
Nevertheless, the vote at the CBA event last week shows we have yet to see what the final judgment will be.
Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux
@rogers.com.
For more on the CBA conference, see "
In-house counsel seeking lawyers as project managers," "
Lawyers assail crime agenda," and "
Nicholson offers lots of words, little substance."
For video of the CBA conference,
click here.
