[lg policy] Canada: Minister: Bilingualism not priority for judge..

[Harold Schiffman]

Content about Language policy

Minister: Bilingualism not priority for judge...
November 12, 2012

 OTTAWA — Bilingualism will never trump merit or the ability to get
along with colleagues when it comes to appointing judges to the
Supreme Court, Justice Minister Rob Nicholson argues in a recently
released letter. The three-page letter, dating from 2011 but only
recently released under federal access to information laws, makes the
case that bilingualism is ensured through legislation that requires
three Quebec judges on the Supreme Court and 15 for the Federal Court
and Federal Court of Appeal.

The question of whether the nine judges on Canada’s highest court
should be fluent in both official languages has been bitterly
divisive. The Harper government has defended its appointment of two
unilingual English judges to the high court, saying that judicial
competence should be the overriding factor. Nicholson’s letter —the
recipient’s identity is censored — expands on the reasoning of the
government, which faces having to replace two more high court judges
in the next two years.

The laws that guarantee Quebec judicial representation “ensure that
the bi-juridical and bilingual traditions of our country are
recognized and reflected in the composition of these federal courts,”
he writes. “However, the overriding consideration for all judicial
appointments, including those to the Supreme Court of Canada, is
merit, based on legal excellence and personal suitability.”

That collegiality is rated high should come as no surprise. Supreme
Court justices work long hours in a largely confined and rarefied
setting. The path to a Supreme Court ruling usually starts with a
closed-door meeting of the justices to discuss an appeal they have
just heard, to air their differences, and to come to a broad
conclusion.

Out of that conferencing, the judges decide who will write the court’s
decision, and if necessary, the dissenting minority opinion.

Creating a high court that reflects Canadian diversity has, at times,
been a thankless task.

The government recently came under fire for its most recent Supreme
Court appointment: the fully bilingual Richard Wagner from Quebec.

That’s because Wagner’s appointment reduced the number of women on the
Supreme Court to three, the lowest in years.

Nicholson’s letter touched on the gender balance as well, indicating
that bilingualism is but one of several factors in creating a diverse
court.

“The government is committed to ensuring that the Supreme Court is
reflective of the society it serves, and places great importance on
ensuring that issues of gender balance, diversity, bilingualism and
regional representation are carefully considered,” it states.

Prime Minister Stephen Harper was criticized for appointing unilingual
Ontario anglophone Michael Moldaver to the Supreme Court in 2011, and
for his appointment of unilingual anglophone Marshall Rothstein five
years earlier.

The NDP has unsuccessfully proposed legislation that would have
imposed a mandatory language requirement for new Supreme Court judges.

At various times, MPs have taken swipes at Moldaver and Rothstein
because they can’t speak French.

In 2010, retired Supreme Court justice John Major returned fire when
he spoke strongly against the need for mandatory bilingualism in the
court, saying it would disqualify most qualified candidates —
especially in Western Canada.

A patient lying on an operating table likely doesn’t care if his
surgeon can speak both French and English, Major said.

Harper was also heavily criticized last year for naming the unilingual
Michael Ferguson to the office of auditor general.

The NDP has proposed a new bill that calls for 10 senior officers
appointed by Parliament to be bilingual.

The bill, which is to be debated in Parliament this fall, would
include the auditor-general, chief electoral officer, privacy
commissioner and commissioner of lobbying.

In his most recent report, official languages commissioner Graham
Fraser noted controversies surrounding the appointment of judges and
the auditor general.

http://thechronicleherald.ca/canada/170610-minister-bilingualism-not-priority-for-judge-selection.


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