A bilingual Supreme Court? C'est pas si simple. - Macleans.ca
 

A bilingual Supreme Court? C’est pas si simple.


 

I haven’t seen a single mention of this interview with former Supreme Court Justice Claire L’Heureux-Dubé by those weighing into the debate over a law that would force nominees to the Supreme Court to be bilingual. While John Major’s opposition to the bill has been amply cited, L’Heureux-Dubé’s support for it has gone virtually unnoticed in the English media. And yet, her statements undercut one of the core arguments against the law—namely, that it’s a solution in search of a problem:

Mrs. L’Heureux-Dubé notes that that during the judges’ deliberations, no interpreter is present, and the presence of a unilingual judge at the table forces everyone else to defend their point of view in his or her language, most often English.

The former judge added that the presence of a unilingual Anglophone occasionally requires Francophone judges to write in English because the time needed for translations delays judgements.

Turns out the status quo does require substantial trade-offs, all of them borne by the Francophones on the Court. The benefits of having fluently bilingual judges are not simply “symbolic” as Dan Gardner describes them. (Gardner is hardly alone in opposing the law but, in his habitual way, he’s made the most lucid and compelling case against it, which is why it stuck with me.) In the case of deliberations, a fully bilingual Court would mean Francophone judges could defend their points of view in their first language rather than default to English. That alone amounts to a substantial change in process, never mind what impact it might have actual rulings.

Gardner also points to a laundry list of appointments that wouldn’t have happened had the Official Languages Act been extended to cover the Supreme Court—Bora Laskin, Brian Dickson, Bertha Wilson. Indeed: if things were different, they wouldn’t be the same. As Chantal Hébert points out, if Lester Pearson or John Diefenbaker were running for election today, they probably wouldn’t stand a chance of becoming prime minister until they learned some French. But what’s that got to do with whether things ought to be different?

Besides, it’s equally true that if Antonio Lamer had been born in, say, Port-Cartier or Rimouski, he probably would’ve been a unilingual Francophone and therefore unable to function in the Supreme Court L’Heureux-Dubé describes or, for that matter, the one Yvon Godin is proposing. More than two-thirds of Quebec’s bilingual population lives in either Montreal or Quebec City, and even a place like Trois-Rivières, which sits right smack in the middle of the two, has a population that’s 74 per cent unilingual Francophone. So while the current system allows for English Canadians born outside major cities to accede to the Supreme Court, the same can’t be said for rural Quebecers. (The results bear it out, too: most appointees from Quebec were born in either Montreal or Quebec City.)

All of which isn’t to say that a pool of potential jurists already diluted by regional, political or other considerations wouldn’t become impossibly so if bilingualism were added to the list. It’s just to point out that, far from being free of linguistic compromises, for the Supreme Court to keep functioning the way it does now requires at least three things: the tacit acceptance by Quebec’s unilingual Francophone majority that no one from its ranks will ever be appointed; a steady stream of suitable, bilingual jurists from Quebec; and an implied agreement among those on the Court that the closed-door business that happens without the aid of interpreters will take place in English. Do any of these conditions amount to an undue burden? Probably not, though L’Heureux-Dubé thinks they do. Still, that hardly makes them unsubstantial.


 
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A bilingual Supreme Court? C’est pas si simple.

  1. So while the current system allows for English Canadians born outside major cities to accede to the Supreme Court, the same can't be said for rural Quebecers.

    So the best way to achieve fairness is to make it so that rural people from any area of the country can't sit on the Supreme Court? Not to mention all the urban people who speak Hindi or Chinese as their first language and English as their second.

  2. Beyond which, we need to acknowledge that the system of Supreme Court nominations is already tilted towards Quebec, as 3 of 9 justices have to be from Quebec, which currently makes up a little over 23% of the population of Canada. I understand the point of that isn't population, but Quebec's distinct legal system, but still, it makes it hard to argue that Quebec is being hard done by here.

  3. I havn’t read Hebert and perhaps she has made this point, but it strikes me that due to the gov’t mandate to sync our federal common law with Quebec’s civil law biligual Supreme Court J ustices are a necessity arising out of the rewriting of our federal laws to embrace bijuralism.

    • Chantal Hebert has not been very rationale on this issue.

  4. Did you read through to the end of the post?

    "All of which isn't to say that a pool of potential jurists already diluted by regional, political or other considerations wouldn't become impossibly so if bilingualism were added to the list. It's just to point out that, far from being free of linguistic compromises, for the Supreme Court to keep functioning the way it does now requires at least three things: the tacit acceptance by Quebec's unilingual Francophone majority that no one from its ranks will ever be appointed; a steady stream of suitable, bilingual jurists from Quebec; and an implied agreement among those on the Court that the closed-door business that happens without the aid of interpreters will take place in English."

    The argument against bilingual judges is that it would significantly restrict the pool of judges by cutting out unilingual judges. That is certainly true and a good reason to oppose the law, as I do. But it is also a bit disingenuous as no one seems to care how restrictive the existing reality is since it only affects unilingual Francophones.

  5. And French as their third? Or maybe fourth?

  6. But the point being made is where do those Quebec judges come from?

    Or more to Philipe's point, where must those Quebec judges come from since a unilingual Francophone judge won't work?

    A huge segment of the population is automatically cut off already.

  7. It is a trade-off. Unilingual francophones are effectively out of contention, but bilingual francophones have more seats on the court available to them, and that number may be increased by the Prime Minister in power. Chretien liked to appoint francophones, and at one point the Atlantic Canadian judge and one of the three Ontario judges were francophones, so there were five francophones justices out of nine – a majority of the court.

    • But as you said, these "francophones" are also anglophones. It is simply impossible to be unilingual francophone in the Atlantic provinces, Ontario or anywhere else.

  8. They simultaneously interpret cabinet, don’t they?

  9. There is going to be more and more bilingual Angolphones in this country the growth of French language school will guarantee that. The supreme court is for the whole country and for all Canadians whether they are from Shediac, Sudburry , St-Boniface or Red Deer. Our chief jurists must rule on the laws that affect all Canadians. Sorry but being bilingual should an attainable requirement. I see nothing wrong that the Justices of the Supreme Court should be able to understand the language in which O Canada was originally written in as well as understanding the language in which it was latter translated into.

  10. Philippe
    This is a very thought provoking post- as most of yours are, by the way- but you beg the obvious question and don't even approach touching it: why no interpreter?
    And by way of comparison, how is this issue handled in other officially multilingual countries, such as Switzerland or Belgium?

  11. Mme L'Heureux-Dubé is talking about being able to communicate with a colleague behind closed doors in your second language, Mr. Major is talking about being able to hear appellate litigation in your second language.

    I don't think either one is wrong, but it doesn't seem to me that they're talking about the same thing at all.

  12. I guess my question would be: wouldn't the proposed law actually make it harder, in fact impossible, for a unilingual francophone to be appointed? By definition, a unilingual francophone isn't bilingual.

  13. Are judges too busy in their careers before becoming Supreme Court Judges to learn a second language? I bet they learn Spanish for fun so that they can speak Spanish in Cuba when vacationing.

  14. So while the current system allows for English Canadians born outside major cities to accede to the Supreme Court, the same can't be said for rural Quebecers.

    That is simply false.

  15. I tend to think if you are a decent candidate for a supreme court spot, picking up decent french shouldn't be beyond you. There's also a practical issue – the French versions of our laws are just as authoritative as the English ones. Subtle differences in wording and broaden or narrow the scope of legislation, and it would be nice to have judges who could evaluate this themselves rather than rely on clerks.

  16. It may or may not be true that the requirement for Supreme Court Justices to be bilingual restricts the pool too greatly and numbers would help if they were useful numbers. To be specific, since (I hope) Supreme Court Justices are not pulled willy nilly off the street the correct statistic would be an estimate of the fraction of Quebec and ROC potential candidates are unilingual.

    Frankly, I would be a little disappointed if someone bothered to learn all that latin and other good stuff, but could not be bothered to learn about their country's other legal heritage in the original language.

    Finally, I hope we can all agree, that while the liguistic capabilities on the Supreme Court are important, it is of far greater urgency that the Canadian oracles speaking from the centre of the universe ( i.e. the editors at the G&M) become bilingual to avoid any more dual face plants.
    http://www2.macleans.ca/2010/03/05/what-of-the-se

  17. It may or may not be true that the requirement for Supreme Court Justices to be bilingual restricts the pool too greatly and numbers would help if they were useful numbers. To be specific, since (I hope) Supreme Court Justices are not pulled willy nilly off the street the correct statistic would be an estimate of the fraction of Quebec and ROC potential candidates are unilingual.

    Frankly, I would be a little disappointed if someone bothered to learn all that latin and other good stuff, but could not be bothered to learn about their country's other legal heritage in the original language.

    Finally, I hope we can all agree, that while the liguistic capabilities on the Supreme Court are important, it is of far greater urgency that the Canadian oracles speaking from the centre of the universe ( i.e. the editors at the G&M) become bilingual to avoid any more dual face plants.
    http://www2.macleans.ca/2010/03/05/what-of-the-se

  18. As always it's a lose-lose situation for unilingual Francophones and a win-win situation for elite urbanites

  19. I think the explicit purpose of the bill is to ban rural Canadians who speak Swahili.

  20. Good post. And as point of information, I'd add this:
    Justice Committee 30/09/09, Comartin: "I had better put this on the record. I sat through the last four appointments to the Supreme Court. The last two rounds have been the prairie provinces and then the Maritimes. We're sworn to secrecy in sitting on those panels, but the reality is that there were more than enough candidates—I don't think I'm disclosing any surprises here—from both of those jurisdictions to meet that high test of bilingualism. I don't think I can say anything more than that without going into the specifics of their credentials, but there was not a problem with having a significant number of qualified candidates."

  21. BDS – I had the same reaction to a well written article. I also had the same question: why no interpreter? I have to imagine that Cabinet has an interpreter or has had an interpreter in the past. And don't committees of the House of Commons need to have interpreters, even when they meet in private? And if translation of decisions is too slow, it would be a far smaller burden, in relative terms, to increase translation services, compared to the downsides well documented by Gardner and these solutions would address the issues raised so succinctly and compellingly by Grohier.

  22. I believe the author was making a relativist argument, not an absolutist one. He is saying, I believe, that the practices of the Court, and the traditional compromises expected of its members have always been towards accommodating unilingual anglophones and that the subconscious solution has been to appoint bilingual francophones.

    A hard core language warrior will fight this truth regardless of their side of the divide. But accept it objectively, and I believe he has a point.

  23. Thank you for that. Very interesting.

  24. I'm curious. All of you who claim that simultaneous translation is the solution, have you ever had to go to court and either argue your case or listen to an argument with a translation device stuck to your ear?

    You have got be joking.

  25. The important thing for me is that the institution serves me in French. Three of the judges come from Quebec, which ensures that there is 33 % of the court that is French-speaking. I don't need to be served by people who are bilingual. I need to be served by people who speak French.

    Funny thing about Madame L'Heureux-Dubé: she used earphones and an interpreter. Would she be bilingual enough to meet the test under the proposed law?

  26. And she shouldn't have to. That is the point. A whole lot is lost in translation. Especially in a legal argument.

    I know that when I have to listen to a press conference where both languages are spoken, I often flip between RDI and CBC so that I don't have to deal with the translation. It simply isn't the same.

    A presser is one thing but a legal argument? Canada has TWO official languages. You want to sit at the Supreme Court? Learn them. Simple as that.

  27. It's also worth noting that the court doesn't always sit with all nine. When it's a civil law issue, they usually sit 5, with the three Quebec judges always on the panel.

  28. I don't know why it is that they don't have interpreters around for their deliberations, though I can see how having an interpreter trailing you around like a bodyguard every working day is simply impractical. I didn't cite this, but in the article I linked to, L'Heureux-Dubé says 90% of the Court's work takes place in English. So it's one thing to say high-level diplomatic meetings or Question Period can take place with interpreters, but even high-level diplomats and MPs probably don't spend 90% of their work day functioning in their second language.

  29. I would rather see the opposite. I think it is unfair to expect entry level public servants to all (or mostly) be bilingual, especially if they are not directly serving the public. But at the highest levels they should be and that gives them time to learn French even if they didn't take a lick of it in K-12 or PSE.

  30. Perhaps the reason why people have not paid attention to it is that Major is considered to have been a fairly good justice, while LHD is widely recognized (by anyone who does not think law is just another social science) as having been a disaster.

  31. Just about everyone else? Really?

  32. Justice Committee 17/06/09, Graham Fraser: "Again, I have a great deal of respect for Judge Major, but I'm not sure that somebody who doesn't speak the other language knows what he doesn't know. Donald Rumsfeld once talked about the known knowns and the unknown knowns. I don't know how a unilingual person can evaluate how important language knowledge is as a professional competence. By its very nature, if you don't speak another language, then you don't understand what you would understand if you did speak that other language."

  33. No one, including me, said mandatory bilingualism meant there would be no GOOD candidates. But it will rule out a large portion of those who would otherwise be considered, which means the choice will be made from a much-shrunken pool of candidates — and simple math says the BEST candidate will often not be in that shrunken pool.

    By the way, I want to thank Philippe for providing a model of constructive criticism. So many can't seem to write about this without making ridiculous insults and accusations, eh Eugene?

  34. If the Supreme Court of Canada is anything like the US Supreme Court (which is written about to a far greater extent), the judges do not have an interpreter present so that they can maintain complete privacy and speak with complete frankness. The conferences are judges-only, so their clerks, secretaries, etc., are all prohibited from coming in. True, they might be able to have one official interpreter who was always sworn to secrecy, but it might change the tone of the room in ways we can't really anticipate. And nevermind that even the best interpreters tend to break the free flow of conversation, as everyone has to pause after every single statement for it to be interpreted.

  35. And who is someone without legal training — someone like Graham Fraser, par example — to evaluate the importance of language or anything else to the professional competence of judges?

    Careful with this argument, Eugene. You'll wind up telling everyone in Ottawa to shut up and then you'd have no one left to argue with.

  36. Good point about the need to know French because the French versions are also authoritative and can occassionally explain something unclear in the English version.

  37. "Turns out the status quo does require substantial trade-offs, all of them borne by the Francophones on the Court."

    I was wondering about this after I watched Coyne on panel last week say unilingual judges were ok.

    I was amazed to learn that judges did not have to be bilingual but just about everyone else who works for government has to be, which is outrageous. And I thought Coyne's defense, it is ok to expect people in lowly, regular government jobs to be bilingual but people deciding the law of the land don't have to speak english/french, and that's perfectly exceptable, to be complete twaddle.

    Judges should have to be bilingual like everyone else who works for Fed government. I don't care if that would rule out people – I don't speak French so I can't get Fed job. I don't see why the rules should be any different for others.

  38. Plus, while the requirement might slightly restrict the pool for the next, oh, twenty years, there will be huge incentive for everyone down the line to actually learn French (or English) fluently. People are not picked out of the sky for these positions – you tend to know if you're maybe going to be in the running a while in advance as your career is progressing. So, you're at that point in your career where people are starting to mention you as a possible future judge on the Supreme Court. Maybe that's the time you start brushing up on the French (or English) you learned in school, the time you spend a six month sabbatical in Quebec (or Toronto), etc.

    Honestly, the real question is whether Canadians want an official rule saying that judges on the Supreme Court need to be bilingual or an unofficial practice in which all judges on the Supreme Court are bilingual.

  39. I would be interested to know, from anyone who has working knowledge, if Charles is right in supposing that our judges work in such strict confidence, if Cabinet has ever used interpreters, or how private committee meetings are done.

  40. Well, I think the EU has several languages of interpretation, and you would have to ask someone who knows, but I'm betting francophone politicians make a point of ding most of their business in french, so MPs would be used to listening to interpretation for long periods of time – particularly the unilingual francophone MPs.

  41. Madame L'Heureux-Dubé did use a translation device stuck to her ear.

  42. I'm not sure the distant prospect of an appointment to a bilingual Supreme Court really qualifies as a "huge incentive" to learn French. I mean, it's not even much of an incentive to law school.

  43. Exactly, Be_rad. I'm not claiming there's active discrimination against unilingual Francophones. I'm saying the Supreme Court we have today (as described by L'Heureux-Dubé) couldn't possibly function with even one unilingual Francophone on the bench. It doesn't strike me as an unreasonable trade-off, but it's a trade-off nonetheless. Let's not be obtuse about it.

  44. "Brushing up"? This is not cocktail party bilingualism we're talking about. It's a level of fluency sufficient for handling complex jurisprudence, a level which, I dare say, many native-speakers would struggle to achieve. It took the chief justice years of hard work to get up to what she describes as "moderate" oral fluency and years more hard work — in a bilingual work environment — to finally achieve full fluency.

  45. Hmm, I could swear the Gohier article under discussion contains testimony from someone with all the qualifications, legal and linguistic, not to mention the experience, to make that evaluation. Unless bizarro logic has now led some to claim a unilingual judge like Major is better at evaluating the importance of language than a bilingual one, like L'Heureux-Dubé? Curious. That sounds almost like the anti-factual, anti-empirical arguments so beloved of the Conservatives on crime and drugs matters. Unilinguals like Gardner & Major know better than actual bilingual jurists about the importance of language in legal affairs? Next we'll be privileging the testimony of well-meaning anti-drug hardliners over that of those who actually work on the front lines, who have actually seen things from both sides. I look forward to the expected columns now in favour of hardline anti-drug policies based on the deeply held convictions of the well-meaning ignorant.

    I don't know if Google translation will do the trick but you might want to actually read the Le Devoir article: http://www.ledevoir.com/politique/canada/287807/c

  46. I wasn't actually taking issue with the observation, necessarily, merely noting the absurdity of someone with no legal training making it.

    And what's a "unilingual"? Is that some strange, distasteful species?

  47. "And who is someone without legal training — someone like Graham Fraser, par example — to evaluate the importance of language or anything else to the professional competence of judges? "

    So I simply pointed out the obvious, that a bilingual former SCC justice is definitely someone with the ultimate qualifications to make that evaluation. An evaluation that is impossible for a unilingual. Just as it's impossible, according to you, for a bilingual without legal training to make such evaluations.

    I have nothing against unilinguals – some of my best friends are unilinguals, why, I remember this delightful unilingual I met once, so warm, so free and natural in its self-expression, how sad we bilinguals are so removed from our wild unilingual roots, out of touch with our natural selves, because of our overly intellectualised upbringing. Verily, far from disdain, I admire the noble unilingual savages, in all their primitive glory, etc. etc… ;)

    Come now. You can't have your cake and eat it too. Either bilingualism is essential (not simply desirable, but essential) for our highest judges in a bijuridical bilingual country, or it is not. The question comes down to the perceived importance of language as part of culture and the law. It seems hard to see how one can claim someone with no knowledge of the "other" language can more credibly claim bilingualism should be optional than someone with, using your own criteria, legal training, who actually knows both languages and says language skills are so important to the law that bilingualism must be obligatory.

    It seems easy enough to resolve the question. We poll all the bilingual lawyers and/or judges and ask them what they think, and abide by the results. We could even require a double majority, anglo bilinguals and franco bilinguals must both agree. I suppose the crucial issue would be to make sure we posed a clear question, so as we could ascertain a clear answer. I would even go so far as to say that the clearer the question, the lower the double majorities required to settle the matter.

    Best,

    EFL

    PS. Next column: "I was wrong on listening to the best experts for making public policy all along, one should go with one's gut"?

  48. Uh I wrote a reply and it seems to have disappeared, or maybe it never appeared – I was (am) out of the house, checking out some gear at the Apple store, checked in and typed away, so who knows what happened. Anyway, if Macleans can find it, good, if not, I'll check back later this evening and try to rewrite it. Basically, one can't have one's cake and eat it too. And some of my best friends are noble unilingual savages… ;)

  49. What about unilingual Anglophones in Quebec or Ontario that have a hearing in a court in Quebec. It's in FRENCH unless the matter has to do with a Federal Matter.

  50. Supreme Court justices are not collected off the street. Surely even rural francophone judges with wide enough experience to serve on this court would be bilingual.

  51. Quebec gets 33% of the Supreme Court judges under the Constitution (which by the way Quebec has never signed).
    However native French speaking Canadians are less than 20% of the Canadian population and this has percentage has been falling for 100 years.
    What possible argument can there be for a bilingual Supreme Court? Or for Bilingualism at all?

  52. Exactly Rob H! – why bilingualism at all? Seems to me that all this energy and Trillions of dollars spent on bilingualism up to now could be put to a use that is beneficial to all Canadians, despite their first language. How about an improved national wide educational system including improved facilities for our children country wide, how about affordable univeristy educations for all Canadian children for starters. Let's get out of this box!

  53. This debate is a red herring. Bilingual Supreme Court judges are not necessary because the Francophone ones have to be bilingual to get through law school in Quebec. It is basically impossible to be a member of the Bar in QC without having studied Canadian, American and British case law – almost always in English. So knowledge of English is effectively a professional requirement even for Francophone Civil Code lawyers.

    Yes, that means the Francophones are bearing the language burden on the Supreme Court. They must also bear this burden to become a lawyer in Quebec.

    It is not necessary for lawyers from English-Canada to be familiar with Quebec or France's rulings so it seems it would be unnecessarily restrictive to require it from English-Canadian potential Supreme Court judges. We cannot have a Supreme Court where the majority of judges are former lawyers from Montreal or Ottawa!!

    To be generous however, translators should be on-call so that Francophone judges can write their judgements in French. Writing at that level requires more subtlety than reading does. It would be a definite burden for them to have to render it in English.

  54. What's really going on?

    I wonder if people realize what's going on in this country. Quebec has spent the last 5 decades wiping out the English language and culture from the province with racist, anti-English language laws such as bill 22, 178, 101…This is a fact. Racism, intolerance, bigotry, ethnic language cleansing and human rights violations still going on in the province of Quebec.

    Part 1

  55. Ya, Quebec, where the English, Scottish, Irish, United Empire Loyalists… built up the province of Kebec (original native spelling) since 1763. Yes, the same province of Kebec where the Union Jack and Red Ensign flew until 1950. Again, just the facts…This lie, this hoax, this revisionist nonsense that Quebec is a French province and that Canada is bilingual is just that, an outright lie. Fact: We have been part of the British Empire since 1763.We were officially an English speaking country for over 200 years, again just the facts.

    Part 2

    • So "Kebec" is the native spelling ? How come, since the Indians had no writing system ?
      You're a joke.

  56. Almost 1 million people have been forced out of the province of Kebec due to this type of hatred/lie/spin… While all this is going on in Quebec they are forcing the French language outside Quebec in every province. Everything and anything the French demand they are getting across this entire country. They call it bilingualism (another lie never clearly defined on purpose). What are they really up to? “First Quebec, then we take over the rest of the country, one step at a time…through bilingualism…” PT, “How to take over a country through bilingualism…” SD. That's what's really going on. Wake up, people!

    Ask yourself a simple question. Why are we not teaching our real BNA history? Why are we not teaching our proud UEL history in our schools any longer?

    Now do you see what this bilingual judge's debate is really about and more importantly, who's going to put a stop to this revisionist nonsense?

    Quebec has said no to bilingualism and so should the rest of the country. Enough is enough!

    • Yes, francophones are taking over the country. It is so obvious. Their presence is growing everywhere. In few years, you won't be able to find a single anglophone in Alberta. Don't you see it ?!
      Your paranoia is unbelievable, your nickname pathetic. Did you know the proportion of francophones is falling, especially in the Western provinces and the Maritimes. Everywhere in Canada, including Québec (just ask anybody in Montreal) francophones has to fight the overwhelming power of assimilation, which is extinction. But that's probably what you want.
      By the way, the French were in Canada long before the English, and not even in Quebec and Acadia. But you call that "revisionist nonsense".
      By the way, the loyalist history is the history of traitors. Nothing to be proud of. Ironically enough, without bilingualism and francophones, Canada would be just a pale copy of the US. What would these loyalists fleeing the US would say now ?!
      And what you write about laws in Quebec is so biased – as the rest of your posts – that you can't be taken seriously.

  57. When will this pandering to Quebec END? 97% of the population in Canada excluding the lunatic nation of Quebec Speaks English.Quebec has no respect for the English language,but expects French to be respected throughout Canada.
    Will the ROC stop being so nice and stand up for yourselves, the rest of Canada is not bilingual in case you haven't noticed,its one big phony lie to keep Quebec in Canada.Enough already!!!!