Canada's top court needs the most com petent jurists – and they're bilingual

[Harold Schiffman]

Canada's top court needs the most competent jurists – and they're bilingual
GRAHAM FRASER

Special to Globe and Mail Update

June 3, 2008 at 2:00 AM EDT

It is always unfortunate when misunderstanding and personal attacks
enter into the discussion of language policy. As a result, The Globe
and Mail has misrepresented the nature of Canada's legal framework and
tradition, and misunderstood the nature of linguistic duality in
Canada.

In a measured way on the editorial page (Jurists, Rather Than
Linguists — May 28), and in an ad hominem attack on Quebec member of
Parliament Denis Coderre written by Gordon Gibson on the Comment page
(To Mandatory Bilingualism, Just Say 'Non' — May 27), The Globe
published two defences of unilingualism on the Supreme Court. In one
case, the suggestion is that understanding French is only necessary
for understanding and being able to empathize with Quebec; in the
other, Mr. Gibson suggests that requiring bilingualism represents an
attempt to pack the court with French-speaking Quebeckers.

First, Canada is one of the few countries in the world with two
separate legal systems: common law and the Civil Code. While it is not
essential for all Supreme Court judges to be trained in both systems,
familiarity with the legal discourse of each one is essential.
 Second, Canada's laws are not written in one language and then
translated. They are written independently in each, and neither
version has precedence over the other. Translation doesn't help; the
judges of the Supreme Court, who are the final authorities on the
constitutionality of legislation, must be able to understand the
subtleties of both versions.

This is not a matter of accommodating Quebec, but of understanding the
country, its laws and its legal traditions. Mr. Gibson suggests that
it is discriminatory to have this language requirement for Supreme
Court judges. Surely, it is not asking too much to require that the
most senior judges understand the two versions of the laws of the
land. There are 600,000 bilingual Canadians in Western Canada — where
Chief Justice Beverley McLachlin comes from — and 30,000 students in
French immersion in British Columbia alone.

The editorial and Mr. Gibson both imply that simultaneous
interpretation is sufficient for a Supreme Court judge. Yet, a recent
report issued by a Senate committee cited research indicating that
there is a loss of at least 20 per cent of understanding in
simultaneous interpretation. Further, in arguments heard recently by
the court, the Chief Justice had to interrupt a French-speaking lawyer
in mid-pleading to ask him to slow down for the interpretation so that
Mr. Justice Marshall Rothstein could follow the lawyer's argument.

It is now exactly 20 years since the Official Languages Act was first
amended, and an exception was made then for the Supreme Court so that
it did not have to meet the language requirements of the federal
courts. In those two decades, we have seen the court fashion the
jurisprudence of language rights and, with almost every appointment,
become more bilingual.

It seems only reasonable to expect that law schools give their
students the opportunity to understand Canadian laws as they are
written, along with the two legal traditions in this country. It seems
equally reasonable to expect that lawyers and judges who aspire to sit
on the highest court in the land make the effort to learn the two
languages that are official in our country, the two languages that
express our laws, and the two traditions of our jurisprudence. I
believe that those whose understanding of the legal world in Canada is
limited to what has been written or said in only one language are less
competent, as judges, than those who understand the Canadian legal
tradition as a whole. However, it is particularly unfortunate when
disagreement on a matter of public policy leads to personal attack.

June 1 was the 40th anniversary of the death of André Laurendeau,
co-chairman of the Royal Commission on Bilingualism and Biculturalism.
In his contribution to the commission's report, he wrote eloquently of
the burden that the effective unilingualism of Canada's federal
institutions placed on the shoulders of French-speaking Canadians.
Since then, it has come to be taken for granted that Canada's
political leaders must be able to speak both languages so they can
speak to and understand all Canadians, regardless of their official
language. Surely the same standard applies to judges in the highest
court in the land.

Graham Fraser is Canada's Commissioner of Official Languages.

http://www.theglobeandmail.com/servlet/story/RTGAM.20080603.wcomment0603/BNStory/National/home

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