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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