SCC Bilingualism Debate is about Politics, Not Practicality

The odds of being struck by lightning during your lifetime in Canada are about 1 in 3,000.  With approximately 100,000 lawyers in the country and only 9 positions on the Supreme Court of Canada, the odds of any particular lawyer making it to that court are probably lower than the odds of a lightning hit. 

Lawyers generally don’t spend much time worrying about lightning.  Likewise, few will be willing to devote large, ongoing blocks of time to preparing themselves for an SCC appointment either, since the chances of it ever happening are so remote.   It’s simply not a rational thing to do when there are so many competing demands on your time.

Bill C-232, currently before the Senate, would require all new judges appointed to the SCC to understand French and English “without the assistance of an interpreter”. This requirement would effectively bar a huge percentage—probably the vast majority—of Canadian lawyers who are not fully bilingual from ever being eligible for the top court.  The loss of many candidates who might otherwise be excellent choices should trouble us all.

Proponents of the bill, including Liberal leader Michael Ignatieff, have said dismissively that Anglophone lawyers who feel miffed by their sudden disqualification should “study a little French.”  But most Canadians already do study “a little” French.  I studied it for 8 years at school and university, several decades ago.  I can get around France without going hungry, but I couldn’t follow complex legal arguments in rapid-fire French, let alone pose questions to counsel.  This kind of linguistic competence can usually only be acquired by immersing yourself for at least a year or two in circumstances where you have to speak the language routinely, every day, including the specialized vocabulary pertinent to law.

If Bill C-232 is intended to promote bilingualism among lawyers, it won’t work very well.  Lawyers won’t put their practices, their families, and everything else in their lives on hold for such a long-shot. 

So what else might the bill achieve?  Proponents argue that it will prevent the possibility of judges misapprehending oral argument, since they will be able to hear it directly from counsel’s lips rather than through a translator.

Various lawyers, including Sébastien Grammond writing in this space (?) on May 21, have complained about particular instances of inaccurate translations within their personal knowledge.  But in all the debate over this bill, both in Hansard and in the press, I have not seen anyone point out even a single instance in the court’s 143-year history where a case appears to have been wrongly decided as a result of translation errors.   There have always been a few bilingual judges on the court.  Surely if the unilingual judges were making errors due to not understanding what was said, this would be plainly reflected in some dissenting judgments.

There’s a simple reason why such examples are non-existent: oral argument is just one component of what the court considers when formulating its decisions—and perhaps a minor component at that.  Indeed, Justice Ruth Bader Ginsburg of the U.S. Supreme Court said in 1999: “As between [written] briefing and argument, there is a near-universal agreement among federal appellate judges that the brief is more important—certainly more enduring.  Oral argument is fleeting—here today, it may be forgotten tomorrow, after the court has heard perhaps six or seven subsequent arguments.”  Eugene Meehan, a Canadian lawyer with extensive SCC experience, has made similar observations.

But just in case, the Supreme Court has numerous additional resources available to it, especially these days:  videos of the oral arguments, transcripts in both official languages, the factums filed by counsel, the decisions of all the courts below, the commentary written by academics as the case worked its way up the appeal ladder, the opportunity to discuss the issues with their colleagues, and the opportunity to have their law clerks ferret out any obscure points requiring clarification.

What degree of linguistic competency would satisfy critics like Mr. Grammond?  If the court’s current highly skilled translators—people who have made legal translating their life’s work—nevertheless make mistakes, isn’t it likely that a judge who had learned a second language merely for casual use will make even more mistakes?  Might we not end up with more misunderstandings, rather than fewer, by substituting a legal scholar’s hobby French for a language scholar’s professional French?

Or must we select only judges with a Pierre Trudeau-like mastery of both languages?   This would reduce the pool of candidates even further.  And we can’t keep ignoring the elephant in the room:  the pool would be heavily skewed towards candidates from francophone backgrounds, since a much higher percentage of francophones attain full bilingualism out of commercial necessity. 

Anglophones fear, with some justification, that the sought-after linguistic skills will come bundled with a particular ideology.  By imposing a seemingly neutral linguistic requirement, parliament might be actually imposing a minority philosophy or worldview on the unwitting majority.  Is this result inadvertent, or deliberate?  Since no other justification for the bill makes sense, one can’t help suspecting that this is its real goal. 

What would today’s court look like if Bill C-232 had been enacted, say, 21 years ago?  Chief Justice McLachlin probably would not have qualified.  Her office told the Ottawa Citizen that at the time of her appointment, she had “good reading French and moderate oral French.  She continued to study French once she was appointed to the Court, taking lessons regularly for several years…”

What about the others?  The Supreme Court told me it was “unable” to answer that question.  “Unable or unwilling?” I pursued.  “The Court does not keep records of which…Justices used interpretation in the past,” they wrote me.  “But there’s only 9 of them—can’t you just ask them?” I persisted.  At that point, the court stopped replying. 

However, it seems likely that several members of the court attained bilingualism only after being appointed.  Compulsory language studies for SCC justices, once appointed, might be a reasonable requirement to impose.  But changing the rules of the game when there is no realistic opportunity for today’s crop of 55-year-olds to qualify is not fair to them, or to Canadians. 

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