Canada deserves better: Functional bilingualism for SCC appointments is not enough

In recent days, there has been much talk about the requirement that Canadian Supreme Court justices be functionally bilingual.  Coverage of the appointment of Malcolm Rowe from Atlantic Canada has fuelled criticism of this requirement.  Much of the criticism is well-considered, but ultimately none of it addresses the basic fact that the laws of Confederation exist in two separate and equal languages.

Quite frankly, functional bilingualism a bar set too low.  I say this as one who advocated the Western Canadian position and helped to broker passage of the CBA’s 2010 compromise resolution on bilingual SCC judges.  Since then, I have become more sympathetic to the Québec position which leads with the unassailable reality that a unilingual judge can only read 50% of the text of the country’s basic law.  Those who say one half is a mirror image of the other have not read the other half.  This, I think, was illustrated in my post on the Guindon decision.

Functional bilingualism is a standard that short-changes Canadians of jurists capable of empathy in the two official languages.  Give me a judge who can enjoy both Mordecai Richler and Dany Laferrière over someone fluent in the Income Tax Act.  The latter is much easier to master intellectually than the former.  From a legal perspective, Canadian legal French is bijural in that the civilian tradition for private law disputes coexists with a different lexicon for public disputes, the latter following the common law.  In my view, if a candidate for the SCC doesn’t get that, then they should not be considered qualified to be one of the nine judges presiding over our bilingual constitution.  The language of law is the product of a people and its consent to be governed.  It is not like reading a multilingual set of instructions for assembly of flat-pack furniture from Ikea.

We in the legal profession talk about linguistic capacity but we don’t really talk about it with even a basic appreciation of linguistics. Legal language is actually a meta-language which depends on fluency in the language of both everyday life and discourse of a people.  Language is not a code translatable like the Basic and Machine Object Code running our computers.  It is more like trying to make the same dry martini with different brands of gin and vermouth.  (Of course they will never be identical, but to make them taste similar a lot of extra work would be required!)   The functional bilingualism required to read an interoffice memo or follow a powerpoint in a business meeting in another language does not allow a judge to understand fully the emotion-laden language used, for example, between the complainant and an accused in a date-rape case.  English and French are actually very problematic because in 500 years the same words now mean entirely different things.  (Eg. the word “deception” (déception) means fraud in English but means disappointment in French.)

In the US, this debate has not arisen because there is no official language.  English is not the official language of England.  We (or our ancestors in Canada) decided to have official languages as part of the constitution of Canada.  Maybe one day we won’t have official languages because our demographic will be very different.  That is a political conversation we may one day have as a nation.  But for now, our land is a federal state, and our law is bilingual.  Our Supreme Court serves and protects the law of the land.  In order to do that, our Supreme Court must also be bilingual.

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