Minding the language of Supreme Court appointees

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New Brunswick MP Yvon Godin wants the House of Commons to approve a motion saying new appointees to the Supreme Court should be bilingual, meaning able to follow proceedings in both official languages without using an interpreter. Eight of the nine sitting justices already meet this criteria.

The Conservatives are opposing the motion, led by Justice Minister Rob Nicholson. Michael Ignatieff is likely to be embarrassed if some Liberal MPs break ranks to oppose it. The Bloc hopes it will be rejected, creating front page news in Quebec.

French has been a language of law in Canada for four centuries. The "custom of Paris" (1664) replaced various French provincial laws that had prevailed in New France since the founding of Quebec in 1608 by Champlain. The Civil Code of Quebec (1994) replaced the Civil Code of Lower Canada (1866). The British recognized French civil law as legitimate in the Quebec Act (1774), while English common law was to be enforced elsewhere.

The highest court in the land hears cases based upon both systems. It also gets referred to it, materials originally created in French, presented to it in French, and renders judgements in French. The Charter of Rights guarantees access to legal services in French "where numbers warrant it."

Some people do not think knowledge of French should be a qualification for being a Supreme Court judge; former Supreme Court Justice John Major for instance, and the predictable voices of CanWest Global preying on fears of bilingualism to try reverse the decline in their circulation. Should a unilingual Francophone be appointed to the court, it would be fun to see how those same voices would react.

Under the Charter, language is one of the most important issues the Supreme Court addresses in its work. Major is quoted as saying that qualifications for the Supreme Court should not include language, any more than qualifications for surgeons should be based on linguistic ability. Knowledge of the country, its culture, and its people do matter in law, and Major misses the point. Who would want to undergo surgery from someone who did not bother learning about one-quarter of the body?

Having French language competence is supposed to be a problem because in the West the number of lawyers and judges with French language abilities is small.

The reality is somewhat different. French language competence has grown in the West, among Anglophones that is, and has been expanding for decades. Immersion French works.

When former Supreme Court Justice Michel Bastrache addressed a meeting of French speaking jurists in Vancouver not only did he speak entirely in French, but so did two B.C. Supreme Court justices, who had decided to learn French, and done so on their own time. Many other Western Canadians, inspired by official languages legislation or not, have managed to learn French, including Albertans Chief Justice Beverly McLaughlin, and from a younger generation, Bank of Canada Governor Mark Carney.

Exceptional unilingual candidates for the Supreme Court could always make the supreme sacrifice of going off to Quebec City or the South of France, and studying the language for six, eight, or 10 months.

What this debate reveals is the problems surrounding French language and English language learning in Ottawa. Foolishly, in the 1970s language "training" was privatized. Instead of continuing to research and develop high quality educational programmes for second language education, Ottawa turned its back on its own commitment to provide services to the public in both languages. The use of French in the public service has suffered as a result.

Instead of viewing two languages as an expensive problem, it makes more sense to embrace official linguistic duality, and see how much good can come from having access to two of the richest cultural heritages in the history of humanity.

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