Bilingualism Required at the Supreme Court of Canada
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Canada's House of Commons has passed bill C-232, which requires that justices of the Supreme Court of Canada understand both English and French without the assistance of an interpreter. This will become law unless vetoed by the Senate or denied royal assent by the Governor General (which is exceedingly unlikely). Amazingly, the bill is a private member's bill introduced by a member of the New Democratic Party, which holds only 36 of 308 seats.
There are two possible reasons for imposing this requirement. One is in order to prevent misunderstanding of oral argument by justices who are less than fully bilingual. There is, as far as I can tell, no evidence that this is a real problem. I have found only one case in which it has even been alleged and no consensus in the legal community that this is an issue that needs to be addressed.
The other possible reason is symbolism, and that appears to be the real motivation for this bill. MP Yvon Godin, the author of the bill, is quoted as saying:
How would you feel if you went to court [and] the person in front of you, who will judge you, doesn't know one word of English at all?
Of course, the scenario he mentions is unrealistic. The Supreme Court is not a trial court, and there are nine judges, not just one, several of whom are certain to be fluent in the language in which one's lawyer is arguing. Moreover, as is generally the case with appellate courts, most of the material on which the court bases its judgment is submitted in writing, in the form of briefs and the record. A precise understanding of oral argument does not have nearly the importance as a full understanding of the oral testimony of witnesses and questions and arguments by lawyers in a trial court.
I am, in general, in favor of bilingualism, but I have serious concerns about this bill. One is that we want the very best judges on the Supreme Court and that it is a bad idea to impose any requirement that may exclude an otherwise superior candidate. The second is that it will have have the effect of discriminating in favor of Euro-Canadian jurists from Québec and Ontario at the expense of those from the Maritimes, the West, and the North, of aboriginal people, and of Asian immigrants, such as the Sikhs and the Chinese. The fact is that most Canadians are not bilingual and do not have easy opportunities to become bilingual. I would hate to see an outstanding Inuk or Sikh or Sekani jurist barred from the Supreme Court because he or she does not speak fluent French, or a Montagnais because he or she does not speak fluent English.
Another problem is how the language ability of candidates will be evaluated. The level of competence at issue is very high as well as somewhat specialized. The mere fact that a candidate is able to carry on ordinary conversation or read legal documents is not enough to ensure that he or she can understand legal argument. Will candidates be required to pass an examination? I note that currently Canada has no system for vetting candidates for the Supreme Court. They are appointed by the Prime Minister. There is no system like that used in the United States where the President nominates and the Senate approves or disapproves after a thorough investigation and hearings.
Unless candidates are rigorously evaluated and the bar is set very high, it is very likely that justices will be appointed who pass as bilingual but who in fact are not entirely comfortable with one language or the other. With bilingualism a legal requirement for the position, such justices are likely not to seek assistance when they do require it. Moreover, such assistance will presumably not be on offer within the Court if as a matter of law it is presumed to be unnecessary. In this case, the law could actually increase the probability of misunderstanding.
Neal Goldfarb said,
May 7, 2010 @ 12:19 am
@Bill:
There's a third argument, as well. It's set out here by a law professor at the Université de Montréal
Readers who remember the Case of the Two-Million-Dollar Comma may not be aware that the decision that got so much publicity was ultimately reversed after consideration of the French-language version of the contract:
Brian said,
May 7, 2010 @ 12:38 am
The Law of Unintended Consequences stalks the Northern Lands.
Josh said,
May 7, 2010 @ 1:20 am
The only potential value I see is not so much for them to understand arguments presented in English and French, but to be able to issue their opinions and judgments in both languages and thus remove the potential for misinterpretation through a third party translator. Legal language is a sticky subject where a change in conjunction or definite/indefinite article can result in very different interpretations when applying the law. Having the same justice issue their opinions in both languages, there may be a lessened risk trying to interpret the justices intent vs. the error of a translator.
Of course, I still think it's misguided for many of the reasons you state, with the problem of vetting their bilingual abilities and passing up otherwise well-qualified justices because of their linguistic abilities being chief among them.
Barrett said,
May 7, 2010 @ 2:30 am
I think the top of the judicial branch should be bilingual. So should the Prime Minister and Governor General. Language has always been an unofficial prerequisite. Has there ever been a Justice who didn't speak English or French?
Phil h said,
May 7, 2010 @ 2:52 am
I have to disagree with your first worry: "we want the very best judges on the Supreme Court and that it is a bad idea to impose any requirement that may exclude an otherwise superior candidate"
This argument is constantly used to oppose positive discrimination, and it's almost always bogus. There are usually no independent criteria by which one candidate is objectively "better" than another. Requirements like this one are actually the beginning of the process of determining criteria, not a negation of existing criteria.
There may be problems with requiring just those two languages, but in general, I'm thrilled to see language qualifications being recognized as important.
Matthew B. said,
May 7, 2010 @ 2:57 am
I doubt this will have as much effect on the makeup of the court as you're making out. By law, three of the nine justices have to be from Quebec anyway, and there's a well-established tradition of having three justices from Ontario, two from the west, and one from the Atlantic provinces for the other six.
peter said,
May 7, 2010 @ 7:20 am
Although I am not Canadian, I too disagree very strongly with, "we want the very best judges on the Supreme Court and that it is a bad idea to impose any requirement that may exclude an otherwise superior candidate"
This view is profoundly mistaken, and its full-blooded implementation would be socially deleterious. We also want, as President Obama made very clear when deciding to nominate Justice Sotomayer, justices who are aware of the nature of the lives of the people who will be affected by their rulings. Monolingualism undeniably inhibits the development of such understanding and empathy.
Stephen Jones said,
May 7, 2010 @ 9:19 am
It gets to be fun in third world countries. The language of the courts in Sri Lanka is still English, but the police only speak Sinhala. No wonder the conviction rate is running at around 5%.
John Cowan said,
May 7, 2010 @ 9:27 am
Josh: The volume of legislation greatly exceeds the volume of Supreme Court decisions, and all of it is already issued in both English and French. Since nobody dreams of demanding that all members of Parliament be bilingual, it's plain that the problem of legal translation has been effectively solved.
More generally, the whole point of official multilingualism in a country like Canada, Switzerland, or India is to allow for individual monolingualism. In countries where many people are individually multilingual, as in most of sub-Saharan Africa, it's common to choose just one official language, frequently the colonial language since it equally disadvantages all ethnicities.
Bloix said,
May 7, 2010 @ 1:50 pm
Less than 20 percent of Canadians are English-French bilingual.
Most bilingual Canadians are Quebecois (even there, only 40% are bilingual), while in the rest of Canada less than 11 percent speak both languages. So the rule would provide yet another privileged position in the federation to the Quebecois, something that will not be appreciated, especially in the West.
http://en.wikipedia.org/wiki/Official_bilingualism_in_Canada
In the western provinces, the percentagesare lower: BC 7%, Alberta 7.5%, Saskatchewan, 5%, Manitoba, 7.6%.
Most bilingual Canadians, wherever they live, are Francophones who have learned English – not surprisingly, more members of the minority language group learn the majority language more than the reverse. This is especially true in the provinces which are overwhelmingly English-speaking. Virtually all Francophones in the western provinces learn English, while very few Anglophones learn French.
So this rule would bar 80% of the population from serving, disqualify all but a small minority outside of one province, and disqualify the overwhelming majority of native speakers of the main language.
And Canadian immigrant populations almost never learn French. So, for example, the rule would disqualify virtually all Canadians of Chinese hertigage living in Vancouver and virtually all Canadians of South Asian heritage living in Toronto.
I would think that the effects on the perceived legitimacy of the court, as well on the the qualifications of the candidates, would be severe.
q said,
May 7, 2010 @ 1:50 pm
But nobody's advocating for monolingualism. I read Poser as offering a "neutral" opinion on what qualifies as the "best judge." It's certainly a credible position that those with "understanding and empathy" are the best judges. And as Poser explained, requiring bilingualism is much more likely to inhibit the selection of the "best judges," no matter what your definition of "best" is (save for the definition that those who can understand English and French are the "best," which I find ludicrous).
This law simply makes it nearly prohibitively difficult for a minority lawyer or lawyer out of the West to become a Justice. Imagine if the United States required fluency in Spanish and English for its Justices; the demographics of our Supreme Court would very certainly be less representative than it is now.
JJM said,
May 7, 2010 @ 2:23 pm
Je suis canadien et je suis bilingue – mais je ne suis pas d'accord avec cette initiative.
We are increasingly creating a remote and technocratic group of public functionaries centred on Ottawa who do not reflect the aspirations of real Canadians (bilingual, unilingual or otherwise) whether out there in Calgary or down in the Beauce.
It's no wonder many of us become so indifferent to government.
Bloix said,
May 7, 2010 @ 2:38 pm
Fewer than 20% of Canadians are French-English bilingual, and outside Quebec only 11% are. The great majority of these are native French-speakers. (Francophones learn English in Canada for the same reason that people learn English anywhere else – it's useful for business and the professions.)
Few Anglophones anywhere outside Quebec speak French, and vanishingly small numbers in the Western provinces do. And almost no members of the large immigrant communities of Chinese and South Asian heritage speak French or have any desire to do so.
The plain fact is that Canada is not de facto a bilingual country. It's an English-speaking country with a large geographically compact and politically important language minority. Outside of Quebec and New Brunswick, French is of no more importance to daily and business life than Spanish or Chinese. Although the needs of the minority must be respected, the notion that the majority language population can be shut out of key positions in government seems bizarre and likely to cause damage to the federation.
Rebecca said,
May 7, 2010 @ 4:54 pm
I agree that the measurement for knowing either language would be an issue. I run in to this problem on a regular basis as an interpreter between ASL and English. Often people who think they know enough ASL to get by (whatever that means) will tell me they don't need an interpreter, and then they will horribly misunderstand what is being said. Often they will either blame the person signing by saying the dead person is unclear or not fluent or they will tell me they just need a little help, by which it seems they want me to interpret while pretending I am not interpreting. Either way, if they could just admit they need an interpreter the communication would be much clearer.
Bloix said,
May 7, 2010 @ 5:24 pm
"Monolingualism undeniably inhibits the development of such understanding and empathy."
I deny it. The bilingual population of Canada, except for a handful of Haitians and Africans, is lily-white. This rule will effectively bar minorities of Chinese, South Asian, African, and Latino heritage from sitting on the Supreme Court. If you believe that a Quebecois lawyer who learned business English in school is for that reason empathetic to the situation of a Pakistani immigrant family in Toronto – well, I have no hope for you.
G said,
May 7, 2010 @ 6:03 pm
In practice I doubt that this well be a large problem. Anglophones who aspire to national politics in Canada learn French – it's just a fact of life. The same is true for francophones, though most of them are already farther ahead in English. Leadership of a major political party or even most cabinet posts are effectively not open to monolingual speakers of either official language. Occasionally this excludes someone "qualified" – however I would question if this person actually is qualified if they have no exposure to French Canada.
So if this becomes an enforced requirement, the same thing will happen in the legal community – judges who aspire to serve higher courts will also learn French. Nearly everyone has had some level of French education in school, and someone smart enough to become a judge ought to be smart enough to get their French up to speed.
G said,
May 7, 2010 @ 6:05 pm
"however I would question if this person actually is qualified if they have no exposure to French Canada."
I should have said "…or English Canada". But in practice it is nearly always anglophones who have this issue.
giotto said,
May 7, 2010 @ 9:07 pm
Yes to G.
A jurist in Canada who cannot function in French should not be considered competent for the high court. Of course, as is so often the case when ethnicity intrudes, the issue of competence is a distraction. The most competent francophone lawyer in Quebec (however one might pretend to measure "competence") is not going to be appointed the Supreme court. But it is apparently fine for monolingual Anglophones to land there. Apparently some languages are more equal than others.
Biox said:
the notion that the majority language population can be shut out of key positions in government seems bizarre and likely to cause damage to the federation.
Short term the main result will be that the cranks at the National Post will have something to grouse about for weeks.
More long term, one suspects that jurists who hope to rise to the top will maybe, just maybe, become bilingual. G is correct: nothing prevents Anglophones from learning French well enough that they can read the civil code in French and hear Francophone witnesses. The trouble is that they don't. The numbers Bloix gives on bilingualism reveal a very ugly truth: Anglophones in Canada, especially in the West, are often actively hostile to the very idea of bilingualism. In this they are rather too much like their counterparts in the US and England. The linguistic jingoism of native English speakers is a powerful political force. It is evident in complaints one hears from Anglophone Canada about this bill. When they say "This bill will mean that we won't have the BEST jurists from the west on the court" you can translate that to, "We don't speak French, and we don't hafta learn French and we're not gonna. Na na na." (This should not be taken as an endorsement of Francophone linguistic jingoism; in Canada's language battles there are no angels.)
John G said,
May 7, 2010 @ 10:03 pm
The level of language needed to understand legal oral argument is very high. Lots of conversationally bilingual people never get that good. The level of simultaneous interpretation at the Supreme Court is very good. It is crazy to require the level of both languages that the Bill specifies.
It's a whole different question than being sufficiently bilingual to run for office or make speeches.
The criteria for being a judge in the SCC are pretty clear, and don't pass by multilingualism. And it's not as if we are trying to ensure that an adequate number of francophones get on the court, as one tries on some circumstances to have a 'representative' number of women or of various minorities on corporate boards or in Parliament. The bill is talking about 100% of the judges.
Apparently these days more anglophone residents of Quebec are biliingual than francophone residents. That is a radical change in the past 40 years or so. But it is very hard for someone more than 500 miles from Quebec to maintain good French – there just aren't opportunities to speak it, without either very good luck or a skewing of one's life choices to favour it over other things one might choose to be doing.
A lot of anglophone Canadians put their kids in French immersion schools (generally public schools), but most of those kids don't come out comfortable speaking French day to day, unless they also get a chance to live in a francophone community. There are some small pockets west of, say, Sault Ste Marie, but not many – three or four communities that spring to mind as 'well known', but it's a big country.)
BTW the Senate does not get a 'veto' of the bill. It has to pass it in order for the law to be adopted. If it does nothing, the bill dies. The Governor General does not have a serious right to refuse to assent to a bill passed by Commons and Senate. I doubt that a GG has so refused since the 19th century, and I expect it was rarely if ever done even then. (Technically it would be the right to reserve assent in order to consult head office, i.e. London, and London has not been head office in that sense since at least 1931, in practice earlier. Yes, I know about appeals to the Privy Council till 1949 and constitutional amendments till 1982, but they are not the same thing.)
Bloix said,
May 7, 2010 @ 10:47 pm
"a very ugly truth: Anglophones in Canada, especially in the West, are often actively hostile to the very idea of bilingualism."
I don't think it's an "ugly truth" that the residents of Vancouver, a large, cosmopolitan, and prosperous city with no Francophones at all, don't want to learn French. Why should they? Because there's a place two thousand miles away where the majority speaks French?
giotto said,
May 8, 2010 @ 1:52 am
There is a difference between not wanting to do something and being actively hostile to it. The hostility to French in the Canadian west is just a part of Anglophone Canada's anti-Quebec sentiments, which are indeed pronounced. I've heard more than my share from people who assume–because I am of anglophone background– that I will sympathize with their prejudices. And this ties in too neatly with the broader Anglophone reluctance to learn second and third languages–to pick up the sort of multilingualism that is quite common around the world and should be considered unexceptional. Multilingualism should be considered the norm among highly educated legal thinkers (if not intellectuals) from whom I would hope we are choosing our supreme court justices. Certainly the residents of Vancouver need not be forced into studying French, or any other language for that matter. I won't deny anyone the right to their linguistic parochialism. Where I grew up (in the US) that parochialism was a badge of honor! But I'm comfortable with the suggestion that we have higher standards for appointees to the Supreme Court.
I could I suppose give a more sustained answer to the question (why should people in Vancouver want to learn French???), but it would involve a long discourse on several centuries of France's contributions to world culture, and I trust most of us here are familiar with the highlights.
Dave said,
May 8, 2010 @ 8:02 am
First I'd like to correct the perception that only francophones are bilingual in Canada. This idea has been repeated here by some commenters. This is especially false when speaking of well-educated individuals. According to the 2006 census, of 4,655,765 Canadians with university degrees, 1,337,900 are bilingual (i.e. speak English and French). Of these:
– 598,900 have French mother tongue
– 478,780 have English mother tongue
– 234,830 have another mother tongue.
(The total doesn't add up because I'm omitting the few who reported multiple mother tongues.)
No doubt people with the intellectual ability to become Supreme Court justices are even more likely than the general population to be successful in becoming bilingual, should they set their mind to it.
It's not clear what Bill Poser is referring to when he suggests that the bill would "discriminate" in favour of Euro-Canadians. For one thing, ensuring the equality of English and French in federal institutions is a valid objective, so a bilingualism requirement cannot be discriminatory. Being bilingual in this regard is a qualification just like having a law degree. (Some ethnic groups might be more or less likely than others to have a law degree, yet it is a legitimate requirement for a Supreme Court justice.) Surely those who risk being discriminated against at the moment are French-speaking litigants.
Second, there is no reason to believe the Canadian-born children of immigrants are less likely to be bilingual than are other Canadians. (Naturally, immigrants, especially those who immigrated as adults, are less likely to be bilingual. But it is fair to restrict attention in this discussion to people who were educated in Canada.) I don't have specific figures in this regard, but here is a reasonable approximation. Among immigrants in the 15-24 age group in 2006 who had immigrated before 1991 (hence at age 0-10), the rate of English-French bilingualism was 23%. The rate of bilingualism for the same age group among non-immigrants (citizens at birth)? 23%.
The clear conclusion is that if there were any discriminatory effect, it would be against immigrants and not their descendants. With respect to these immigrants, it could equally well be argued that the requirement to speak English *or* French would be discriminatory, or the requirement to have a Canadian law degree.
About the Supreme Court itself, it should be understood that currently eight of nine justices are bilingual. When Marshall Rothstein addresses counsel pleading in French, he often prefaces his question with something like "Feel free to answer in English or French." Many answer in English, even if they're clearly much less comfortable in it. Thus there is certainly a perception among lawyers that pleading in French puts them at a disadvantage with respect to that justice. It is not yet the case that they present their entire argument in English, but the more unilingual justices there are, the more of a problem even that will be.
The same kind of perception exists at the European Court of Justice, where plaintiffs sometimes ask to plead in French (the only language in which cases can be heard without interpretation) rather than in their own country's language.
The perception that working through simultaneous interpretation places parties at a disadvantage was also shared by at least one Supreme Court justice. In her opinion in Société des Acadiens v. Association of Parents, Justice Bertha Wilson wrote:
"Simultaneous translation, which if conscientiously used allows some sort of interchange between the bench and counsel, may be a preferable solution to the need for a fully responsive bench [in comparison to having bilingual trial judges sit ad hoc at the appellate level]. […] Ultimately, however, any such measures can only be viewed as inadequate substitutes for true equality. […] [T]he inequality of status of a litigant who must present his or her case to a bench that is not fully able to respond must eventually give way to the escalating standard in s. 16(1) and (2)."
[…] "At a certain point, for example, the steps taken to upgrade the bilingual capabilities of the federal judiciary will lead the public to expect access to a bilingually competent court. Those expectations would then be not only legitimate but also the subject of constitutional protection under ss. 16 and 19."
http://scc.lexum.umontreal.ca/en/1986/1986scr1-549/1986scr1-549.html
It should be noted that Wilson's comments refer not to trial courts, but to appellate courts. We are talking about exchanges between the bench and counsel, rather than testimony at trials.
So the perception certainly exists that pleading in a language can be a disadvantage when not all the judges understand it. The fact that simultaneous translation can in fact be deficient is borne out in a case that is described in this news report from Radio-Canada (watch the video):
http://www.radio-canada.ca/nouvelles/National/2010/05/04/002-cour-supreme-interpete.shtml
Sébastien Grammond, Dean of Law at the University of Ottawa gives some additional arguments in favour of Bill C-232 in this piece:
http://www.ottawacitizen.com/opinion/op-ed/Unilingual+court+marginalizes+French+lawyers+clients/2991807/story.html
This includes the fact that factums submitted by parties are usually translated only into summary form in the other language. As a result, justices are dependent on their clerks for understanding a good deal of what is in factums in a language they can't understand.
Former Supreme Court Justice Claire L'Heureux-Dubé made the point in a recent interview with Le Devoir that even with a single unilingual anglophone justice, internal deliberations must be held in English only, forcing francophone justices to express themselves in their second language. Also, draft judgments tend to be written in English, to avoid delays related to translation. Considering this is now being done for the benefit of only one justice, this seems excessive.
http://www.ledevoir.com/politique/canada/287807/cour-supreme-le-bilinguisme-des-juges-est-essentiel-dit-claire-l-heureux-dube
Naturally, the current situation makes it impossible in practice for a unilingual francophone to be appointed, and L'Heureux-Dubé points out that none ever has. So Bill Poser should be as worried now about a unilingual Montagnais not being appointed as he would if C-232 passed. It is much more sensible, not to mention fair, to make passive bilingualism a requirement for everyone (as C-232 does) than to make active bilingualism a requirement only for francophone justices.
In an interview with Radio-Canada, L'Heureux-Dubé also made the point that (presumably in relation to the appointment process for John Major's seat on the Court in 2006) several bilingual judges had been on the appointment lists in the Prairies: for example, the Monnin brothers in Manitoba and Georgina Jackson in Saskatchewan.
http://www.radio-canada.ca/nouvelles/National/2010/04/27/001-cour-supreme-bilingue.shtml
Although L'Heureux-Dubé doesn't mention it, Constance Hunt of Alberta is rumoured to have been on the short list (of three names) for Major's seat, and she is bilingual. All of this is in the Prairies, which is supposed to be the least bilingual region of the country, and which supplies only one justice to the Supreme Court.
Contrary to Bill Poser's contention, interpretation will continue to be made available, since the parties need to understand each other. Also, since justices are required only to understand both languages, not speak them, there is no expectation in the bill that they will not ask questions in their own language.
Although the prime minister has in theory the legal right to appoint whomever he chooses, there is a process involving input from the bar association, a committee composed of specialists, and, in recent years, an all-party committee of MPs, which is generally respected. The process could certainly be made better, but the possibility that a justice could be appointed without a good sense of how bilingual they are is remote.
This point has been made by others, but it bears repeating. Canada is a bilingual country, and it has become expected that people aspiring to positions at the national level usually need to speak both its official languages. This is not discriminatory, but is a necessity to ensure that our institutions function in both languages, both internally and in terms of services offered to the public.
marie-lucie said,
May 8, 2010 @ 11:28 pm
There may not be many French-speaking communities in the West, but everywhere I have been in Canada (driving coast to coast) I have encountered French speakers, and hardly any of them were tourists.
With respect to immigrants not learning French, it should be noted that a great many immigrants who settle in Quebec already speak French: they come mostly from countries where French is either the official language or a language of prestig, as in many African countries, Haiti, and several others such as Egypt or Romania. But there are French classes for other immigrants in Quebec just as there are English classes in other provinces.
It is true that there is no practical reason for a Chinese immigrant to BC to learn French, but neither is there for a Haitian immigrant to Quebec to learn English, if they want to stay in the same province. But their children probably will learn the other language: witness the popularity of French immersion programs in schools throughout Canada (unfortunately the demand outstrips the supply of qualified teachers).
Adult government employees whose positions require a degree of bilingualism (there are several levels) are provided with paid language training by the government (the armed forces are another example). An anglophone friend of mine from Ontario, a fromer French teacher who speaks French and German, is married to a senior civil servant who frequently attends meetings with peers from all parts of the country. He did not learn French as a youngster but was required to go through the government program and attain a certain level of competence. In spite of not being terribly interested at first, or gifted for language learning, he got to the point that he can make presentations in French to colleagues and participate in discussions. His French is far from perfect, but serviceable (he would not write reports in French, but manages quite well with oral communication at the level required). These programs (schools and government) have been in effect for several decades now.
High-level politicians (such as the Prime Minister) are not required by law to be able to speak the other official language, but it is now largely expected by the public, and political candidates at the national level make sure they take lessons in the appropriate language if needed. So an ambitious anglophone lawyer hoping to someday sit on the Supreme Court should find nothing particularly strange about being expected to show adequate competence (not perfection!) in French: similarly ambitious francophones have always had to take it for granted that they need to show a high degree of competence in English.
Anonymous Anglophone said,
May 20, 2010 @ 11:32 pm
Sounds to me like someone’s trying to hasten Alberta’s ultimate destiny as the 51st state…