Bill on bilingual requirement for Supreme Court judges to be battled in the Senate

Bill C-232, an Act to amend the Supreme Court Act, was introduced as a private member’s bill by Yvon Godin of the NDP, requiring all appointees to the Supreme Court to be fluent in both official languages.

Andrew Coyne of Macleans notes that, “The court itself has always been bilingual, in the sense that anyone appearing before it has the right to plead his case in either official language. Yet, only a small minority of the judges themselves have ever been fluent in both. To hear evidence in the other language they rely on interpreters.” However, proponents of the bill argue that those who appear before the court should not only have the right to give evidence in their own mother tongue, but to be heard in it: interpreters, they say, sometimes miss little nuances of meaning. More importantly, they argue that it is a matter of competence. A judge who has not read French jurisprudence in the original is not fully versed in the law. A judge who cannot hear or discuss evidence without a translator is likewise handicapped, incapable of giving the same level of service to the court as his bilingual colleague. In the words of one commentator, “language is a part of ability.”

The bill was narrowly passed 140 to 137 in the House of Commons on March 31, with the Liberals, Bloc Quebecois and NDP together outgunning the minority Conservatives. However the bill now faces a tough battle in the Senate where the Conservatives enjoy a slim majority of 51 members to the Liberals’ 49.

Independent Senator Jean-Claude Rivest, the bill’s co-sponsor in the Red Chamber, says the fate of private member’s bill C-232 is uncertain. “It will be very close, because all the Liberals would be supportive and myself, as an independent, will vote in favour,” Rivest said. But “if two or three of the [five] independent senators vote against the bill, it will be very difficult to get the majority.”Rivest argues the effect of the bill has already been significant, however, since it has triggered a vigorous political and public debate over whether Supreme Court nominees should now routinely be functionally bilingual when they are appointed. Such a requirement would have shut out many eminent jurists — including Chief Justice Beverley McLachlin who hails from Alberta and became functionally bilingual by studying French after she joined the court.

Independent Senator Elaine McCoy strongly opposes Bill C-232. “I think it reduces the pool of available talent to a shocking degree,” McCoy told The Lawyers Weekly. “We have some outstanding legal practitioners in Alberta and to eliminate them from the pool of talent for this country would be, in my view, a shame. What we must keep our focus on is the quality of how they think, not how they speak.” McCoy said that, in her view, there have been no “miscarriages of justice” because a Supreme Court judge was unilingual. However Senator Serge Joyal said, “I think we have come to an age whereby it’s not too much to expect that the justices will be able to work in both languages,” he suggested. “I would understand that there are regions of Canada where the use of two official languages is not as daily as it is in Ottawa. But if you present yourself to occupy the highest office in land — whether as prime minister, or as leader of the opposition, or as Governor General, or as chair of one of the important Crown agencies…in the 21st century in only one language, I think you miss something.”

In an officially bilingual nation, this issue raises many valid questions, with many convincing answers. While this requirement would reduce the nominee pool of otherwise qualified and competent legal practitioners, it does not appear to be an entirely invalid requirement in a system where many legal and other proceedings have mandated bilingual provisions.