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In defence of a bilingual Supreme Court

Graham Fraser, Canada’s Commissioner of Official Languages, on why Trudeau’s policy on bilingualism on the Supreme Court just makes sense


 

Night photo of front facade of the Supreme Court

MAC33_BILINGUALISM_POST01Graham Fraser is Canada’s Commissioner of Official Languages.

Prime Minister Justin Trudeau caused a flurry of comments with the announcement that the vacant position on the Supreme Court will be filled following an evaluation by a panel that considers applications from eligible lawyers and judges.

Oh, and by the way—and this has raised some eyebrows—all the applicants must be functionally bilingual.

I think this is an essential requirement for serving on the Supreme Court, and long overdue.

The announcement has provoked some predictable reactions: that requiring bilingualism is unfair; that candidates should be chosen because of their legal skills, their knowledge of jurisprudence and their competence, not because of their language skills.

First of all, unfair to whom? Those who claim that requiring bilingualism is unfair are usually thinking of regional balance, because the requirement is unfair to lawyers and judges who never took the trouble to learn Canada’s other official language. I tend to think about whether it is fair to Canadians and their lawyers whose cases are before the Supreme Court. The court system needs to be fair to someone who has argued a case in French at every level in Quebec and now has to decide whether to plead part of the case in French and part in English, or to trust that the interpreter will grasp the nuances of the argument. Let’s ask Sébastien Grammond and Mark Power, who put it in a paper for the Institute of Intergovernmental Relations at Queen’s University: “Francophone litigants before the Supreme Court face a challenge that is not shared by their Anglophone counterparts: to attempt to persuade judges who do not understand the language in which arguments are presented.”

In fact, bilingualism is not merely an asset, it is an essential qualification for a Supreme Court judge. Canadian laws are not written in one language and then translated—they are drafted simultaneously in both languages. And when there is a variation in the meaning, it is the Supreme Court that decides which version better conveys the intention of Parliament.

There is also the question of understanding the documentation of the cases before the court. As a general rule, one third of the cases that come from provincial courts come from Quebec, and there are cases from other provinces that have been argued in French. In 2009, 22 of the 62 cases heard by the Supreme Court were argued partly or entirely in French. Those cases have been argued in French, the factums are in French, and in some cases the decisions are only in French. A judge who does not read French has to depend on a memo—known as a “bench memo”—written by one of his or her clerks, presuming that the judge has hired a bilingual clerk. The clerks are often the very best graduates law schools have to offer, but they are still fresh out of school.

MORE: Emmett Macfarlane on a newly transparent Supreme Court process

Being “functionally bilingual” does not mean being able to write decisions in both languages or carry on dinner conversation in both languages. It means being able to go through the documents in a case, understanding the facts and grasping the nuances of the arguments being made before the court. Anyone who is not able to do that and has to rely on interpretation is simply not as competent as someone who can.

There is also the question of being able to work with colleagues. In a group of people, the presence of one unilingual person means that the whole group has to function in that language. A unilingual Anglophone judge—there has never been a unilingual Francophone judge—means that all of the conversations in conference must occur in English.

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Fifty years ago, it was that fundamental unfairness in the federal public service that led then-Prime Minister Lester Pearson to announce that the policy of the government would be to have a public service where everyone could use the official language of their choice in the knowledge they would be understood. Now, half a century later, people still argue that the requirement of bilingualism is unfair to unilingual English-speaking lawyers and the provinces they practise in—without thinking of the unfairness to French-speaking judges who are obliged to work in English.

For decades, ambitious politicians and public servants became bilingual because they understood that it was not only a leadership requirement, it was a leadership skill. It was necessary in order to understand the country as a whole. Ambitious lawyers and judges now know that bilingualism is not merely an asset, it is essential. And in Canada, as a former French ambassador once observed, French is the language of ambition.

Chris Wattie/Reuters

Chris Wattie/Reuters


 

In defence of a bilingual Supreme Court

  1. This is still a very archaic way of thinking. Requiring bilingualism including French and English automatically rules out almost three quarters of the Canadian population for eligibility for this or really any federal position. Although important, French is a very low number of individuals in many provinces, particularly on the prairies and BC.

    Just for example, Saskatchewan on the 2011 census has both Cree and German as languages with higher representation than French in their overall composition. I would say a better rule for consideration would be to require bilingualism, period … and give preference to ANY one of the founding languages of Canada, which would include any of the languages of First Nations people in addition to English and/or French. The writer speaks about not knowing French like it is laziness that causes people to not know it … when, in fact, it is an entirely irrelevant language for business on much of our land mass. Encourage diversity through insisting on bilingualism and multilingualism, not saying that they must be just these two language groups in isolation … state that they must have one of the two ‘official’ languages as a starting point, and then a second language is a requirement.

    • Every language on earth is spoken in Canada

      We only picked the two biggest ones to be our official languages

      Chinese is the third….wanna try that?

      You guys ever going to get off the farm?

    • Maybe because French and English are the only two official languages of this country and should remain so for historical reasons. There are privileges associated with founding a country and rightfully so. The presence of other languages in our landscape should not cause the rights of either of the two founding nations to be diminished. Doing so is to ensure their inevitable demise. What we have in Canada is a dual melting pot with special allowances provided for native languages. These two languages should therefore have equal status before the courts of our land and applying judges should speak and understand both of them equally in order to be chosen for these positions. A unilingual francophone has never been appointed at this level but many unilingual anglophones have. That just shows you where the bias lies and whose rights are not protected. This chosen path is the right one for all Canadians.

      • This is just another example of language and culture myth being sold as reality. One myth is that we are a bilingual country. No, we’re not. We have a bilingualism policy, but we are far from bilingual. Three quarters of us are basically unilingual Anglophones. Far less than one in ten of us is a unilingual Francophone. Everybody else falls into that other 15-20%. However, a great deal of federal social policy is written as though most of us are bilingual. To entrench bilingualism as a requirement for high federal office is an assault on both reality and liberty.
        The other myth is the claim of two “founding nations”. France abandoned all of her North American territories more than 60 years before Confederation, and her Canadian ones decades earlier. British rule granted the descendants of the settlers of New France legal, religious, and political liberties unheard of in France. There were no defining legal norms contributed by the French that altered our body of laws or society in any meaningful or notable way that would justify this continuous myth of them being a “founding people” any more so than the thousands of Scots and Irish who were also founding peoples of Confederation.

        • See, this is how we can tell you don’t have a degree.

          • Just as your posts let us know you don’t either…

          • 3, cutie.

        • The second half of your comment is completely inaccurate. No credible historian would back up the claim that the French were not one of the founding peoples of the country. You can’t rewrite history just because you resent French for not having bothered to learn. As for demographics, unilingualism isn’t something to celebrate. Europeans manage to pick up 3 or 4 at minimum and we’re just as smart as them, no?

  2. This is a great step forward for Canadians. It is ignorant to the Canadian people if the two officially recognized languages are not represented in all levels of government, especially in the justice system. This is an important step forward that demonstrates the importance of bilingualism in Canada, and its culture.

    • The problem, Mr Lavigne, is that enforced bilingualism within the pubic sector adds unnecessary costs while being discriminatory at the same time. There is zero need for bilingualism in most of the country. making it a requirement is active discrimination against those who would wish to work in the public sector, yet are unilingual Anglophones. In the judiciary, it means that high level bench positions will only be open to people who have spent time that could have gone towards studying case law studying language instead. The hard fact remains that Canada is basically an English speaking country, with small, isolated pockets of Francophones.
      Bilingualism as a policy was meant to expand the use of French nationwide. Despite the expenditure of enormous amounts of finite resources to that end, we remain an English speaking country with small, isolated pockets of Francophones. By enforcing an additional aspect of that policy, we are stripping another layer of liberty away with no foreseeable or discernible benefit to the populace. There is no known upside to that.
      Instead of doubling down on a failed policy, we should be backing away from it. That’s what evidence-based policy is all about, after all. Start with the elimination of the Commissioner of Official Languages, and all that entails, and go from there. The bottom line is that you can live in a free country, or one with an official language law, but not both. I choose liberty. Which do you choose?

      • The Canadian Chart of Rights and Freedoms dictates equality between the two officially recognized languages in English and French. As stated in this article, 22 cases out of 62 presented to the Supreme Court were partially or entirely argued in French in 2009, just over 35%. Shouldn’t everybody be heard equally without having the need to use translation services which could degrade the information presented to an English only judge.

        • On the other hand, the bilingual requirement makes it very hard to maintain regional representation. NL has yet to have a judge on the SCC; this move will pretty much guarantee they never will. Odds are, if Atlantic Canada is to retain a seat, the region will be restricted to judges from NB.

          And what about the legal scholarship aspect? Is it better to have a bright legal mind that’s unilingual, or a bilingual one that’s mediocre? Not to imply a bilingual judge will necessarily be mediocre, but you could be eliminating otherwise excellent choices if you put bilingual as an absolute necessity.

          • I am originally from Ontario and now live in New Brunswick and have been brought up in an English environment at home and a French environment academically. I now work in a bilingual environment and my bias is to have equal access and quality of service to both English and French individuals. Although the best candidate may be unilingual in terms of experience, they indeed would not be the ideal candidate for Canadians seeking fair and just treatment. The SCC is composed of many judges and should represent the Canadian spectrum. Not every judge, in my honest opinion would need to be bilingual but there needs to be fair representation with ability to serve the needs of Canadians.

  3. Why is it that westerners….right-wingers….regard knowledge of any kind as somehow evil and offensive?

    Do you enjoy being backwards?

    • Oh Phleeze Komarade E1 there is only one and a half provinces that speak Frog they are the clueless ones…

      • The French founded Canada…..60 countries in the world speak English and 40 speak French…..so if you are bilingual here you can do business in 100 countries in the world….oh wait…..you guys are still shoveling shit

    • EmilyOne – that was a little on the hateful side, and not exactly in line with the comments that preceded it. I have worked in offices where certain positions are, by requirement, bilingual French/English … and the recruiters literally have to look outside of the province to find the right candidate for just that single requirement. No one is anti-French, I’m all for people knowing multiple languages, there is just a misunderstanding that there is literally nowhere after high school in many provinces where one could continue to grow or use French. I took French from grade 7 through 12 by my own choice, and made it a priority … as soon as I graduated, there wasn’t a single employer or even occupational category (outside of the federal public service) where one could even find Francophones.

      This isn’t anti-knowledge, this is just acknowledgement that I see French in much higher usage in Ottawa, across Quebec, and into New Brunswick when I’m travelling on business … but nowhere else is it the language of meetings, of courtrooms, or commerce in Canada. I would be equally comfortable with a bilingual requirement giving equal priority for a Cree/English supreme court justice. At least Cree, Ukranian, or German are languages I could find people speaking around me, and be able to maintain my language skills. I tried to develop my French skills, it just isn’t part of our culture so there is zero opportunity to develop or maintain them here, short of moving.

      • Oh well….if there are no French speakers on your back porch….then none exist eh?

        Get off the farm….join the world.

        • I don’t think you read my post. I took french education for 6 years, because it was offered and available as an option. I’m not a farmer, I have a master’s degree and work in a professional office. I just have zero ability to maintain or use French in my everyday line of work.

          My point is, I probably know more than 40 lawyers through my line of work, some great, some so-so. Only 2 that I’m aware of could be considered ‘bilingual with French as their second language’. They are lawyers and judges, and not a single one of them has ever been in a French language courtroom. This type of policy essentially means we exempt all but a very small fraction of highly qualified lawyers from consideration because, like myself, they weren’t trained in French. Their workplaces (the courtrooms and law firms) don’t use French, so there is literally no opportunity for some of the finest legal minds around to even put their names forward.

          I would say your brutal comments expose an equally limited experience with Western Canadians and the diversity that exists here. Just the fact that you use farm references as an insult makes it unlikely you have ever travelled west of the Manitoba border. I’m in a riding with a semi-retired female NDP candidate in my local legislature, and my previous federal MP was a Sikh Conservative. Neither speak french, both know at least 2 languages.

          • You guys can’t cope with French so somehow that’s the fault of the French?

            It’s not that you live on a farm…..it’s a farm attitude.

            Yes, ‘bilingual’ means 2 languages….could be Hindi and Farsi for that matter……but our 2 official ones are French and English.

            French is the mother tongue of about 7.3 million Canadians (22% of the Canadian population, second to English at 58.4%)

            So you’ll just have to get over it.

          • I can cope with French, I even aspire to know French, it just isn’t an everyday option to learn or maintain on 90% of our country’s land mass, so shouldn’t be a requirement for a public sector job. According to Statistics Canada (Report: Linguistic Characteristics of Canadians), there is currently 17.5% of the Canadian population who are functionally bilingual in French and English (excluding all other forms of bilingualism). These figures hide the fact that 15% of those 17.5% are centred in just Quebec or New Brunswick. That is an extremely low percentage of functionally bilingual individuals living outside of those two provinces.

            Yes, we are proudly bilingual in history, but the telling quote from that very same StatsCan report was their observation on the growth of bilingualism in Canada being “This growth of English-French bilingualism in Canada was mainly due to the increased number of Quebecers who reported being able to conduct a conversation in English and French.”. English isn’t winning, and that isn’t my argument … it’s just that French isn’t making any inroads anywhere else in Canada as we are seeing surges in Philipino, East Indian, Chinese, and now Syrian immigrants that now underpin our diversity of both language and culture.

            What is a farm attitude? Hard-working? Community builders? Willing to work as free enterprise AND simultaneously within cooperatives to enjoy the benefits of working together (aka. as a union or bargaining body)?

            Did I mention I sponsor one of my employees, who lives in a bilingual part of Canada, to continue to improve her French language skills and keep some career paths open for the future. It just makes sense where she lives, and is a good use of money for having those skills on my team.

            Put down the hate, and stop accusing others of hating. That is not anyone’s motivation. If I lived in Ottawa, I would speak French as well. Here, my wife and I volunteer teach English as a Second Language to incoming Syrian refugees, because it’s just what our local economy requires. I pick up a bit of Arabic along the way, and we all win.

          • allytay1….if you want to remain backwards it’s your choice

            Potash, prayer and petroleum ….the 3 P’s of prairie life

            The rest of the world will move on without you

        • Ah, Em… ALLYTAY1 gives you a fine, reasoned argument and all you got is insults? Why am I not surprised? I see you really put those three degrees of yours to good use; I’m thinking it’s 3 out of 360.

    • If we’re so backwards, how is it that I’m more knowledgable about the significance of the Louisiana Purchase, and its foundational role in Canadian history (yes, Canadian) than you, both in how it created an impetus for an independent Canada and how it represented an abandonment of French settlers and French governance in North America? You routinely prattle on about the Luddism and myopia of others, yet never once have you ever posted a sentence that indicates any kind of depth of knowledge about anything.

      • You aren’t. You’re just bullshitting again.

        • The truth is that if you don’t practice speaking the language…any language, you lose your ability to do so. My uncle did and French was his mother tongue. My neighbours are German. Their sons spoke only German before entering school. Neither can speak it as adults but they understand it. Stephen Harper learned to speak French for the job. Likely anyone with a knowledge of other languages could learn French so the commitee should widen their net to include judges who speak more than one language and are willing to learn French. It is quite foolish to believe that a judge who speaks only “functional” French as described in this article can be considered bilingual. Such a person could not fully appreciate any argument presented by a person speaking rapid, fluent French.

          • Yada yada

    • Cut the “westerners” BS. There are several Francophone towns in Alberta d*psh*t. If you truly lived in Cold Lake, you were one half hour from one, Bonnyville. In Alberta, prior to the NDP, a parent could chose to educate their child in whatever school they wanted, be it Arabic, Francophone, Spanish or science and the money from the government followed the child. It was touted as one of the most enlighten education systems in the world. For someone who claims to have 3 degrees and claims to have lived on an Air Force base in Cold Lake, Alberta for 6 years, you are certainly dense about the reality of Francophones and westerners.

      • ‘Westerners’ on here are the ones insisting nobody’s French Gage

        Pay attention.

        • What they are saying is, one doesn’t run into a French speaking individual at work everyday or in the neighbourhood so even if one speaks French, one doesn’t get to practice and remain proficient. It isn’t laziness or not caring, it is the fact that the overwhelming majority in the cities of the west, speak English and other languages. However, there are several small towns that are Francophone enclaves. I lived near one. Fahler, Alberta. You did too. Bonnyville. Now, are Bonnyville French and Quebec French the same? That is debatable. Bonnyville French and France French are not.

          • I speak metro French….standard French, and I get along just fine

            Now then the topic is the Supreme court not your misspent youth

          • Yes and obviously you get the opportunity to practice speaking it because in Ontario many people speak French in every community. Thus your skills are not rusty. Now before you are too hard on us westerns, think about the issue in reverse. Stephane Dion has in the past had struggles with English likely due to a lack of opportunity to practice speaking the language. It happens to people in all walks of life, not just westerners with apparent misspent youths.

          • Life is tough Gage…..only the strong survive. LOL

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